FPSLREB Decisions

Grievance referred to adjudication

[1]    Kenneth Turner was terminated on October 6, 2004, from his position as a Customs Inspector (Dog Detector Handler (DDH)) with the Canada Border Services Agency (CBSA), for an alleged assault on an individual in custody at the Ambassador Bridge in Windsor. He was part of the Program Delivery and Administrative Services bargaining unit (PM-02), represented by the Public Service Alliance of Canada (PSAC). He was subject to the collective agreement between the Treasury Board and the PSAC (Expiry Date: October 31, 2003; Exhibit G-1).

[2]    Mr. Turner filed four grievances: two against the termination of his employment, one against the ending of his authorized sick leave contrary to Article 35 of his collective agreement, and one alleging harassment as a result of the termination of his employment. At the hearing, the bargaining agent, on behalf of the grievor, withdrew the reference to adjudication of the grievance alleging harassment (PSSRB File No. 166-2-35898) and the Board’s registry subsequently closed the file. The two grievances relating to Mr. Turner’s termination of employment are almost identical. In PSSRB File No. 166-2-35899, his grievance states: “I grieve the letter of dismissal given to me on October 6, 2004.” In PSSRB File No. 166-2-35900, his grievance states: “I grieve the severe discipline given to me. This is punitive and against CBSA discipline policy.” In both grievances the requested corrective action is the rescission of the termination letter and the reinstatement of Mr. Turner as a DDH. There was no explanation provided as to why two grievances for the same disciplinary action were referred to adjudication. Mr. Turner’s representative, Daniel Fisher, submitted that all three grievances were “one and the same”. There is no difference between the two grievances relating to the termination of employment in my view and I have considered them together, as if they were one grievance.

[3]    On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (the "former Act").

[4]    Both parties made brief opening statements. Counsel for the employer called six witnesses and the grievor’s representative called five witnesses. In addition, the grievor testified, and an order excluding witnesses was granted.

[5]    Counsel for the employer requested that the identities of the victim of the alleged assault and his travelling companion be concealed. The grievor’s representative did not oppose this request. Accordingly, these two individuals will be identified as Mr. “A” and Ms. “B”.

[6]    During the course of the hearing, the grievor’s representative made a motion that I take a view of the detention area and office where the events took place. He submitted that it would be advantageous to view the layout and dimensions of the area where the alleged assault took place, as well as those parts of the building that were not captured by the video surveillance camera. Counsel for the employer submitted that this was not necessary.

[7]    Adjudicators have taken a view where seeing the physical location would assist them in reaching a proper determination of the relevant facts in dispute and where the potential benefit of a view would outweigh its practical cost (see Re Zehrs Markets Inc. v. United Food and Commercial Workers Union, Local 175/663 (2000), 91 L.A.C. (4th) 444). Based on the evidence presented to that point in the hearing, including a detailed floor plan (Exhibit E-2) and the consensus reached by the parties on the physical dimensions of the area, I ruled that a view was not required. On April 19, 2006, in an e-mail to the Board, the parties confirmed that they agreed on the dimensions of the floor plan.

Summary of the evidence

[8]    Kenneth Turner was a customs inspector in Windsor, Ontario, for almost 10 years. He had been selected for training as a DDH through a competitive process and at the time of his termination of employment he held a DDH position. The dog assigned to his care and control was named “Rosco”. Mr. Turner was stationed at the Windsor Tunnel, but was mobile and attended at other border crossings, including the Ambassador Bridge in Windsor. He had good performance ratings (Exhibit G-6), numerous letters of commendation for his work in the community and for local police departments (Exhibit G-18), newspaper articles about his dog demonstrations at local schools (Exhibit G-16) and a number of awards from his employer (Exhibit G-17).

[9]    On the evening of July 23, 2004, Mr. Turner was stationed at the Ambassador Bridge and on call to conduct canine searches of vehicles. There were two superintendents on duty that evening. The duties of the superintendents were divided between “inside” and “outside”. Sandra Rae was the “inside” superintendent and Mike Bechard was the “outside” superintendent. Ms. Rae was an acting superintendent and had been in that position for approximately six months. She has been employed as a customs inspector for approximately 16 years. Mr. Bechard had been an acting superintendent for two and a half years at a number of different ports of entry. He has been employed as a customs inspector for approximately 16 years.

[10]    At approximately 11:30 p.m., a vehicle with two passengers crossing the Ambassador Bridge into Canada was sent for an examination to the secondary area. Yvonne Harrison was the customs inspector who approached the vehicle in the secondary area. She reviewed the identification papers of the two individuals, Mr. “A” and Ms. “B”. She also conducted a search of the vehicle and found a dealer’s licence plate inside the vehicle. She was not satisfied with the explanation for the dealer’s licence plate provided by Ms. “B” and decided to do a computer check on the vehicle to determine if it was stolen. She also conducted a criminal records check on both Ms. “B” and Mr. “A”. The criminal records check revealed that Mr. “A” had a conviction in the United States for drug-related charges and possession of a firearm. She asked Kenneth Scherer, another customs inspector, to conduct a frisk search of Mr. “A”. Ms. Harrison testified that a butane lighter was found on Mr. “A”. Mr. Scherer could not remember if anything was found. Ms. Harrison then asked Mr. Turner to conduct a canine search of the vehicle. Mr. Turner obtained the keys to the vehicle and conducted a search. Mr. Turner returned after the search and indicated that a physical search of Mr. “A” might be in order, based on some observed indicators.

[11]    Ms. Harrison is Mr. Turner’s fiancée, and at the time of the incident she was in a relationship with Mr. Turner. She has known him since 1998. She testified that she did not want to do anything (referring to her testimony) that would harm Mr. Turner.

[12]    Mr. “A” and Ms. “B” were escorted to the detention area of the customs building by Ms. Harrison. Mr. Scherer was also present. There is a surveillance camera in the detention area and the events that follow were largely captured on the videotape (Exhibit E-1). The video is done in freeze-frame and results in a jerky movement. I viewed the videotape at the hearing and the witnesses who were present during all or part of the incident reviewed their role in the video as part of their testimony.

[13]   While reading Mr. “A” and Ms. “B” their rights, Ms. Harrison believed that she saw Mr. “A” put a small wrapper in his mouth. This movement by Mr. “A” is not visible on the videotape. She then ran toward Mr. “A”, yelling at him to “spit it out, spit it out”. She testified that Mr. “A” was trying to hide something by covering his mouth. Mr. Scherer also moved towards Mr. “A” and both he and Ms. Harrison made efforts to prevent Mr. “A” from swallowing. Douglas Bedard, another customs inspector, also assisted.

[14]    Mr. Turner was returning to the detention area because he had forgotten to return the car keys to Ms. Harrison. He heard the yelling and proceeded to assist in the efforts to prevent Mr. “A” from swallowing. He testified that he did not want Mr. “A” to swallow contraband, both for his own safety and to preserve evidence. All of the customs inspectors testified that Mr. “A” was clenching his jaw and pursing his lips in an effort to prevent them from opening his mouth. After a short struggle, he opened his mouth. The customs inspectors believed that this meant that he had, in fact, succeeded in swallowing whatever was in his mouth. At this point, both Mr. “A” and Ms. “B” were handcuffed.

[15]    Mr. Turner asked Mr. “A” what he had swallowed and Mr. “A” replied that he had not swallowed anything. Mr. Turner told him that if he had swallowed cocaine or heroin, he could die. Mr. Turner then proceeded to the superintendent’s office to discuss the matter with Mr. Bechard. Mr. Bechard testified that Mr. Turner did not come into the superintendent’s office. Rosa Quaggiotto, a customs inspector, advised him of a commotion in the back and he was intercepted by Mr. Turner in the corridor as he was walking towards the detention area. Mr. Turner told him that an individual had swallowed something and that if it was heroin or cocaine, it could kill him.

[16]    Mr. Bechard proceeded with Mr. Turner to the detention area to talk to Mr. “A”. Mr. Bechard asked Mr. “A” a number of times if he had swallowed anything and Mr. “A” replied that he had not.

[17]    Messrs. Bechard and Turner then walked back towards the office. Mr. Bedard testified that Mr. Turner was saying to Mr. Bechard that he had something in his truck that he was going to give Mr. “A” because he did not want to see him die. Mr. Bedard did not remember hearing a response to this statement. Mr. Turner testified that he told Mr. Bechard that he had a substance in his truck that could induce vomiting. Mr. Bechard testified that he told Mr. Turner “No, we’re not doctors” and that they should get the proper people to help. Shane McLaughlin, a summer student working as a customs inspector, testified that he heard Mr. Bechard say that he was not a doctor and that he was going to call the Emergency Medical Services (EMS). In his report, Mr. McLaughlin wrote that Mr. Bechard “proclaimed that he was not a doctor” and that he was going to call the EMS. Mr. McLaughlin was 38 feet away from Mr. Bechard when he overheard the statement. None of the other customs inspectors present heard this comment from Mr. Bechard.

[18]    Mr. McLaughlin testified that he considered himself a friend of Mr. Bechard’s and had socialized with him. He testified that he did not want to see him get into trouble. He spoke to Mr. Bechard after he wrote his report on August 6, 2004 (Exhibit E-11). Mr. Bechard told Mr. McLaughlin that he thought he had said to Mr. Turner that he was going to call the EMS. Mr. McLaughlin told him that he did and that he had heard him. He admitted that discussing details of the incident with Mr. Bechard or any other customs inspector was contrary to instructions from management.

[19]    Mr. Turner’s testimony about his discussion with Mr. Bechard differs from Mr. Bechard’s testimony. According to Mr. Turner, the discussion about the substance to induce vomiting occurred in the hallway, but the discussion ended in the superintendent’s office. Mr. Turner told him that the substance was syrup of ipecac. Mr. Bechard asked Mr. Turner what it was and Mr. Turner explained that it could induce vomiting. He then testified that he asked Mr. Bechard if he could administer it and Mr. Bechard told him to “go ahead”. In cross-examination, Mr. Turner admitted that he did not mention this statement to anyone prior to this hearing and that it was possible that Mr. Bechard did not say this to him.

[20]    Mr. Bechard testified that he returned to the superintendent’s office and called the EMS. He told the dispatcher about the suspected drug swallowing. The dispatcher asked him about Mr. “A”’s condition and gave instructions on what to do if he went into a coma, including preventing him from vomiting. Mr. Bechard was on the telephone for approximately three to five minutes.

[21]    Mr. Turner then proceeded to his truck to retrieve a red toolbox that contained the syrup of ipecac. Ms. Rae was at the cash station doing the “cash out” for the evening. Ms. Quaggiotto came up to her and told her there was a commotion in the back and that she should go and see what was going on. At that moment, Mr. Turner walked past her with the red toolbox. Ms. Rae asked what was happening and as she followed him, he told her that Mr. “A” had swallowed something and that he was going to administer something to get it out. Mr. Turner testified that she responded: “You would know more about this than I would.” Ms. Rae denies that Mr. Turner told her what he was going to do and she also denies that she made that statement. In her supplementary report of the incident prepared on July 29, 2004 (Exhibit E-4), she wrote that she found out about the syrup of ipecac when Mr. Turner walked past her at the cash counter. She followed him to the detention area.

[22]    Ms. Rae testified that when she got to the detention area she first tried to get a handle on which customs inspectors should be back there. She then sent some back to their stations. She is visible on the videotape watching the struggle with Mr. “A”.

[23]    Mr. Turner then put the syrup of ipecac into a syringe for oral administration of the substance. Prior to attempting to administer the syrup, the videotape shows Mr. Turner holding up the syringe so that all those present, including Ms. Rae, could see it. He then explained to all present what he was going to do. Mr. Bedard testified that Mr. Turner said: “I’m going to give this to him and I’m not going to watch him die.” Mr. Turner testified that he looked directly at Ms. Rae as he held up the syringe and said: “I’m going to administer it now.” He testified that he wanted to confirm that Ms. Rae was “alright” with him administering the syrup. Ms. Harrison also testified that Mr. Turner was speaking directly to Ms. Rae. Ms. Rae testified that when he was holding up the syringe, Mr. Turner was not addressing any one specifically. Ms. Rae did not say anything in response to his statement. On the videotape, Mr. Turner is looking around a customs inspector, as if to make direct eye contact with Ms. Rae.

[24]    Ms. Rae testified that she accepted what Mr. Turner was going to do; however, the “determination or the course of action was made” before she arrived. She did not believe that she had given him the authorization to proceed with the administration of the syrup. Mr. Turner testified that he believed that she had condoned his actions because she “just stood there”. He testified that, based on this communication and the fact that he had told her what he was going to do on the way to the detention area, he believed that Ms. Rae was “okay” with his proceeding with the administration of the syrup. He testified that if she had said no, he would have stopped his efforts to administer the syrup.

[25]    Ms. Harrison, Mr. Scherer and Mr. Bedard assisted in holding Mr. “A” down while Mr. Turner attempted to get the substance into Mr. “A”’s mouth. Their efforts were unsuccessful, in that most of the substance ended up on the walls and on the customs inspectors. Throughout the struggle, Mr. Turner was reported as repeatedly saying: “I’m not going to let you die.”

[26]    As the struggle continued, Ms. Rae asked if an ambulance had been called. Mr. Turner responded in what he and Ms. Harrison described as a “tone of disbelief”: “You mean one hasn’t been called yet?” Mr. Turner testified that he was likely so forceful in his response because he knew how quickly an ingested narcotic could kill. Ms. Rae then went into the superintendent’s office to confirm that the EMS had been called. Mr. Bechard was still on the telephone when she arrived in the office and he indicated to her that he was talking to the EMS. She then returned to the detention area.

[27]    After the syrup in the syringe was gone, Mr. “A” stopped struggling. Mr. Turner asked him if he would now agree to take the substance and Mr. “A” agreed. Mr. Scherer then passed to Mr. Turner what was left of the syrup in a small vial. Mr. Turner then administered the substance to Mr. “A”’, but Mr. “A” spat it out.

[28]    Ms. Rae testified that at the time of the incident she thought that Mr. Turner knew what he was doing and was acting in good faith, and that he was genuinely concerned for the health of Mr. “A”. Ms. Rae testified that she would not have allowed him to proceed if she had believed otherwise. She testified that it did not appear that Mr. “A” was in distress, but she did not look closely. She testified that there was a sense of urgency and that Mr. Turner seemed to know exactly what to do; she assumed that he had been trained on what to do in such situations. Mr. Scherer testified that he thought that Mr. Turner was doing everything in his power to help Mr. “A”.

[29]    Mr. Turner then left to get cleaned up. Mr. “A” was left on the bench, lying on his back. There was a customs inspector present at all times. Ms. Rae attended to Mr. Bedard, who had injured his knee in the struggle. Ms. Rae then spoke to Mr. Turner in an adjacent room about what he had administered. Mr. Turner told her that he got the syrup of ipecac for use on his detector dog. He told her that it was a common substance administered to anyone who ingested poison and was available “over-the-counter”. He also told her that if Mr. “A” had swallowed a bag of cocaine or heroin, the bag could break or be dissolved by the stomach acid resulting in Mr. “A”’s death. Mr. Turner testified that he had been told in his DDH training course that syrup of ipecac could be administered to children if they swallowed poison.

[30]    Mr. Bechard returned to the detention area and provided some first aid assistance to Mr. Bedard. Mr. Bedard told him that Mr. Turner had administered a substance to Mr. “A”.

[31]    When Mr. Turner returned to the detention area, he did not look at Mr. “A”, who was lying on his back, and proceeded to look behind the benches and on the floor. He testified that it was common procedure to check for contraband after a struggle with a detained person. Mr. “A” complained that his handcuffs were too tight and he was placed in an upright position by Mr. Scherer. Ms. Rae testified that she also requested that Mr. “A” be placed in an upright position because of concerns about Mr. “A” not being in the appropriate position if he were to vomit. A wastepaper basket was brought in for Mr. “A”. Mr. Scherer testified that Mr. “A” stated that his eyes hurt and that he might vomit. Mr. Scherer helped Mr. “A” to the floor in order to adjust his handcuffs.

[32]    Mr. Bechard waited outside the building to guide the paramedics to the detention area. When the paramedics arrived, Mr. Turner told them what he had attempted to administer to Mr. “A”. Ms. Rae testified that the paramedics did not seem concerned. The two paramedics observed Mr. “A” and they can be seen in the videotape talking to Mr. “A” and briefly shining a flashlight into his mouth. Mr. Bechard testified that the paramedics were asking Mr. “A” questions about what he had swallowed. They were also trying to convince him to go to the hospital. He initially refused to go, but then agreed. Mr. Turner was concerned that “time was a-wasting” and that Mr. “A” should be sent to the hospital as quickly as possible. Ms. Rae asked Ms. Harrison and Mr. Scherer to accompany Mr. “A” to the hospital in the ambulance.

[33]    On the way to the hospital, Ms. Harrison testified that Mr. “A” admitted that he had swallowed something that could have killed him. She also testified that the paramedic sitting in the back with her heard the comment. Mr. Scherer had no recollection of the ambulance ride. The paramedic in the ambulance was not called to testify.

[34]    At the hospital, Mr. “A” became lethargic and forgetful. He was seen by a doctor. The doctor advised Ms. Harrison that Mr. “A” denied swallowing anything and was refusing treatment. The doctor also advised Ms. Harrison that an X-ray could be ordered. Ms. Harrison called Ms. Rae and obtained authorization for an X-ray. The X-ray did not show the presence of any foreign object. Mr. “A” was transported back to the Ambassador Bridge and subsequently returned to the United States.

[35]    Jessica Farrell, a customs inspector, testified that while strip searching Ms. “B”, she asked her whether she had seen Mr. “A” put something in his mouth. Ms. “B” replied: “Yes, I think so.”

[36]    Joe McMahon was the Acting Director of the Ambassador Bridge at the time of the incident. The Director, David McRae, was on leave. Mr. McMahon is now the Acting Director General of Human Resources for the region. Mr. McMahon was called as a witness by Mr. Turner. Mr. McMahon requested that all customs inspectors present during the incident prepare reports.

[37]    Ms. Rae was preparing her report in the office on July 26, 2004, and she went to speak to Mr. Turner, who was also on shift that day. She told him that she had a “bad feeling” about the incident and that “it did not look good”. She reviewed the report that Mr. Turner had drafted and noted a few errors or discrepancies. He had initially stated in his report that he had approached both superintendents in the superintendent’s office. She testified that he was adamant that he had informed both superintendents about what he was going to do in the superintendent’s office. The discussion went back and forth. Mr. Turner was upset and told Ms. Rae that he thought she was trying to “cover her ass”. Mr. Turner testified that he believed that Mr. Bechard and Ms. Rae were trying to absolve themselves of their responsibility and to portray him as “the bad guy”. Ms. Rae told him that had she known that the syrup was intended for his dog, she might have asked him not to proceed. She testified that he said he would have done it anyway. Mr. Turner denies saying this to Ms. Rae. In cross-examination, she testified that she could not swear that those were his exact words. Mr. Turner testified that he said that given the same amount of knowledge and the same situation, he probably would have done the same thing. He testified that at the time he was not aware of all the mistakes that he had made and, at that time, he believed that what he had done was correct. He testified that he did not say that he would have administered the syrup even if she had told him not to do so. He testified that if he had been told not to administer the syrup he would not have done so.

[38]    Mr. McMahon prepared a chronological report of events relating to the incident (Exhibit G-10). He spoke to Ms. Rae on July 26, 2004, and she advised him that she neither authorized Mr. Turner to administer the syrup, nor did she tell him not to administer it. Mr. McMahon also spoke to Mr. Bechard on July 26, 2004, and the latter told him that he neither authorized Mr. Turner to proceed to administer the substance, nor did he attempt to stop him from proceeding. Mr. Bechard testified that this was Mr. McMahon’s “spin” and that this was not what he told him.

[39]    Mr. McMahon met with Ms. Rae on July 28, 2004, and advised her that there would be a “fall out” for her that could include the possibility of discipline. He met with Mr. Bechard on July 29, 2004, and told him that his actions during the incident lacked leadership and responsibility. Mr. Bechard told him that he thought that his role was limited to calling the EMS. Mr. McMahon told him that his lack of intervention was disappointing. At a meeting of management officials on July 30, 2004, it was determined that the acting assignments for both Ms. Rae and Mr. Bechard would be suspended, as of August 3, 2004, pending the results of the investigation (Exhibit G-10). Mr. McMahon’s involvement with this matter ended when the Director returned from his leave.

[40]    Mr. Bechard’s original report of the incident (Exhibit E-8) stated that Mr. Turner told him that he had something in his kit for his dog that would induce vomiting and that he felt it was necessary to administer it to Mr. “A” because what had been swallowed “needed to come out”. Mr. Bechard then wrote that he “accepted this fact” and continued toward the office to call the EMS. In his discussion with Mr. McMahon, he stated that he was referring to the fact that he acknowledged or received the statement from Mr. Turner and not that he agreed with it. He testified that Mr. McMahon asked him to reword the report to properly reflect what had happened. Mr. McMahon denied asking Mr. Bechard to change his report. The revised report (Exhibit E-9) stated that Mr. Bechard “received” the fact that Mr. Turner was going to administer the substance.

[41]    After the incident, Mr. Turner was assigned less sensitive duties and was relieved from his duties as a DDH on July 27, 2004. After a preliminary investigation, and prior to the investigation conducted by an Internal Affairs investigator, Mr. Turner’s designation as a peace officer under subsection 163.4 (1) of the Customs Act was suspended.

[42]    Darrin Boismier, the Regional Officer Powers Coordinator for the CBSA, prepared a report of the incident at the request of Mr. McMahon. After viewing the videotape and the Use of Force Reports prepared by the customs inspectors, he set out his conclusions on the use of force in a report dated July 30, 2004, as follows (Exhibit E-15):

. . .

In my opinion, the force used to control the first encounter with [Mr. “A”] was justified as it was reactive to the situation that was unfolding. The second encounter however, I see no reasonable reason why force was reapplied after the handcuffs were placed on [Mr. “A”] and he was placed under arrest. [Mr. “A”] was sitting on the bench and was not physically resisting the officers in anyway. As a Regional Coordinator and a former Use of Force trainer, I believe that the second encounter with [Mr. “A”] didn’t have to occur and was not necessary. The Inspectors involved (in particular Ken Turner) used excessive force in holding down [Mr. “A”] by his neck to administer to ipecac medication.

. . .

[43]    In cross-examination, Mr. Boismier testified that the majority of his report was based solely on his observation of the videotape.

[44]    Mr. Boismier identified the “Use of Force Policy and Procedures” (Exhibit E-14) and reviewed the incident management and intervention model used by the CBSA. The Policy’s guidelines suggest that there be a debrief session following a report of the use of force. Mr. Boismier testified that he was advised that there was to be no debrief session. The guidelines provide that a debrief session is mandatory only in certain circumstances, including when injuries occur to a customs inspector, or any other person, or when a complaint is filed.

[45]    Mr. Boismier testified that there was no formal training for customs inspectors on what to do when someone swallows a narcotic. He also reviewed Mr. Turner’s training record (Exhibit E-16) and testified that Mr. Turner had received officer powers training and personal protection training, including a refresher course in 2003.

[46]    Mr. Boismier was Mr. Turner’s direct supervisor in 1999 (Exhibit G-6). In cross-examination, he testified that under the detector dog program he thought that Mr. Turner was excellent and that he never had any problems with him. There was renewed faith in the detector dog program after Mr. Turner joined the program. Mr. Boismier testified that based on this previous experience, he was surprised to see the events unfolding as they did in the videotape.

[47]    Pete DiPonio, the Regional Director General for the CBSA, requested an investigation by the Internal Affairs Directorate of the CBSA. He testified that an Internal Affairs investigation was required when there was a possibility of serious misconduct or a criminal act, and this incident fell within both.

[48]    The Internal Affairs investigation was conducted by Jim Wardhaugh. Mr. Wardhaugh has been an investigator since 1989. Prior to conducting interviews with those present during the incident, Mr. Wardhaugh viewed the videotape (Exhibit E-1). He commenced interviews on August 16, 2004, and interviewed Mr. Turner on August 18, 2004. Mr. Wardhaugh did not talk to Mr. “A”. He testified in cross-examination that he would “rather let sleeping dogs lie” and did not want to “invite” a lawsuit against his employer. He agreed that it was usual practice to interview the victim or complainant. Mr. DiPonio testified that the Department was not obligated to contact Mr. “A” and that such contact would expose a lot of people to liability and this was of some concern to him.

[49]    Ms. Rae testified that after the incident she reviewed the CBSA’s manuals to learn how the incident should have been handled. She attached excerpts from the policy on care and control of persons in custody to her statement to Mr. Wardhaugh (Exhibit E-6). The policy states, in part, that:

. . .

95.     If an arrested or detained person becomes ill or is injured while in custody:

. . .

98.     Administer first aid, if you are qualified and it is required.

99.     Request immediate medical attention and arrange for an ambulance.

. . .

Note: Except under extreme emergency circumstances, CBSA personnel will not directly administer medication (i.e., via syringe/needle) regardless of their medical training (i.e., paramedic). The CBSA does not have the appropriate medical equipment available should a person have a negative reaction to medication administered.

. . .

[50]    Mr. McLaughlin was interviewed by Mr. Wardhaugh (Exhibits E-7 and E-12). Mr. McLaughlin told Mr. Wardhaugh that his impression of Mr. Bechard’s response to Mr. Turner’s statement that he had syrup of ipecac in his truck was that it was a “flat out no” because he said that he was not a doctor. He also told Mr. Wardhaugh that Mr. Scherer may have heard this statement. Mr. Scherer testified that he did not recall hearing this statement.

[51]    Mr. Wardhaugh did not provide an opportunity for Mr. Turner to comment on his findings or the observations of the other customs inspectors and supervisors. Mr. Wardhaugh also did not provide a copy of the videotape to Mr. Turner, or give him an opportunity to view it, because he was not certain of Mr. Turner’s rights to see the report or videotape. He preferred to leave that to an Access to Information andPrivacy Act request by Mr. Turner.

[52]    In cross-examination, Mr. Wardhaugh stated that it was his opinion that in administering the syrup of ipecac, Mr. Turner was attempting to get a drug bust and was not acting in good faith. This opinion was not included in the investigation report.

[53]    Mr. Wardhaugh’s investigation report was provided to Mr. DiPonio on September 7, 2004 (Exhibit E-7). The report concluded as follows:

. . .

CONCLUSION

The information gathered during this investigation determined that Customs Inspector and Detector Dog Handler Ken Turner, Detroit and Canada Tunnel CBSA Office assaulted [Mr. “A”], of Michigan, USA while he was in CBSA custody at the Ambassador Bridge.

The information gathered also demonstrates that Customs Inspectors Douglas Bedard and Yvonne Harrison of the Ambassador Bridge CBSA Office also participated in the aforementioned assault upon [Mr. “A”] although the participation of these individuals is mitigated in that they acted in good faith, believing that Turner had specialized training which he did not possess.

. . .

[Emphasis in original]

[54]    Mr. DiPonio contacted Mr. Turner by telephone on September 23, 2004. He testified that he made the contact with Mr. Turner after receiving the investigation report to see if he had anything to add. Mr. DiPonio took notes of his conversation at the time (Exhibit E-17). He wrote that Mr. Turner said that if he had done something inappropriate, he was sorry. He also told Mr. DiPonio that he “obviously regrets his actions based on the consequences”. He also told Mr. DiPonio that he had the authorization to proceed with administering the syrup of ipecac. As well, he told Mr. DiPonio that he was trying to save Mr. “A”’s life and that the situation was akin to tackling someone to prevent them from jumping off a building.

[55]    Mr. DiPonio concluded that Mr. Turner had used his own judgement during the incident and that the circumstances that led to the assault were “largely of his own making”. He also concluded that Mr. Turner had not changed his position much from that contained in his statement to Mr. Wardhaugh. According to Mr. DiPonio, Mr. Turner thought that what he had done was correct, in spite of the time to reflect and consider the views of others.

[56]    Mr. Turner testified that he was neither permitted to see the videotape, nor the completed investigation report after requesting both from the CBSA by letter dated August 5, 2004 (Exhibit G-19). Mr. DiPonio testified in cross-examination that he did not provide a copy of the investigation report to Mr. Turner. Mr. DiPonio stated that he did not provide a copy of the videotape as requested by Mr. Turner and his bargaining agent on the advice of his staff relations advisor.

[57]    On October 4, 2004, Mr. DiPonio had a meeting with Mr. Turner, at the request of Mr. Turner’s bargaining agent representative, Marie-Claire Coupal. Ms. Coupal was in attendance along with a human resources advisor from the CBSA. Minutes were prepared by the human resources advisor (Exhibit E-17) and Mr. DiPonio testified that they reflected the content of the meeting. Mr. Turner said that he was very remorseful. He also said that he was sorry and knew that what he did was wrong and he would never do it again. He also stated that he wanted to resolve this matter and change his behaviour. He also stated that he knew he could no longer be a DDH.

[58]    Mr. DiPonio testified that after the meeting, he had little confidence that Mr. Turner would change his behaviour. His behaviour showed disrespect for authority. He testified that he found Mr. Turner’s explanations for his behaviour not consistent with good judgement. Mr. DiPonio believed that Mr. Turner’s expressions of remorse were driven by the fact that he was told his behaviour was inappropriate but that Mr. Turner still believed that he had acted in good faith.

[59]    Mr. DiPonio made the decision to terminate Mr. Turner’s employment for cause. In a letter to Mr. Turner dated October 6, 2004, Mr. DiPonio stated the following (Exhibit E-18):

. . .

The Internal Affairs Division conducted an investigation into the incident and concluded that you assaulted [Mr. “A”] while he was in the custody of the Canada Border Services Agency at the Ambassador Bridge. In addition, you forcibly administered “syrup of ipecac” to [Mr. “A”] without his consent and without the authority.

You have demonstrated that you lack the trustworthiness, judgement, sense of responsibility and rehabilitative potential that is necessary to function as an employee of the Canada Border Services Agency.

. . .

[60]    Mr. DiPonio testified that it was incumbent on Mr. Turner to use the tools provided to him reasonably and that he had used the syrup of ipecac in a “starkly, wildly inappropriate way”. Mr. DiPonio also testified that Mr. Turner took little responsibility, if any, for his actions. Mr. DiPonio testified that Mr. Turner’s judgement was “simply inappropriate”, as there had been no medical emergency. Mr. Turner did not know the medical history of Mr. “A” and had no ability to determine the outcome of his actions on Mr. “A”. If there was a crisis, it was created by Mr. Turner. In cross-examination, Mr. DiPonio asked if he thought that Mr. Turner had acted in bad faith. He responded that Mr. Turner acted inappropriately and unreasonably. He also stated that he did not know how Mr. Turner came to the conclusion that he was acting in the best interests of Mr. “A”, but he did not think that he was acting in bad faith. Later, in cross-examination, he stated that he believed that Mr. Turner’s reckless disregard for the outcome of his actions was a form of malice.

[61]    In cross-examination, Mr. DiPonio testified that shortly after the incident he asked Gerry Dundas (Assistant to the District Director) to contact the police to ascertain whether the Agency was required to provide evidence of any alleged assault to them. The advice received by Mr. DiPonio was that the Agency was under no obligation to pursue this matter with the police. Mr. DiPonio believed that an assault took place and that it “probably constituted criminal assault”.

[62]    Mr. DiPonio testified in cross-examination that Mr. Turner had no clear authority to proceed with the administration of the syrup of ipecac and he solicited the cooperation of others by providing as little evidence as possible. Mr. DiPonio testified that if he had thought that the superintendents had authorized the administration of the syrup of ipecac, he would have likely come to a different decision. In that situation, the supervisors would have assumed much more of the responsibility for the actions that took place. Mr. DiPonio testified that the supervisors ought to have intervened and asked a lot of questions; this “very regrettably” did not happen. He also testified that everyone in the detention room had every reason to place their trust in Mr. Turner while he showed the syringe to them.

[63]    Ms. Rae was disciplined as a result of the events of July 23, 2004. She received a three-shift suspension. The “Disciplinary Action Report” (Exhibit G-2) states:

. . .

You did not attempt to take control of the situation, and should have known that the actions of the employees involved were not consistent with normal care and operating procedures. Your failure to intervene in the actions of the employee’s [sic] under your supervision unnecessarily endangered the health of [Mr. “A"].

I have given serious consideration to your past service record, your willingness to cooperate in this investigation and your acknowledgement of wrongdoing.

. . .

As the responsible management representative, you must exemplify the expected standards of conduct. Your negligence for the proper performance of your duties cannot be condoned or tolerated. I am therefore imposing discipline in the form of a 3-shift suspension. . . .

. . .

[64]    Mr. DiPonio testified that he concluded that Mr. Bechard had not authorized the administration of the syrup and that he had not told Mr. Turner not to administer it either. Mr. Bechard received a counselling session letter (Exhibit G-3):

. . .

Although you made an attempt to control the situation, your direction to Mr. Turner lacked the necessary force needed to terminate his actions. You should have taken more direct control of the situation, as it was evident you knew that the actions of the employees involved were not consistent with normal care and operating procedures, under the circumstances. As the responsible management representative, you must exemplify the expected standards of conduct.

I am confident you now understand the consequences of your actions.

. . .

[65]    Ms. Harrison received a five-shift suspension for her involvement in the incident. Mr. Bedard received a counselling letter and was counselled that his actions were inappropriate. None of the other customs inspectors involved received any discipline. Mr. DiPonio testified that the quantum of discipline imposed on Ms. Harrison and Ms. Rae was based on the fact that Mr. Turner was the protagonist and that they were acting on their belief that he had specialized training.

[66]    At the hearing, Mr. Turner apologized for his actions. Mr. Turner was asked by his representative what he would say to Mr. “A” if he was in the room. Mr. Turner said that he would sincerely apologize and express his regret for any injuries that he may have caused. He would tell Mr. “A” that he thought he was acting in his best interests, but now realizes that he was wrong. He stated that he was extremely sorry for what he did. Mr. Turner testified that at the time he was very concerned that Mr. “A” could die and he was not thinking of the consequences of his actions. He admitted that his course of action was not correct because he did not have Mr. “A”’s consent and did not know his medical history. He stated that he was now fully aware of the potential outcomes of his actions, including that the administration of the syrup might have killed Mr. “A”, and also the potential of exposing both his employer and himself to liability. He stated that this was a “very, very bad” decision that he had made and it constituted a very serious mistake. He testified that his understanding of what he had done and the legal implications increased tenfold after the meeting with Mr. DiPonio on September 23, 2004.

[67]    Ms. Rae testified that Mr. Turner was a good employee and passionate about his work. Mr. Bechard testified that Mr. Turner did a good job as a DDH. In cross-examination, Mr. Turner agreed that in the months prior to the incident of July 23, 2004, he had had some disputes with his supervisors over the performance of his work.

Summary of the arguments

For the employer

[68]    Mr. Hould, counsel for the employer, submitted that this was a case involving termination for most egregious misconduct that could have led to serious consequences, including bodily harm or death. He argued that an assault could be defined as an intentional physical contact without consent. For a peace officer, this includes excessive or unjustified use of force in the circumstances. It is clear that Mr. Turner assaulted Mr. “A” while he was in custody. He recklessly applied excessive force without consent, resulting in possible serious harm to Mr. “A”.

[69]    Mr. Hould noted that Ms. Rae testified that things happened very quickly. She testified that Mr. Turner knew what he was doing and she saw that he was in control of the situation. She heard about the syrup of ipecac for the first time when he was about to administer it. She testified that he was speaking to everyone in the room and not specifically to her. It was only after the incident that she had a discussion with Mr. Turner in an adjacent room and learned that the syrup of ipecac was intended for use on his dog. This evidence was not contradicted. She confronted him a few days later and told him that she would not have allowed him to administer the substance if she had known it was intended for his dog. He told her he would have done it anyway.

[70]    Mr. Hould submitted that Ms. Rae and the other customs inspectors in attendance trusted Mr. Turner and followed his lead. They trusted his experience and knowledge. Ms. Rae acknowledged that she should have intervened, and received a three-shift suspension.

[71]    Mr. Hould noted that Mr. Bechard testified that he told Mr. Turner: “No, we are not doctors.” Mr. McLaughlin corroborated this testimony. Mr. Bechard denied talking to Mr. Turner in the superintendent’s office and denied giving the okay to administer the substance. In his testimony, Mr. Turner stated that Mr. Bechard said “go ahead”. This was the first time that Mr. Turner made this allegation. In cross-examination, he admitted that it was possible that Mr. Bechard did not say this.

[72]    Mr. Hould noted that Mr. DiPonio testified that he could not trust Mr. Turner and that Mr. Turner had no sincere sense of responsibility for his actions. If there was a crisis, it was entirely of Mr. Turner’s making, Mr. DiPonio concluded. He also concluded that Mr. Turner acted recklessly and without regard for the well-being of Mr. “A”.

[73]    Mr. Hould asked me to take into account Ms. Harrison’s relationship with Mr. Turner as a mitigating factor in assessing the credibility of her testimony, which Mr. Hould described as self-serving and contradictory.

[74]    Mr. Hould submitted that Mr. Turner cannot pretend that he had permission from his supervisors. He never mentioned to either Ms. Rae or Mr. Bechard that he was going to proceed the way he did. His actions in leaving Mr. “A” lying on his back and not attending to him show that he did not have concerns for Mr. “A”. His plea to be forgiven by Mr. “A” was fraught with insincerity. His plea at the hearing that Mr. “A” understand that he was acting in his best interests is another example of Mr. Turner’s tortured logic. Mr. Hould noted that although Mr. Turner testified that he trusted his fellow officers to care for Mr. “A” (a man he thought was going to die), he did not trust them to look for contraband after the struggle.

[75]    Mr. Hould submitted that the videotape is very compelling evidence. There was no medical emergency, and this is confirmed by the demeanour of the paramedics when they arrived. There was no sign of distress by Mr. “A” after the first struggle. Mr. Turner’s body language shows that he was in control throughout: calm, cool and collected.

[76]    Mr. Hould submitted that Mr. Turner’s actions demonstrate that he lacks trustworthiness, judgement, a sense of responsibility and rehabilitative potential. Customs inspectors are entrusted with powers and the responsibility to treat those in their custody with respect and care. Mr. Turner clearly abused those powers and this is an irreparable breach of the bond of trust. There is no question as to Mr. Turner’s lack of judgment in the performance of his duties. Mr. “A” could have died. Mr. Turner also refused to accept any responsibility for his misconduct. He tried to pass on the responsibility to his supervisors. He claimed that he acted in good faith and blamed the incident on the limited training that he had. Mr. Turner’s rehabilitative potential is non-existent. Any hope that the employer can trust him cannot be restored.

[77]    Mr. Hould submitted that there is a high threshold of conduct expected of law enforcement officers because of the nature of their duties: Re Province of British Columbia v. British Columbia Government Employees Union (Correctional Services Component) (1987), 27 L.A.C. (3d) 311. The vulnerability of those in custody raises a significant duty of trust on the part of peace officers such as corrections officers and customs inspectors. A breach of that duty of trust is evidence that the officer does not possess the attributes necessary to perform his duties.

[78]    Mr. Hould referred me to Flewwelling v. Canada, [1985] F.C.J. No. 1129 ( C.A.), a case involving an international surveillance officer (peace officer) found to be in possession of drugs. The Federal Court of Appeal concluded that:

. . .

. . . there are forms of misconduct which, whether they are prohibited by regulations or by the Criminal Code or by any other statute, are of such a character that they are readily recognizable by any reasonable person as incompatible and inconsistent with the holding by one involved in such conduct of a public office and in particular of an office the duties of which are to enforce the law. As Chief Justice Dickson recently had occasion to say for the Supreme Court in Fraser v. Public Service Staff Relations Board, unreported, decided on December 10, 1985:

The federal public service in Canada is part of the executive branch of government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third.

. . .

[79]    Mr. Hould noted that the Federal Court of Appeal concluded that the “common crimes” of homicide, theft and perjury were obvious examples of lack of integrity. Mr. Hould submitted that assault should also be included in this list.

[80]    Mr. Hould also referred me to Simoneau v. Treasury Board (Solicitor General of Canada - Correctional Service), 2003 PSSRB 57. In that case, a corrections officer was terminated after being found to be in possession of drugs. The adjudicator concluded that the reputation of the Correctional Service was tarnished by the grievor’s actions and that this contributed to the breach of trust between the grievor and the employer.

[81]    Mr. Hould also referred me to Courchesne v. Treasury Board (Solicitor General), PSSRB File No. 166-2-12299 (1982) (QL). In that decision, the adjudicator concluded that there were no extenuating circumstances. Extenuating or mitigating circumstances must be real and substantial and outweigh the gravity of the offence. Mr. Hould also referred me to a quote from Kikilidis v. Treasury Board (Ministry of Solicitor General), PSSRB File Nos. 166-2-3180 to 3182 (1977), cited in Courchesne:

. . .

. . . An Adjudicator must not only weigh the interests of the Employer and those of the Employee, but the interests of other employees, inmates and the public at large must also be taken into account. . . .

. . .

[82]    Mr. Hould submitted that no mitigating factors come close to outweighing the seriousness of the offence. The community would be outraged to see Mr. Turner reinstated. The public is entitled to the integrity of its public servants. There are serious doubts about Mr. Turner’s motives. Any recognition by Mr. Turner of the error of his ways comes too little too late in the face of recklessness that could have resulted in serious injury or even death. This was not a momentary lapse of reason by Mr. Turner. Mr. Turner is still trying to defend his behaviour on the basis of acting in Mr. “A”’s best interests. This shows a permanent lapse of reason and annihilates any hope of restoring trust between Mr. Turner and his employer. Mr. Hould submitted that all grievances should be dismissed.

For the grievor

[83]    Mr. Fisher submitted that the bargaining agent was not condoning Mr. Turner’s behaviour. His actions reflect an aberration. The discipline imposed is too severe. Mr. Fisher submitted that the employer did not meet its burden of proof in proving the grounds for discipline as set out in its letter of termination. Mr. Turner acted in good faith and the employer did not establish that he had any intent to assault Mr. “A”. Mr. Fisher argued that there was a legitimate purpose underlying the improper act in this case that was similar to the situation in Re Royal Ottawa Health Care Group v. Canadian Union of Public Employees, Local 942 (2005), 139 L.A.C. (4th) 397.

[84]    Mr. Fisher argued that Mr. Turner had the consent of his supervisors to administer the syrup. The supervisors bore some responsibility for the events and that this was a mitigating factor that should have been weighed in the discipline imposed on Mr. Turner. Mr. Turner held up the syringe and clearly stated his intentions. Ms. Rae did not intervene, thereby giving her tacit, implied consent to the administration of the ipecac. Mr. Fisher submitted that Mr. DiPonio had stated that his decision to terminate Mr. Turner’s employment would have been affected if he had been advised that Mr. Turner was acting under his supervisor’s authority. He referred me to Labrie v. Treasury Board (Health Canada), PSSRB File No. 166-2-26301 (1995) (QL).

[85]    Mr. Fisher argued that there were discrepancies in the discipline imposed on others present during the incident, and argued that the discipline imposed on Mr. Turner was not proportionate to the discipline imposed on others. The discipline imposed needs to be weighed in relation to the discipline imposed on other participants. He referred me to Dosanjh v. Treasury Board (Solicitor General Canada – Correctional Service), PSSRB File No. 166-2-27262 (1997) (QL); Gourlie v. Treasury Board (Revenue Canada), PSSRB File No. 166-2-18705 (1989) (QL); Gagné v. Treasury Board (Solicitor General Canada – Correctional Service), PSSRB File Nos. 166-2-16697 and 16817 (1988) (QL); and Nolan v. Treasury Board (Revenue Canada - Taxation), PSSRB File No. 166-2-17111 (1987) (QL).

[86]    Mr. Fisher questioned whether the roles, regulations and directives were clear to all the participants in the incident, and whether the participants were adequately trained to deal with the situation that arose. He referred me to Laforest v. Treasury Board (Solicitor General Canada – Correctional Service), PSSRB File No. 166-2-16912 (1988) (QL), and Beaulieu v. Treasury Board (Solicitor General), PSSRB File No. 166-2-12108 (1984) (QL).

[87]    Mr. Fisher submitted that I should draw an adverse inference from the failure of the employer to call Mr. “A” as a witness, as well as its failure to call a number of the customs inspectors who were present during the incident.

[88]    Mr. Fisher submitted that there were substantial grounds that led the customs inspectors to believe that Mr. “A” may have swallowed drugs. Mr. Fisher submitted that Ms. Harrison’s testimony was consistent and that she was a credible witness. The employer did not identify any inconsistencies in her testimony and did not challenge her testimony, thereby suggesting that it accepts it. No contrary evidence to Ms. Harrison’s evidence on the statement made by Mr. “A” in the ambulance was tendered. Ms. Rae testified that Mr. Turner said that he was not going to let Mr. “A” die and that she felt he had a genuine cause for concern for Mr. “A”. Ms. Rae also spoke to the qualities of Mr. Turner as an employee, that he was passionate about his job. Mr. Fisher submitted that the customs inspectors trusted Mr. Turner’s judgment, and the reason for this trust was that he was an excellent DDH respected by his peers. There was no evidence that Mr. Turner was a problem employee.

[89]    Mr. Fisher argued that there was no reference to an assault in the shift report (Exhibit G-4). The police were not called and no one perceived the events as an assault at the time. Ms. Rae stated to Messrs. Bechard and Turner the following day that: “We better be on the same page.” Mr. Fisher submitted that both Ms. Rae and Mr. Bechard were attempting to protect themselves.

[90]    Mr. Fisher submitted that the testimony of Mr. Bechard was not credible. He referred me to the decision of Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). Mr. Fisher reviewed a number of inconsistencies in Mr. Bechard’s testimony. He submitted that Mr. Bechard never said: “No, we’re not doctors.” This would have constituted a direct order, and there is no mention of insubordination in any of the reports. Mr. Bechard’s reports changed on a number of occasions. Mr. Bechard realized after the events that he risked discipline and tried to protect himself. The evidence of Mr. McLaughlin that supported Mr. Bechard’s claim was simply not reliable. Mr. McLaughlin was a friend of Mr. Bechard’s and did not want him to get into trouble. He was the only customs inspector of many in the area to have claimed to have heard Mr. Bechard’s alleged comment. He also admitted that he spoke to Mr. Bechard prior to filling out his report, contrary to the instructions of management. Mr. Fisher stated that it was entirely possible that Mr. Bechard gave his approval for the administration of the ipecac. In his initial report (Exhibit E-8), he wrote that he “accepted this fact”.

[91]    Mr. Fisher challenged the validity of Mr. Wardhaugh’s report. He submitted that the report was entirely subjective, contained factual inaccuracies, and was self-serving and biased. Mr. Wardhaugh had already drawn conclusions prior to conducting his interviews. He did not put certain comments made by other customs inspectors, including his supervisors, to Mr. Turner for his comment. Mr. Fisher outlined a number of inaccuracies and omissions in the investigation report. Mr. Fisher also submitted that Mr. Wardhaugh’s theory that Mr. Turner wanted a “drug bust” was not supported by the evidence or by any of the customs inspectors involved. Mr. DiPonio testified that he believed that Mr. Turner acted in good faith. Mr. Wardhaugh's comment during his cross-examination that he did not contact Mr. “A” because he wanted to “let sleeping dogs lie” shows that he was more interested in protecting the employer from liability than in conducting a fair investigation process. He referred me to Re Canada Customs and Revenue Agency v. Oliver (2003), 118 L.A.C. (4th) 414, as well as to Re Treasury Board (Department of Public Works) v. Lavigne (1988), 1 L.A.C. (4th) 1.

[92]    Mr. Fisher argued that Mr. Boismier’s report on the use of force was based solely on viewing the videotape and that he did not have the relevant facts about the incident.

[93]    Mr. Fisher also commented that the failure of the employer to allow Mr. Turner to see the videotape prior to the termination of his employment, and prior to this adjudication, was a denial of procedural fairness. Mr. Fisher submitted that Mr. DiPonio drew conclusions about Mr. Turner’s actions without discussing those conclusions with Mr. Turner.

[94]    Mr. Fisher noted that the “Customs Enforcement Manual” (attachment to Exhibit E-6) states that medical interventions should not be made “except under extremely serious circumstances”. Mr. Turner believed this was an extremely serious circumstance based on his knowledge of the effects of drugs when swallowed.

[95]    Mr. Fisher also submitted that the discipline imposed was not warranted given that the actions of Mr. Turner were done in good faith and were not premeditated. He referred me to Re British Columbia Ferry Corp. v. B.C. Ferry and Marine Workers’ Union (1999), 81 L.A.C. (4th) 112.

[96]    Mr. Fisher submitted that the behaviour of Mr. Turner would not recur. This has been a shared learning experience. There are numerous mitigating factors, including the fact that Mr. Turner has apologized for his role in the events. Mr. Fisher referred me to Re SRI Homes Inc. v. International Workers of America - Canada, Local 1-184, (1996), 58 L.A.C. (4th) 385; Re Cadillac Fairview Corporation v. Communications, Energy and Paperworkers Union (2004), 130 L.A.C. (4th) 54; and Re The Crown in right of Ontario (Ministry of Community Safety and Correctional Services) v. Ontario Public Service Employees Union(Adam) (2005), 137 L.A.C. (4th) 111. Mr. Fisher also submitted that Mr. Turner has rehabilitative potential. He is appreciative of the severity of his actions and is not trying to talk himself out of responsibility. Mr. Fisher referred me to Re The Queen in Right of Manitoba v. Manitoba Government Employees and General Union (2002), 110 L.A.C. (4th) 40, and Re Howe Sound Forest Products Ltd. v. International Woodworkers of America, Local 1-71 (1996), 57 L.A.C. (4th) 100.

[97]    Mr. Fisher submitted that the three grievances submitted by Mr. Turner are one and the same. The grievance with regards to sick leave would be “cured” if the termination grievance was allowed.

[98]    Mr. Fisher argued that the cases relied on by the employer related to drug smuggling were not relevant here, where Mr. Turner was attempting to save Mr. “A”’s life. Also, in Courchesne, directions were given to the grievor whereas in this case all parties were at a loss as to the appropriate response.

Additional submissions

[99]    After the completion of the hearing, the decision in Rose v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 17, was issued. The decision related to an assault of an inmate by a correctional officer. I requested that the parties provide me their submissions on this case. Submissions in writing were received on March 13, 2006, and are reproduced below.

Submission of the employer on Rose

. . .

It is the employer’s position that the adjudicator’s conclusions in Rose cannot be applied to the facts of this case. Therefore, termination should be upheld.

Although assault or excessive use of force by peace officers is regarded as serous misconduct and should not be condoned, the egregiousness of Mr. Turner’s assault far surpasses that in the Rose case. In that case, the adjudicator found that the kicking in the buttocks constituting the assault could more easily be described as humiliating and degrading since the inmate was a big man who did not lose his balance from the kick. She found that it was not a case where the assailant “appl[ied] abusive force from a dominant position standing above the inmate” . . . In Mr. Turner’s case, it is clear that he abused his dominant position while priming [Mr. “A”], a person obviously smaller than him, against the wall and then down on the bench during his attempts to administer the ipecac. Furthermore, there is no question that the potential consequences of forcibly administering a substance to induce vomiting are more serious than kicking a big man in the buttocks. Contrary to the situation in Rose, there is evidence in this case that [Mr. “A”] probably suffered from the administration of the ipecac, as confirmed by Mr. Scherer who heard him spitting and complaining about feeling nauseous.

In Rose, the adjudicator also gave consideration to the rehabilitative potential of the grievor and concluded that he had demonstrated true remorse and that his actions were uncharacteristic, as per the mitigating factors cited in Re Government of Province of British Columbia.. . . As stated in the employer’s submissions at the hearing, Mr. Turner lacks any rehabilitative potential since his actions did not reveal a momentary lapse of reason where, once faced with his misconduct after the fact, the grievor cannot explain the reason for it . . . Mr. Turner continued to show no real remorse, justifying that his actions were “in the best interest of [Mr. “A”]” . Unlike in Rose, there are no mitigating factors in this case that outweigh the egregiousness of the misconduct.

Based on the above . . ., it is respectfully submitted that the conclusions in Rose do not apply to the facts of this case. Mr. Turner’s termination should therefore be upheld.

. . .

Submission of the grievor on Rose

. . .

It is the Union's submission that the Rose decision is entirely on point and has direct application for the consideration of Mr. Turner's grievance. Much like our case, the Employer in Rose argued that the incident was very serious and worthy of discharge. The Employer in Rose also argued, as noted on paragraph 54 that the arbitrator should not intervene in disciplinary matters unless the decision falls in the range of unreasonableness or unless the employer did not consider relevant elements.

The Rose decision takes into account mitigating and circumstantial considerations which fold into Arbitrator Matteau's decision to reinstate. The Union wishes to rely on the Rose decision as it seeks similar consideration and insofar as the application of relevant mitigating factors of Mr. Turner.

As in Rose, the Employer acknowledged that Mr. Turner was a good and competent officer. It would appear from the reading in Rose that Mr. Rose's actions were directly linked to the events on the night of October 18, 2004. In our case, Mr. Turner was of the understanding that [Mr. “A”] had swallowed narcotics and acted urgently in his attempt to save his life.

In Rose, as noted on paragraph 38, the grievor "added that it was never his intention to hurt the inmate and that, as far as he knows, the inmate was not hurt." The Union submits that Ken Turner never intended to hurt [Mr. “A”] and the Employer advanced no medical evidence to suggest any medical effects of Mr. Turner's actions. At no time did Mr. Turner seek to humiliate [Mr. “A”] as an expression of the authority he held at Customs. On this point, Mr. Turner's supervisor Sandra Rae testified that "Ken was trying to save his life". In our case, Mr. Turner was honest and acted in a straightforward manner with management's investigation. Mr. Turner also testified that such an event would never take place again.

Similar to the Union's argument in Rose, Mr. Turner was remorseful (he provided his apology on two separate occasions to Mr. Diponio), the investigation was somewhat biased towards the grievor and Mr. Turner acted in a way that was entirely inconsistent with his approach at work.

Arbitrator Matteau clearly recognizes the authority to assess and examine the grounds of discipline for the purpose of considering both mitigating and aggravating factors. As noted on paragraph 102, the circumstances have to be examined and aggravating and mitigating factors have to be considered. Paragraph 113 of the Rose decision highlights the importance of the grievor's respect within the workplace. Paragraph 116 weighs into consideration a number of considerations that should also be applied in Mr. Turner's case including the fact that the misconduct was not premeditated, the grievor did not intend to inflict harm, the exemplary service of the grievor and the responsibility for his actions.

Given the above considerations, the Union relies on the reasons as set out in Rose as part of its submission that the grievance be allowed.

. . .

Reasons

[100]    Mr. Turner’s actions on July 23, 2004, were clearly inappropriate and demonstrate a significant lapse in judgment on his part. Administering a substance without consent is a serious assault on the physical integrity of an individual. This is compounded by the fact that the substance administered was only intended for use on Mr. Turner’s dog. There was little evidence about the use of syrup of ipecac on humans, although Mr. Turner testified that he was told it could be used on children who had swallowed poison. However, Mr. Turner had never been told that this substance could be used on adults suspected of swallowing drugs.

[101]    Mr. Fisher suggested that the employer has not demonstrated that Mr. Turner had the intention of harming Mr. “A” and has, therefore, not met its burden of proof in proving that discipline was warranted. Mr. Fisher argued that Mr. Turner believed that he was acting in good faith, as did the customs inspectors and supervisors who were present. Mr. Fisher also relied on the recent Re Royal Ottawa Health Care Group case. This was a situation where excessive force was used to restrain an aggressive patient, where there was a “legitimate purpose underlying an improper act”. This speaks to the intention of the grievor as well. However, in this case, there was no sound foundation for Mr. Turner’s actions. In other words, there was not, in my view, a legitimate purpose to this act. However, I view Mr. Turner’s intention as a possible mitigating factor (mitigating and aggravating factors are discussed below).

[102]    Mr. Turner also argued that Mr. Wardhaugh’s investigation report was biased and flawed in a number of ways. This hearing is a hearing de novo and any failures of the investigation report are cured by the hearing before me (see Tipple v. Canada (Treasury Board), [1985] 1 F.C.J. No. 818 (C.A.)). Mr. Wardhaugh’s opinions on the evidence that he gave in his testimony constitute opinion evidence and is not relevant to my determination on the merits. To that extent, the opinions of Mr. Wardhaugh contained in his report and in his testimony are irrelevant and have not been considered in this decision. Similarly, the report of Mr. Boismier on the use of force carries no weight. Its only relevance is that this report was relied on, in part, by the employer in reaching its decision. The opinion of Mr. Boismier contained in the report and in his testimony is not relevant in a de novo hearing.

[103]    The employer asked me to discount Ms. Harrison’s evidence on the basis of her relationship with Mr. Turner. Her evidence is largely corroborated by others who were present during the incident. The evidence she gave about Mr. “A”’s statement in the ambulance was not relevant to this grievance. The employer did not dispute that the customs inspectors, including Ms. Harrison, had reasonable cause to suspect that Mr. “A” had put something in his mouth. The customs inspectors’ actions in attempting to prevent Mr. “A” from swallowing were regarded as justified in the circumstances.

[104]    The failure of the CBSA to share the investigation report and videotape prior to the termination of employment and its reliance on the Access to Informationand Privacy Act requirements is unfortunate. The decision of the Federal Court in the judicial review (2004 FC 1462) of the Re Canada Customs and Revenue Agency v. Oliver decision had not been issued at the time of Mr. Turner’s termination of employment. However, the court makes some statements that the employer should consider closely in the future:

. . .

. . . The proposition is very simple: in an adjudication, documents pertaining to a grievor that are in the possession of the emnployer, which the employer wishes to use in a disciplinary action against an employee, must be subject to advance production.

. . .

[105]    I have concluded that there was misconduct on the part of Mr. Turner that warrants some form of discipline. The analysis now turns to whether, in all the circumstances, termination of employment was the appropriate response to the misconduct. I must, therefore, look at whether there are any mitigating or aggravating factors.

Aggravating and mitigating factors

[106]    A number of decisions relating to assault have set out the following factors that adjudicators should consider (see Re Dominion Glass Co. v. United Glass & Ceramic Workers, Local 203 (1975), 11 L.A.C. (2d) 84, Re Natrel Inc. v. C.A.W.-Canada, Local 462 (2005), 143 L.A.C. (4th) 233, and ReSRI HomesInc.):

• nature and seriousness of the attack;
• who was attacked;
• whether the assault was a momentary aberration or premeditated;
• whether the actions of the grievor were made in good faith;
• presence or absence of provocation;
• apology and/or expression of remorse and acceptance of responsibility for actions;
• condonation of supervisor(s);
• proportionality of discipline imposed;
• likelihood of a recurrence of this behaviour/rehabilitative potential;
• length of service and employment record.

[107]    In Rose, the adjudicator took into account a number of aggravating and mitigating factors, including the nature of the assault, the intention of the grievor, whether there was an application of abusive force, and whether the grievor apologized or showed remorse. In that case, the adjudicator concluded that a one-year suspension was warranted. Each case, of course, must be decided on its own facts.

Nature of assault and its seriousness

[108]    This was an assault of a different order than the typical assault cases that have been before adjudicators in the past. The assaults in the decisions cited by both parties involve physical assaults, whereas in this case the assault involved the attempt to administer a substance internally without consent. I regard this as a serious interference in Mr. “A”’s physical integrity.

[109]    There was no evidence presented on the effect of the assault on Mr. “A”. He was taken to the hospital and released. Although counsel for the employer argued that the possible consequences of Mr. Turner’s actions included serious injury or death, no evidence was presented on the possible consequences or the actual consequences. I am, therefore, not able to consider the possible consequences without the proper evidentiary foundation.

[110]    It was suggested by counsel for the employer that Mr. Turner’s actions were incompatible with his duties and responsibilities as a peace officer. In Flewwelling and in Simoneau, both grievors had been found guilty of criminal offences, which is not the case here.

Who was assaulted?

[111]    Mr. “A” was in custody and was in a vulnerable position. Mr. Turner and the other customs inspectors were in a position of authority over Mr. “A”. As set out in Re Province of British Columbia, those individuals in custody are vulnerable to the integrity and proper conduct of those who detain them, and this very fact of vulnerability results in a significant duty of trust on the part of peace officers.

Was the assault a momentary aberration or premeditated?

[112]    The assault on Mr. “A” was not a momentary aberration but was a planned and deliberate action by Mr. Turner. He made a conscious decision to administer the syrup, went to his truck to obtain the syrup, calmly put the syrup into the syringe and then explained to all present what he was about to do.

Were the actions of the grievor made in good faith?

[113]    Mr. Turner testified that he was attempting to save Mr. “A”’s life. There was testimony from a number of witnesses that Mr. Turner did say to Mr. “A”: “I’m not going to let you die”, or words to that effect. All the witnesses who were present testified that they did not question Mr. Turner’s good faith. The fact that Mr. Turner is observed on the videotape as not showing any particular concern for Mr. “A” after attempting to administer the syrup is of some concern. However, there were other customs inspectors watching Mr. “A” at this time. I find that Mr. Turner’s actions in looking for contraband on the floor and behind the benches was in keeping with normal practice. In addition, Mr. Turner appeared to be still concerned about Mr. “A”’s health when he questioned why the EMS was taking so long to get Mr. “A” to the hospital.

[114]    Counsel for the employer argued that the actions of the EMS on the videotape demonstrate that there was no real medical emergency. However, the paramedics were not called as witnesses, and it is difficult to come to any conclusion on Mr. “A”’s medical condition based on viewing the videotape.

[115]    At the time of the incident, I find that Mr. Turner believed he was acting in Mr. “A”’s best interests. This is supported by the evidence of all those present during the incident. I find that Mr. Turner’s intentions, however misguided, are a mitigating factor.

Presence or absence of provocation

[116]    Mr. “A” did not provoke the assault. The absence of any provocation on the part of Mr. “A” is, therefore, an aggravating factor.

Was there an apology, expression of remorse or acceptance of responsibility?

[117]    Mr. Turner did not appear to recognize the severity of the situation almost up to the time of his termination of employment. The day after the assault, he told his supervisors that he would do it again if similar circumstances arose. In his telephone conversation with Mr. DiPonio on September 24, 2004, he said that if he had done something inappropriate he was sorry. It was only at the meeting on October 4, 2004, with Mr. DiPonio, in the presence of his bargaining agent representative, that Mr. Turner expressed remorse. At the hearing, Mr. Turner apologized for his actions. He also stated that he hoped that Mr. “A” understood that he was trying to save his life. This apology is consistent with Mr. Turner’s belief that he was acting in good faith when administering the syrup.

[118]    Mr. Turner has recognized that he has lost the trust of his employer in terms of his continued ability to be a DDH. This is what he said at the meeting just prior to the termination of his employment. I note that as corrective action in his grievances Mr. Turner requests reinstatement to his position as DDH, which is at odds with his statement to Mr. DiPonio. However, in the absence of any evidence on this point, I rely on the evidence of his earlier statement to Mr. DiPonio. This represents some recognition on his part that his actions were not appropriate and that the employer had cause to discipline him.

[119]    On balance, I find that Mr. Turner has expressed remorse and has accepted responsibility for his actions.

Role of supervisors

[120]    The issues with regards to the role of the supervisors are as follows:

• Did Mr. Turner receive explicit permission from his supervisors to administer the syrup?

• Did Mr. Turner receive an order not to administer the syrup?

• Did the supervisors, by their action/failure to act, condone Mr. Turner’s actions?

[121]    Mr. Turner alleges that Mr. Bechard gave him explicit permission to proceed. At the hearing, Mr. Turner testified that Mr. Bechard told him to “go ahead”. In cross-examination, he admitted that it was possible that this was not said. This hearing was the first time that Mr. Turner stated that he had received such explicit permission. Mr. Turner alleges that Ms. Rae said to him, as he was walking to the detention area: “You know what you are doing.” Both supervisors denied giving Mr. Turner permission to administer the syrup of ipecac. I find that no direct instructions or orders were given to Mr. Turner to proceed with the administration of the syrup.

[122]    The employer has alleged at this hearing that a direct order not to administer the syrup of ipecac was given by Mr. Bechard when he said: “No, we’re not doctors.” This was not the employer’s view when it terminated Mr. Turner’s employment. The investigation report concluded that the supervisors had not attempted to stop Mr. Turner from administering the syrup. The discipline letters provided to both supervisors clearly criticize their failure to take control of the situation. The testimony of Mr. Bechard on this point is not credible. Firstly, the report he prepared immediately following the incident did not contain any reference to what Mr. Bechard testified to as a fairly straightforward “no”. Secondly, there was only one other customs inspector (Mr. McLaughlin) who allegedly heard this comment, from a relatively long distance away (38 feet), when no other customs inspector heard the comment. I find that the evidence of Mr. McLaughlin is not credible. I cannot accept that he heard any such comment from the distance that he was from Messrs. Turner and Bechard, especially in view of the fact that no one else heard it. If I am mistaken, the comment heard by Mr. McLaughlin does not support the position that Mr. Bechard explicitly told Mr. Turner not to administer the substance. Mr. McLaughlin testified that he did not hear Mr. Bechard say “no”, but only heard him say that he was not a doctor and that he was going to call the EMS. His statement to Mr. Wardhaugh (summarized in Exhibit E-7), that his impression of Mr. Bechard’s response was “a flat out no”, is not credible as he testified that he spoke to Mr. Bechard prior to this interview. Furthermore, it is what was allegedly said to Mr. Turner that is important, not what a bystander’s “impression” might be.

[123]    The actions of Ms. Rae are also of some concern. She should have known that Mr. Turner’s proposed course of action was not appropriate. The argument of the employer that those witnessing the scene, including Ms. Rae, thought that Mr. Turner had specialized training and knew what he was doing does not ring true. No amount of special training could justify the administration of a substance internally without consent in the situation that arose on July 23, 2004.

[124]    Condonation by supervisors has been considered by arbitrators to be a significant mitigating factor: Re Ontario (Ministry of Natural Resources) v. Ontario Public Service Employees Union (Wickett) (2005), 143 L.A.C. (4th) 14. Two superintendents, Ms. Rae and Mr. Bechard, were present for most of the events on July 23, 2004. Neither of them took the appropriate action. Given the rather straightforward provision in the “Enforcement Manual” prohibiting medical intervention unless there is an extreme medical emergency, they should have taken a more active role to take control of the situation. Although events happened quickly, this was not the case of a supervisor watching while an employee strikes a client in a moment of anger. The supervisors here had the opportunity to take control of the situation and did not do so. They bear some of the responsibility for the assault on Mr. “A”. I regard this as a significant mitigating factor.

Proportionality of other discipline imposed

[125]    This factor is related to the role of the supervisors in the incident. Mr. Bechard received a counselling letter and Ms. Rae received a three-shift suspension. (It is not clear from an examination of the employer’s “Discipline Policy” (Exhibit G-8) whether a counselling letter is considered to be the same as a written reprimand. However, its tone is certainly that of a reprimand.) In Re Canron Ltd. v. International Molders & Allied Workers, Local 16 (1975), 9 L.A.C. (2d) 391, the arbitrator concluded that, where a member of management is partially responsible for an incident, it is inequitable for the employee to bear the “full brunt” while the member of management goes “scot free”. In this case, the supervisors did not totally escape their responsibility, but their penalties were significantly lower than Mr. Turner’s.

[126]    Equal treatment for equal cases is a fundamental part of fairness and reasonableness in labour relations. In Re International Association of Machinists, Lodge 890, v. S.K.D. Manufacturing Ltd. (1969), 20 L.A.C. 231, the arbitrator quoted an earlier unreported decision (Re Brockville Gas Co., unreported, (1968)):

. . .

. . . “the logic of this same principle requires that even where offences are somewhat different in character, the difference in the form of penalty imposed must not be radically out of line with the difference in employee fault, especially where they arise out of the same incident”.

. . .

[127]    In Re Toronto Police Services Board v. Toronto Police Association (De Sa) (2002), 110 L.A.C. (4th) 232, an officer was discharged, one supervisor received a 10-day suspension and another supervisor received a 20-day suspension. Two officers were engaged in horseplay that escalated to an altercation. It was alleged that the supervisor who received the 20-day suspension had observed the actions of the grievor. The arbitrator concluded that the employer had not established that the supervisor had observed the actions of the grievor. The arbitrator stated that if he had found the opposite, he would not have interfered with the imposed penalty:

. . .

To have encountered such an event, which everyone agrees was wholly improper and completely unprecedented, without taking any steps to end it immediately, is a very serious offence for a supervisor.

. . .

[128]    In this case, Ms. Rae observed Mr. Turner preparing to administer the substance and did not intervene or obtain further information about the substance being administered. Mr. Bechard was also aware of Mr. Turner’s planned course of action. This failure to intervene by his supervisors would warrant a significant disciplinary penalty for both. The discipline imposed was, in fact, very light for both supervisors. In my view, the disciplinary action of discharge was not proportionate to the other discipline imposed.

Likelihood of a recurrence of the behaviour/rehabilitative potential

[129]    The use of excessive force on a person in custody will not necessarily justify dismissal if there is a finding that the conduct will not be repeated (Re Government of the Province of Ontario). There is reasonable doubt that Mr. Turner stated to Ms. Rae that he would administer the syrup again even if she told him not to. Ms. Rae was not certain if these were his exact words. Mr. Turner provided a reasonable explanation that he was talking about his course of action based on the information that he had at that time. Mr. Turner now recognizes that his actions were inappropriate and recognized this prior to the termination of his employment. I find that it is unlikely that this conduct will be repeated. I am satisfied that Mr. Turner knows that his actions were wrong and not approved by his employer.

Years of service and previous record

[130]    Mr. Turner had almost 10 years of service with the CBSA. There was no disciplinary record presented at the hearing. He has received a number of awards and letters of commendation. He was described by fellow officers who testified, as well as Ms. Rae, as a good employee.

Was the discipline warranted?

[131]    There is no doubt that the assault on Mr. “A” was a serious assault warranting significant discipline. The decision to administer the syrup of ipecac was a significant lapse of judgment on the part of Mr. Turner. I find, however, that termination of employment is too severe a penalty given the role of the supervisors and the discipline imposed on them. Mr. Turner had no history of misconduct. Given the nature of the assault, it is highly improbable that Mr. Turner will ever conduct himself in this way again. Although his apology was late, I am satisfied that Mr. Turner recognizes that his actions were inappropriate. He also appears to recognize that he cannot return to his DDH duties.

[132]    Accordingly, given all the circumstances, a lengthy suspension of one year is warranted. I note that in his grievance Mr. Turner requests that he be reinstated to his position of DDH. I doubt that I have the jurisdiction to reinstate him to anything other than a position as a customs inspector. His designation as a DDH appears to be an administrative action of the employer. However, there were no submissions on this aspect of reinstatement, and I will retain jurisdiction for a period of 60 days from the date of this decision in the event that the parties raise issues with regards to Mr. Turner’s position on reinstatement. I will also retain jurisdiction for a period of 60 days from the date of this decision to address any other issues in the implementation of this decision.

Sick leave grievance

[133]    Mr. Turner also grieved the termination of his salary and benefits while on authorized sick leave (PSSRB File No. 166-2-35897). It was Mr. Fisher’s submission that this grievance was subsumed by the corrective action requested in the termination grievance. That might be the case if the grievance was allowed in its entirety. However, as I have determined that a lengthy suspension is required, the grievance is dismissed.

[134]    For all of the above reasons, I make the following order:

Order

[135]    The grievance in PSSRB File No. 166-2-35897 is dismissed.

[136]    The grievances in PSSRB File Nos. 166-2-35899 and 358900 are allowed in part. The termination of employment is substituted with a one-year suspension without pay, effective October 8, 2004. Mr. Turner is to be reinstated with an effective date of October 9, 2005. For the period from October 9, 2005 until his return to work, he is to be compensated for his regular salary and benefits, not including overtime or shift premiums.

[137]    I will retain jurisdiction in the event of any difficulties in the implementation of this award, for a period of 60 days from the date of this decision.

May 18, 2006.

Ian R. Mackenzie,
adjudicator