FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Andrew Newman (“the grievor”) grieved his termination from his position as a border services officer with the Canada Border Services Agency (“the Agency” or “the respondent”) at Pacific Highway Crossing. The Agency terminated the grievor by a letter dated October 26, 2007 from Blake Delgaty, Director General, Pacific Region (Exhibit E‑18), for his untruthfulness during an Internal Affairs investigation (“the investigation”), and for the excessive use of force in his dealings with a charter bus driver on October 22, 2006 (“the incident”). After reciting in the letter of termination (Exhibit E‑18) the facts set out in the investigation report (Exhibit E‑9), Mr. Delgaty wrote, in part, as follows:

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When asked to explain why your account of your interaction with the driver was opposite to that of witnesses, you informed that you were sidetracked by the driver’s claim of not being able to see. You further informed in your revised conclusion report that you could have handled the situation in a more appropriate manner. When informed of the allegation of your untruthfulness, you advised that your account compared to that of the witnesses was a matter of “perspective.”

Andrew, I find accounts of your conduct, as provided by the driver and witnesses to be detailed, consistent and credible. I further find that their reports are radically opposite and contrary to the report provided by you. I also find a lack of support for your account, as you had no legal authority to challenge the driver’s vision, and failed to document and report the use of force incident, as required by CBSA policy.

Accordingly, I conclude that your account of the driver’s demeanour and comments to be untruthful. I further conclude that you were untruthful in stating that you acted in a calm and professional manager towards the driver, and that the driver had demonstrated escalating behaviour and resistance that necessitated your use of force.

While your unjustified use of force is a serious matter, of greater overriding concern is that you had been untruthful during the investigation. Andrew, your dishonesty in this matter is a direct violation of the CBSA Code of Conduct, and the Agency’s core value of Integrity. As a Border Services Officer engaged in defending Canadian laws, a great deal of trust is placed on you by your employer and the Canadian public to carry out your duties in a manner that can withstand the closest public scrutiny.

As a result of your dishonesty, you have permanently undermined your credibility, and have case [sic] serious and permanent doubt as to any reliance that can be placed on you to tell the truth in any future enforcement matters, investigations or legal proceedings. As such, you have irreparably and permanently breached the trust necessary for your continued employment. Accordingly, under the authority granted to me by the CBSA, I am terminating your employment effective the close of business on October 26, 2007 for disciplinary reasons, under section 12 (1)(c) of the Financial Administration Act.

In rendering this decision, I have taken into consideration your comments made at the pre-disciplinary meetings, along with all mitigating factors including your length of service.

…

2 In his grievance, the grievor requested the following: “I request that I be reinstated, that the discipline be rescinded, that I be repaid all lost pay and benefits with interest and that I be granted any other remedy an adjudicator may allow.”

II. Hearing

3 On behalf of the respondent, I heard testimony from Sari Hellsten, the Agency’s District Director at the Vancouver International Airport, Kelly Backman, an office manager with a construction company, Tony Tse‑Chun, the bus driver involved in the incident, Superintendent Toni Anderson, traffic superintendent at Pacific Highway Crossing at the time of the incident and the grievor’s supervisor, Chief Doug Clarke, Acting Director at Pacific Highway Crossing, Mr. Delgaty and Supt John Ashikian, an Internal Affairs investigator. On behalf of the grievor, three border services officers — Dan Sullivan, the grievor’ bargaining agent representative, Cory Brezden and Gordon Duthie —, the grievor and Sergeant Joel Johnston testified. Sgt Johnston was qualified as an expert witness and gave evidence about the use of force.

A. Background

4 The Agency has a Customs Enforcement Manual (“the Customs Enforcement Manual”), and excerpts from part 6, “Searches and Enforcement Actions – Persons”, chapter 5, “Use of Force Policy and Procedures” (“the Policy”; Exhibit E‑3), were before me. The salient portions of the Policy read as follows:

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35. Officers must be prepared to fully articulate their reasons for the selection of their intervention option in any particular situation.

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38. Officers must complete a Use of Force Report (E642) within 24 hours, or as soon as practical, each and every time they employ force to control a situation.

Note: See Appendix B for a sample Use of Force Report (E642) and instructions for its’ [sic] completion.

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58. Officers will, as soon as possible after an event involving use of force, record the details in their Customs Notebook (CE1).

59. A Use of Force Report (E642) will be completed within 24 hours, or as soon as practical, and submitted to the shift superintendent after all situations/incidents where force is applied.

…

5 The Policy is based on the “Incident Management/Intervention Model” (IM/IM). The intent of the IM/IM is that a border services officer “… continuously assesses risk and applies the necessary intervention to ensure public and officer safety.” The IM/IM is depicted visually in Appendix D of the Customs Enforcement Manual with situational factors at the core, surrounded by assessments by border services officers as to whether a given subject is cooperative, not cooperative, resistant or combative, or poses a threat of death or grievous bodily harm. Border services officers’ interventions consist of their presence, verbal intervention, empty hand control (soft), empty hand control, aerosols, impact weapons and lethal force. Surrounding the threats and interventions is the concept of tactical repositioning. I heard explanations of the IM/IM from a number of witnesses. The concepts are easy to understand, but applying them can require border services officers to make split‑second assessments and to continuously reassess their own responses and a subject’s behaviour during an incident.

6 Sometime after September 1, 2001, local management at Pacific Highway Crossing introduced the use of traveller declaration cards (the “E‑311 cards”), used for clearing buses, including charter buses. Those cards are used typically by air travellers, and they must be filled out by the head of a household or by each independent traveller. Those cards require information from travellers about their absence from Canada, purchases, goods being brought into the country and other matters. The evidence from all parties appeared to be that those cards were in use at the relevant time at Pacific Highway Crossing. The parties differed as to whether it was mandatory or discretionary for border services officers to use those cards to clear bus traffic. I heard evidence from a number of witnesses on this point. The grievor was not disciplined because he asked a bus driver for E‑311 cards.

7 Although that point was more than thoroughly canvassed in the testimony, this is not a case in which the grievor provided E‑311 cards, which Mr. Tse‑Chun then refused to fill out or to provide to his passengers to fill out. It is clear that border services officers have also used verbal declarations rather than E‑311 cards, which was a matter of discretion. In this case, another border services officer cleared the bus in question using verbal declarations from the passengers after the grievor took Mr. Tse‑Chun into the land border office at Pacific Highway Crossing (“the land border office”).

8 At this point, it is convenient to discuss a number of evidentiary issues, which required a ruling from me during the hearing.

B. Evidentiary issues

1. Admissibility of prior complaints

9 During the testimony of Supt Anderson the respondent attempted to introduce evidence of other complaints, from the public and discussed with the grievor, which tended to demonstrate a behavioural pattern that the Agency considered in its decision to terminate the grievor. The grievor objected on the basis that admitting those prior complaints was prejudicial. The grievor did not have an opportunity to grieve the allegations contained in those other complaints, as the Agency did not impose discipline in relation to those complaints. The grievor was not afforded natural justice and was not given an opportunity to tell his side of the story regarding the allegations contained in those complaints.

10 I determined that the prior complaints were not admissible as they were not part of the grievor’s disciplinary record. In my view, prior complaints could not be used to shed light on whether the grievor likely committed the alleged workplace misconduct and could not be used to consider the appropriateness of the discipline imposed in this case or other alternative sanctions.

2.Admissibility of the grievor’s disciplinary record

11 The respondent alleged that a one-day disciplinary suspension imposed on the grievor on July 28, 2006 was grieved but never referred to adjudication. The grievor said that it was still a live issue as the respondent never rendered a decision at the final level of the grievance process.

12 The respondent argued that, under section 90 of the Public Service Labour Relations Board Regulations, SOR/2005-79, an employee has 40 days to refer a grievance to adjudication after receiving no decision in the grievance process. The grievor stated that a hearing still has not been scheduled at the final level of the grievance process, that a final decision still has not been rendered and that the grievance on the one-day disciplinary suspension is still alive. The grievor said that, until that grievance is determined at adjudication, it is still alive, and that no evidence should be heard on it. The respondent stated that, if the grievor wished to challenge its decision, he should have referred his prior grievance to adjudication within the 40-day time limit.

13 I ruled that I could hear evidence on the one-day disciplinary suspension. I indicated that, if it was an unresolved issue between the parties, I would sort out in this decision what evidence could be used to assess the second and third parts of the test in Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P‑162 (“William Scott”), [1977] 1 Can. L.R.B.R. 1 (B.C.), in relation to the matter before me. The grievor said that, by admitting the suspension letter, I would in essence be making a determination of a grievance that would be referred to another adjudicator.

14 At the June 2010 hearing session, there was no agreement as to whether the July 28, 2006 suspension letter formed part of the grievor’s disciplinary record, and that point was difficult to determine based on the parties’ submissions. The grievor indicated that he would adduce evidence as there was a live issue; however, he did not adduce evidence on this point or address it in his final argument.

15 During an evidentiary objection in the grievor’s cross-examination on the afternoon of February 6, 2012, about whether the respondent could pursue the substance of other complaints referred to in an email from Supt Brezden to Chief Clarke, dated October 24, 2007 (Exhibit E‑15), the grievor conceded that the July 28, 2006 suspension letter was part of his disciplinary record. The suspension letter was then admitted as Exhibit E‑4. The one‑day disciplinary suspension was for events that arose on November 22, 2005, during the secondary examination of a traveller, involving a physical engagement with a traveller. The salient part of the suspension letter reads as follows:

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Following a verbal altercation with [a traveller] at the Primary area, you directed him to Secondary. Although you had indications that the traveler was agitated during your verbal interaction with him at Primary, you nevertheless proceeded to readily eliminate the distance between yourself and the traveler. During our meeting, you explained that you believed that you were in a pre-assaultive sitation and had no option other than to physically engage the traveler. However, the distance between you and the traveler was available whereby diffusion techniques could have been employed prior to physically engaging the traveler.

As a Border Services Officer, you are accountable to the Canadian public and your Employer to perform your duties in a manner that will withstand the closest scrutiny. A great deal of trust is placed in you to exercise proper judgement when confronted with such situations and to use the appropriate techniques taught to you to deliver training. Your disregard for assessing available alternatives to physically engaging the traveler does not demonstrate appropriate judgement and is counter to your training.

…

[Sic throughout]

16 In cross-examination, the grievor raised part of the suspension letter (Exhibit E‑4) as a mitigating factor. The respondent wished to question the grievor to obtain further details about the action plan and the complaints. I did not permit the respondent to question the grievor in detail on that point, given my earlier ruling. It is clear that the Agency considered the prior complaints and the suspension letter when determining whether to terminate the grievor.

17 The grievor’s disciplinary record consists of a one-day suspension without pay, which was imposed after the Agency accepted an Internal Affairs investigation report about events that occurred on November 22, 2005. Supt Anderson found that the grievor was remorseful, that he accepted his part in escalating a situation and that he had a five‑year record of service at that time. The one-day disciplinary suspension was imposed on July 28, 2006 (Exhibit E‑4).

18 I cannot use the suspension letter (Exhibit E‑4) to infer that the grievor probably used excessive force on October 22, 2006. However, I note that it is clear from the evidence that the grievor had the suspension letter in mind when he dealt with Supt Anderson and Supt Brezden following the incident in the case before me. The suspension letter is also relevant to the second and third considerations of the William Scott test, which are whether the discipline imposed was inordinate in the circumstances and whether a lesser form of discipline should be substituted.

3. Admissibility of the investigation report

19 During the first hearing session in June 2010, the grievor objected to the admissibility of Supt Ashikian’s report (Exhibit E‑9) on the basis that it was prejudicial and contained hearsay and that it drew conclusions best left to the adjudicator. The grievor claimed that the report includes information from witnesses who would not be called for cross-examination.

20 The respondent stated that it was common to file investigation reports and that many of the persons referred to in Supt Ashikian’s report (Exhibit E‑9) were called or would be called for questioning at the hearing. The Agency based its decision to terminate the grievor on the investigation report.

21 The grievor said that the potential prejudice of admitting Supt Ashikian’s report (Exhibit E‑9) outweighed its probative value and that Supt Ashikian had nothing to contribute other than that he had conducted the investigation. The grievor said that case law supported his position but that he did not have that case law with him, as he did not think that the respondent would introduce the investigation report (Exhibit E‑9) as evidence.

22 The respondent submitted that Supt Ashikian interviewed people and determined that an excessive use of force occurred. The Agency relied on the investigation report’s conclusion (Exhibit E‑9) and the respondent did not understand the objection. Supt Ashikian was tasked with the investigation as per normal procedure, and the Agency reviewed his report and disciplined the grievor. Hearsay evidence is admissible before an adjudicator.

23 The grievor submitted that he asked for documents three weeks before the hearing and that he was told that he would not get them until the date of the hearing. The respondent disputed that assertion and stated that it contacted the grievor by telephone on two occasions to get the coordinates of where to forward the investigation report (Exhibit E‑9) and that the grievor never responded.

24 An adjournment was required to hear the balance of the case, as some witnesses were not available. It was my view that, when a party refers to the existence of authorities, it should supply them, and I directed that the parties file written arguments on the admissibility of Supt Ashikian’s report (Exhibit E‑9). The grievor provided his arguments on June 14, 2010. The respondent responded on June 23, 2010, and the grievor rebutted on July 15, 2010.

25 After reviewing the parties’ written arguments, I determined that the investigation report (Exhibit E‑9) was admissible. I advised the parties in writing on October 8, 2010 that it was admissible and that I would provide written reasons in this decision.

26 The grievor’s argued that the investigation report (Exhibit E‑9) was hearsay evidence, according to Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para 3:4310, Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 3rd ed. (2009), at para 6.2, and Black, Nolan and Nolan-Haley, Black’s Law Dictionary, 6th ed. (1990). Any information unearthed by Supt Ashikian can be introduced by calling witnesses. The report contains conclusions and inferences related to credibility that are prejudicial and that infringe on the adjudicator’s jurisdiction to decide those points based on proper evidence and testimony. The grievor relied on Alberta v. Alberta Union of Provincial Employees, [2000] A.G.A.A. No. 46 (QL), and on Canadian Union of Public Employees – Local 1750 v. Ontario (Workplace Safety and Insurance Board), Crown Employees Grievance Settlement Board File No. 2003‑3741 (20050930). The grievor also relied on British Columbia Institute of Technology v. British Columbia Government Employees’ Union (1995), 47 L.A.C. (4th) 99, in which an arbitrator refused to admit an investigation report, as follows:

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The Investigation Report is not an arbitration award. It is not a juridical determination of any sort, nor could it ever have been intended as such…

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However, it is the duty of this arbitration board to make the binding conclusions. The tendering of the Investigation Report cannot be a substitute to any degree. If accepted, it would be associated with the other evidence and the evidentiary process would be tarnished; and merely because of its potential to influence the arbitrator, his decision would be tarnished too.

The Investigation Report is therefore prejudicial…

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I agree with the union then that the probative value, if any, is outweighed by the danger of prejudice. I also agree that the Investigation Report ought not to be admitted because it would tell me how to decide the case. That decision must come to me from the evidence, and not a report about the evidence…

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27 The respondent submitted that Supt Ashikian and the persons that he interviewed were made available for cross-examination. The investigation report (Exhibit E‑9) was an integral part of the Agency’s decision-making process. Were the respondent barred from introducing the report, it would seriously undermine its right to make its case. Subsection 226(1) of the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, specifically allows an adjudicator to admit hearsay evidence, as follows:

226. (1) An adjudicator may, in relation to any matter referred to adjudication,

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(d) accept any evidence, whether admissible in a court of law or not …

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28 An adjudicator cannot reject hearsay evidence out of hand just because it is hearsay evidence; see Canada (Attorney General) v. Basra, 2010 FCA 24, at para 21. The respondent relied on para 6.346 of Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (1999), as follows:

§6.346 In proceedings before most administrative tribunals and labour arbitration board, hearsay evidence is freely admissible and its weight is a matter for the tribunal or board to decide, unless its receipt would amount to a clear denial of natural justice. So long as the hearsay evidence is relevant, it can serve as the basis for the decision, whether or not it is supported by other evidence which would be admissible in a court of law.

[Footnotes omitted]

29 In reply, the grievor argued that not all the persons referenced in the investigation report (Exhibit E‑9) were called as witnesses and that those who gave evidence were not asked to identify their statements to Supt Ashikian. It is impossible to test in cross-examination the veracity of comments made to Supt Ashikian. It is a denial of natural justice when no valid reason is given for the failure of a witness to testify; see B. v. Catholic Children’s Aid Society of Metropolitan Toronto (1987), 59 O.R. (2d) 417 (Div. Ct.). The grievor submitted that the prejudicial effect of the report’s admission exceeded its probative value and that it should not be admitted.

30 Supt Ashikian interviewed eight witnesses, including the grievor. The respondent called all those witnesses with the exception of Glenn Bonnett, Acting Chief of Traffic Operations at Pacific Highway Crossing, and Kim Scoville, Director of the Program and Communications Divisions for the Agency’s Pacific Region at the time of the incident. I note that neither Acting Chief Bonnett nor Mr. Scoville witnessed the incident. Acting Chief Bonnett’s statement is in paragraphs 7(a) to (f) on pages 5 to 6 of the investigation report (Exhibit E‑9). His comments deal in part with Pacific Highway Crossing procedure and his concerns about the allegations made by Ms. Hellsten and Ms. Backman. The report does not set out the information that Mr. Scoville communicated to Supt Ashikian.

31 In the respondent’s opening statement, I was told that one of the allegations against the grievor was that he was dishonest during the investigation. The respondent stated that it would call Chief Clarke and Mr. Delgaty, who were involved in the grievor’s termination, which was based on the investigation report (Exhibit E‑9).

32 I note that the difference between this case and British Columbia Institute of Technology is that the respondent in the latter case did not propose to call the witnesses in support of its case. Further, no allegations of untruthfulness were made during the very lengthy harassment investigation. In my view, in this case, the investigation report (Exhibit E‑9) is relevant to the allegation that the grievor was untruthful during the investigation. The report contains the versions of the events given by witnesses, the grievor’s statement (Exhibit E‑9, Appendix A) and a change to the conclusion in the grievor’s statement (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” Clearly, this information is relevant to the allegation of whether the grievor was untruthful during the investigation. The witnesses interviewed by Supt Ashikian were called as witnesses in this case and were cross‑examined. Therefore, the grievor had an opportunity to test their evidence.

33 I note that, in certain other decisions, some arbitrators or adjudicators did not admit investigation reports. The basic thrust of their reasoning is that investigation reports contain ultimate conclusions, which an adjudicator is to reach. Therefore, the information contained in investigation reports is prejudicial and without probative value.

34 I am not bound by any information in the investigation report (Exhibit E‑9) or by its conclusions. When the issue of adducing the report was raised, I simply determined its admissibility and not its weight. Short of admitting the report, which contains the information relied upon by the Agency, there would be no identification of the “dishonesty” in the investigation found by comparing the information provided by the witnesses to the information provided by the grievor.

35 This is simply not a case of prior consistent or inconsistent statements but rather allegations of untruthfulness during an investigation, which was a basis for the Agency’s decision to terminate the grievor. The investigation report (Exhibit E‑9) is relevant to the issue of why the Agency terminated him. His statement to Supt Ashikian and Supt Ashikian’s conclusion is some evidence of the grievor’s untruthfulness during the investigation. The report is important to the unfolding of the narrative.

36 The hearing before me was de novo: Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.) (QL). It was not simply a review of Supt Ashikian’s findings or of the Agency’s decision to terminate the grievor. The respondent was required to justify the grievor’s termination based on a balance of probabilities using clear, cogent and convincing evidence: F.H. v. McDougall, 2008 SCC 53. Hearsay is broadly admissible in adjudication proceedings. Supt Ashikian’s report (Exhibit E‑9) contains the information that the Agency used to terminate the grievor. It is essential that I consider the report to understand the Agency’s reasons for terminating the grievor. In particular, the allegation of dishonesty during the investigation cannot be properly considered without the report being adduced in evidence. The report is relevant to issues that I have to determine; therefore, it is admissible. Its ultimate weight is for me to assess.

37 During Supt Ashikian’s cross-examination, the grievor argued again for the exclusion of the investigation report (Exhibit E‑9) on the basis that it was incomplete, as it was missing pages 1 to 5. This was not part of his earlier argument in his written submission. However, the evidence was that it was the full investigation report, except for five pages of Supt Ashikian’s notes of his interview with the grievor, which had been incorporated into the substance of his report.

38 I note that I already determined that the investigation report (Exhibit E‑9) is admissible. It was substantially in the form prepared by Supt Ashikian. It was not Supt Ashikian’s usual practice to attach full interview notes to his reports. It is clear that the notes were not part of his report but that they were paraphrased in it.

4. Admissibility of Mr. Tse‑Chun’s statement

39 The grievor objected to the admissibility of Mr. Tse‑Chun’s statement on the basis that Mr. Tse‑Chun did not sign it, and the grievor wanted Supt Ashikian’s notes and the questions that Supt Ashikian asked because Mr. Tse‑Chun required an interpreter at the hearing before me. Therefore, any suggestion that the investigation report (Exhibit E‑9) was accurate was suspect. I note that the investigation report referred to Mr. Tse‑Chun’s statement.

40 I noted that, during Mr. Tse‑Chun’s testimony, the grievor objected to the respondent authenticating Mr. Tse‑Chun’s statement through Mr. Tse‑Chun. I supported the grievor’s objection that Mr. Tse‑Chun was unable to verify the accuracy of the statement written in English given his apparent language difficulties, which required him to give evidence through a Mandarin interpreter.

41 After hearing all the testimony, particularly that of Supt Ashikian, I was satisfied that Supt Ashikian accurately reported Mr. Tse‑Chun’s information in his usual form for taking statements. I am satisfied from Supt Ashikian’s testimony that there are no substantial issues about the authenticity of Mr. Tse‑Chun’s statement. I noted a difference between the statement and Mr. Tse‑Chun’s testimony, but that goes to the weight of Mr. Tse‑Chun’s oral testimony and not to the statement’s admissibility. Mr. Tse‑Chun’s statement was admitted as Exhibit E‑20.

5. Admissibility of Supt Anderson’s use-of-force testimony

42 The grievor objected to some of Supt Anderson’s evidence and characterized it as expert use-of-force evidence.

43 Supt Anderson is familiar with the Customs Enforcement Manual and the IM/IM. She also supervised the grievor. The respondent argued that Supt Anderson could explain when force was justified, that an expert is not necessary to explain the IM/IM and that all border services officers are familiar with the IM/IM. The grievor argued that, if Supt Anderson were to provide an opinion, she had to be qualified as an expert. The respondent replied that all the employees should be IM/IM experts, as they apply it.

44 In my view, the respondent is entitled to introduce evidence as to why the grievor’s conduct was investigated and why he was terminated. The ultimate issue of whether the force used was excessive, unreasonable or unjustified is a decision for me to make after hearing all the evidence in this case. Supt Anderson was trained in the IM/IM, supervised employees in its application and applied it herself in her dealings with the public. Thus, a basis exists on which she could testify about the force used and whether it was reasonable.

6. Admissibility of Sgt Johnston’s use-of-force written opinion

45 At the July 2011 hearing session, Sgt Johnston was qualified to give an expert opinion on the use of force, including the explanation of the use-of-force continuum used by peace officers. Sgt Johnston’s resume was filed as Exhibit G‑1. The grievor then attempted to introduce a written opinion by Sgt Johnston, dated June 2, 2010, which had not been provided to the respondent in advance of the hearing.

46 The respondent objected to the admissibility of Sgt Johnston’s written opinion as notice had not been given in advance of the hearing. The respondent relied on the Canada Evidence Act, R.S.C., 1985, c. C‑5, and stated that it was entitled to 30 days’ notice. The grievor then argued that he would not rely on the written opinion and that he would simply introduce Sgt Johnston’s oral opinion. The respondent argued that the Canada Evidence Act also applies to experts’ oral opinions. The grievor argued that he had just received the written opinion, which was surprising given that it was dated June 2, 2010.

47 Sgt Johnston first became aware of this grievance in 2010. He was provided with background documents, including the investigation report (Exhibit E‑9) and the termination letter (Exhibit E‑18). He wrote a written opinion that included a synopsis of the incident.

48 I adjourned the hearing of Sgt Johnston’s opinion evidence until the respondent had received 30 days’ notice, which is consistent with the requirements of the Canada Evidence Act. Sgt Johnston’s written opinion was admitted in evidence (Exhibit G‑4) during his testimony at the February 2012 hearing session.

7. Abusive cross-examination of Mr. Delgaty and Supt Ashikian

49 I twice ruled that the cross-examination being carried out on witnesses was abusive and determined that the grievor had to move on to another topic. The first time was when the grievor asked Mr. Delgaty how much Mr. Delgaty was paid for his work. The grievor berated or belittled the witness as to how Mr. Delgaty exercised his delegated authority on behalf of Canadian taxpayers. The second time was when the grievor was abusive in his questioning of Supt Ashikian as to the witness’s knowledge of personal customs exemptions and the use of force.

8. Production of Supt Ashikian’s notes

50 The grievor requested the list of questions and the notes that Supt Ashikian used for all witnesses. The grievor did not make the request in advance of the hearing. The respondent said that the request was considered and that the respondent believes that that information was destroyed. Supt Ashikian testified that no notes remain in his possession. The grievor referred to a statement at page 18 of the investigation report (Exhibit E‑9) that documents were retained.

51 Based on the information provided by the respondent, I was unable to make an order for the production of the documents at issue as the notes apparently no longer existed at the time of the hearing and were not in Supt Ashikian’s possession.

C. Summary of the evidence

52 It is appropriate at this point to consider the evidence about the incident. I will set out the incident and then set out the salient points from the examinations-in chief, cross-examinations and re-examinations of the witnesses. However, I will not recount all the testimony from the lengthy hearing. However, I will set out a lengthier description of the testimony than I would ordinarily since this case turns principally on the facts, which were disputed.

53 The incident took place at Pacific Highway Crossing on the evening of October 22, 2006. The grievor was in uniform and was working an afternoon shift clearing buses, passengers and their luggage. Another border services officer assisted the grievor earlier that evening, but at the relevant time, the other border services officer was called away to other work, and the grievor was working alone. It was a busy night as a number of events were underway in the Seattle, Washington, area, including a Seattle Seahawks game. At the relevant time, it was dark and raining.

54 Mr. Tse‑Chun was driving a charter bus that had taken a Bantam hockey team from the Vancouver area to play at a hockey tournament in Seattle. There were about 30 to 35 passengers on the bus, including boys and adults. Two of the passengers were Ms. Hellsten and Ms. Backman, adults chaperoning their sons and other boys. Although Ms. Hellsten and Ms. Backman have sons on the same hockey team, they are acquaintances rather than friends. For example, before the incident, Ms. Backman did not know that Ms. Hellsten works for the Agency.

55 The bus arrived at Pacific Highway Crossing. After the grievor boarded the bus, the incident occurred, which resulted in the grievor directing Mr. Tse‑Chun to leave the bus. Both individuals proceeded into the land border office. Once inside, the grievor and Supt Anderson interacted with Mr. Tse‑Chun. Another border services officer cleared the bus and its passengers, and Mr. Tse‑Chun was permitted to re‑board his bus.

56 What happened on the bus, outside the bus and inside the land border office is in dispute. As for the events inside and outside the bus, I heard evidence from Ms. Hellsten, Ms. Backman, Mr. Tse‑Chun and the grievor. As for the events inside the land border office, I heard testimony from Ms. Hellsten, Ms. Backman, Mr. Tse‑Chun, Supt Anderson, Off. Duthie and the grievor. The grievor called Supt Brezden as a witness to depose what Supt Anderson told Supt Brezden about the incident after Supt Brezden made inquiries on the grievor’s behalf a couple of days after the incident.

57 Ms. Hellsten spoke of her concern in a general way to Chief Clarke. Chief Clarke suggested that Ms. Hellsten provide a witness statement. She prepared one and asked Ms. Backman to prepare one too. Ms. Hellsten provided the statements to Chief Clarke. After he read them, Chief Clarke met with the grievor, removed the grievor from enforcement duties and posted the grievor to the CANPASS Processing Centre on about November 24, 2006

58 The incident was subsequently investigated by Supt Ashikian. Frank Bardoul, Manager, Internal Affairs, assigned the investigation to Supt Ashikian on December 12, 2006, as a result of a referral from Mr. Scoville on or about November 22, 2006.

59 At this point, it is convenient to summarize the testimonies of the witnesses.

1. Ms. Hellsten’s testimony

a. Examination-in-chief

60 Ms. Hellsten has been employed since 1983 with the Agency and its predecessors. Since April 2010, she has been District Director of the Vancouver International Airport. She is responsible for overseeing passenger and cargo processing and over 400 employees report to her. At the time of the incident, she was responsible for trade compliance for the Agency. She reports to Mr. Delgaty.

61 Ms. Hellsten confirmed that she was on the charter bus returning from her son’s hockey game in Seattle and that the bus arrived at Pacific Highway Crossing at about 19:30. There were 35 to 40 people on the bus, 17 of whom were on the Bantam-level hockey team. Ms. Hellsten was sitting halfway down on the left side of the bus, behind Mr. Tse‑Chun. She estimated her distance from Mr. Tse‑Chun as approximately 10 to 12 feet.

62 Ms. Hellsten testified that Mr. Tse‑Chun was a slight Asian man, likely five-foot two-inch or five-foot three-inch tall. Ms. Hellsten described Mr. Tse‑Chun as quiet, polite and respectful to the passengers before the incident and as calm when the bus arrived at Pacific Highway Crossing.

63 Ms. Hellsten said that the grievor boarded the bus. She could hear the conversation between the grievor and Mr. Tse‑Chun. Ms. Hellsten described the tone as clearly audible from her seat. She could clearly see the grievor’s and Mr. Tse‑Chun’s interaction, but Mr. Tse‑Chun was seated and the grievor was standing. The grievor asked Mr. Tse‑Chun if he had E‑311 cards for everyone on the bus. Mr. Tse‑Chun replied that he did not. The grievor continued to question Mr. Tse‑Chun about why he did not have them. Mr. Tse‑Chun said that he did not know that E‑311 cards were required because he did not cross the border often and did not know that E‑311 cards were needed for a day trip.

64 Ms. Hellsten said that the grievor’s tone escalated quickly from very firm to officious. The grievor did not appear happy with Mr. Tse‑Chun’s response and was trying to get to the bottom of it in a stern tone. Mr. Tse‑Chun’s voice was quieter than that of the grievor. Mr. Tse‑Chun did not challenge the grievor, was not aggressive and did not make any inappropriate remarks.

65 The grievor told Mr. Tse‑Chun that, if he was not aware of the regulations, the grievor would go inside and get a copy to show him. Ms. Hellsten said that the grievor spoke those words rudely. Mr. Tse‑Chun did not respond and waited until the grievor retrieved the information.

66 Ms. Hellsten testified that the grievor returned with a piece of paper, which he shoved in front of Mr. Tse‑Chun. The grievor said, “Here, read these.” Ms. Hellsten presumed that it was information about the E‑311 cards. Mr. Tse‑Chun said, “I can’t see it, I can’t read it.” Ms. Hellsten stated that the bus lighting was subdued and dim.

67 Ms. Hellsten stated that the grievor went on a bit of a tangent about Mr. Tse‑Chun’s eyesight. The grievor repeatedly asked Mr. Tse‑Chun in a condescending tone how Mr. Tse‑Chun could possibly drive the bus if he could not see. In addition, the grievor turned to the bus passengers and asked whether they were concerned for their safety as they had a driver who could not see or operate the bus. The gist of the response from passengers was that they had no concerns and that they were more than happy with Mr. Tse‑Chun’s services.

68 Mr. Tse‑Chun continually shook his head. Mr. Tse‑Chun did not respond. The grievor told Mr. Tse‑Chun that they would have to speak with Mr. Tse‑Chun’s employer and find another driver because, with Mr. Tse‑Chun’s vision issues, Mr. Tse‑Chun could not safely continue to operate the bus. The grievor told Mr. Tse‑Chun that Mr. Tse‑Chun would have to accompany the grievor inside the land border office for further determination with Mr. Tse‑Chun’s employer. Ms. Hellsten described Mr. Tse‑Chun’s demeanour as compliant. She said that he left with the grievor; he was a small man and was “not intimidating” to the grievor.

69 Ms. Hellsten said that she next heard a commotion and concern expressed by passengers on the bus. She said that, when she turned around, she caught a glimpse of the grievor and Mr. Tse‑Chun in front of the bus. She noticed the grievor holding the scruff of Mr. Tse‑Chun’s neck or collar and pushing him forward. She said that Mr. Tse‑Chun was being compliant and that, judging by their comments, the passengers appeared upset and outraged at the grievor’s treatment of Mr. Tse‑Chun.

70 A little while later, a border services officer returned to the bus and completed the clearance process by asking the passengers for identification and about any goods they purchased in the United States. Mr. Tse‑Chun was in the land border office. After the clearance was completed, some passengers asked Ms. Hellsten whether they could go to the washroom. She thought that it would be fine, as they were cleared. She accompanied some individuals into the land border office and pointed out the washroom.

71 Ms. Hellsten said that she and Ms. Backman decided to enter the land border office as Ms. Backman had arranged for the bus and had the relevant file, and Ms. Hellsten and Ms. Backman thought that they had information that might be needed.

72 Ms. Hellsten encountered Supt Anderson, who was speaking with the grievor. Ms. Hellsten could see Mr. Tse‑Chun seated off to one side. Mr. Tse‑Chun was just sitting and did not appear agitated. Ms. Hellsten could hear the conversation between the grievor and Supt Anderson. Ms. Hellsten heard the grievor say that he did not know what else to do other than contact the bus company and arrange for another driver.

73 Ms. Hellsten approached Supt Anderson and asked if other information was required or if there were any issues other than the lack of completed E‑311 cards. Supt Anderson responded that nothing else was needed or at issue and apologized to Mr. Tse‑Chun for the delay. Mr. Tse‑Chun returned to the bus with Ms. Hellsten and Ms. Backman.

74 Ms. Hellsten said that the bus left Pacific Highway Crossing at about 20:15.

75 After the incident, Ms. Hellsten first tried to contact Gail Stewart, Director of the Pacific Highway District, because Ms. Hellsten was concerned about the grievor’s conduct and assumed that the Agency was investigating the incident.

76 Ms. Hellsten called Chief Clarke and later prepared a statement (Exhibit E‑1) at his request. Chief Clarke advised Ms. Hellsten that it would help the investigation. She was asked if she knew of anyone else who had witnessed the incident and was directed to ask them to prepare statements. Ms. Hellsten prepared her statement in November 2006. She asked Ms. Backman to prepare a statement.

77 Ms. Hellsten submitted her statement (Exhibit E‑1) and that of Ms. Backman (Exhibit E‑2) to Chief Clarke. I find as a fact that Ms. Hellsten and Ms. Backman did not consult each other before preparing their statements and that Ms. Hellsten did not read Ms. Backman’s statement.

78 Ms. Hellsten said that she filed a statement (Exhibit E‑1) as she was very concerned about the grievor’s behaviour, the grievor’s interaction with Mr. Tse‑Chun and the tone of the grievor’s voice, as it was not the professional demeanour that the Agency encourages from its border services officers. She stated that she was mostly concerned with the excessive force that the grievor used ushering Mr. Tse‑Chun into the land border office.

79 Supt Ashikian interviewed Ms. Hellsten. Supt Ashikian went through her statement (Exhibit E‑1) with her, and she signed off as to the accuracy of the interview. She believes that she was interviewed in December 2006.

b. Cross-examination

80 Ms. Hellsten testified that the day trip to Seattle was for a hockey tournament. She said that the bus was a standard coach. She did not know how many rows it had or its length. She believes that she was halfway back, in an aisle seat. She was not certain of the number of rows. She agreed that she was between 5 and 10 rows from the front. The bus had high seats. She did not recall who was seated in front of her. She said that she could see Mr. Tse‑Chun’s back. She believes that she stood up during the commotion about physical force. She did not recall whether Mr. Tse‑Chun’s overhead light was off or on.

81 When the grievor entered the bus, the passengers quieted due to his tone. The discussion about not knowing that E‑311 cards were required ensued and lasted about five minutes. She stated that no E‑311 cards were on the bus.

82 Ms. Hellsten said that border services officers are expected to be professional. Today, a passport is required, but at all times, a border services officer has to determine whether bus occupants are admissible to Canada.

83 Ms. Hellsten did not see the grievor and Mr. Tse‑Chun leave the bus, but she heard the grievor ask Mr. Tse‑Chun to leave. She saw some of the grievor’s and Mr. Tse‑Chun’s interaction outside the bus. Ms. Hellsten caught a glimpse from the front of the bus, where the grievor had hold of Mr. Tse‑Chun’s collar. Ms. Hellsten did not see anything before that. She said that Mr. Tse‑Chun and the grievor entered the land border office.

84 Ms. Hellsten thought that Mr. Tse‑Chun was five-foot two-inch tall and that he weighed maybe 120 pounds.

85 The commotion that Ms. Hellsten heard was the passengers’ reactions to what was occurring. She could not say exactly when, but she saw the grievor push Mr. Tse‑Chun forward and that the grievor was holding Mr. Tse‑Chun’s collar. Ms. Hellsten did not see anything before that. She was not looking straight ahead; she turned and looked when the commotion occurred in the bus. She cannot say for sure whether it was possible to see immediately outside the bus door.

86 Ms. Hellsten was not certain whether it was raining. She said that Mr. Tse‑Chun was being ushered forward and that the grievor was holding Mr. Tse‑Chun’s collar.

87 The border services officer who later boarded the bus and took verbal declarations to clear it was polite. Ms. Hellsten did not pay any attention as to whether it was the grievor or a different border services officer, but the person had a polite, professional demeanour and a sense of humour. The border services officer asked the passengers to hold up identification. He asked about shopping and if anyone had goods valued over $50. The passengers replied in the negative. Ms. Hellsten could not recall if the grievor was the border services officer who cleared the bus after the grievor had taken Mr. Tse‑Chun off the bus.

88 Ms. Hellsten said that people got off the bus to stretch their legs and that more than one person needed to use the washroom. Ms. Hellsten did not ask for the grievor’s name and did not file a complaint with Supt Anderson when Supt Anderson dealt with the grievor.

89 Ms. Hellsten has not taken any use-of-force training. She could not comment on the specifics of the IM/IM. Her perspective was that no obvious threat could have led the grievor to have any physical contact with Mr. Tse‑Chun, as Mr. Tse‑Chun was doing what the grievor asked him to do. She was not aware of any threat from or non-compliance by Mr. Tse‑Chun once off the bus.

90 Ms. Hellsten felt that Mr. Tse‑Chun was being compliant on the bus and that he appeared confused. She did not think there was a legal requirement to use the E‑311 cards and that it was for convenience of clearance. Another border services officer later cleared the passengers with verbal declarations. It was evident that Mr. Tse‑Chun did not know of the E‑311 cards requirement. Ms. Hellsten did not think that Mr. Tse‑Chun was being purposively deceitful. She heard Mr. Tse‑Chun state that he did not think that E‑311 cards were needed on a day trip. The cards are required at airports. If a card is not completed, a traveller is asked to complete one. Ms. Hellsten believes that the E‑311 cards are not generally used at land border crossings, but she stated that she was not an expert in the Agency’s policy in this area. She understood that E‑311 cards are used to facilitate clearances, but she did not think that there were penalties for failing to provide one.

91 Ms. Hellsten left the bus after it was cleared. She does not recall a border services officer telling her to remain on the bus. Had that occurred, she would not have entered the land border office. Other buses were being processed. Ms. Hellsten believes that Mr. Tse‑Chun had been in the land border office for about 10 minutes before she entered. She could not see what was going on inside the land border office.

92 Mr. Tse‑Chun said that he could not read or see the instructions to bus drivers (“the bus‑traffic instructions”; Exhibit E‑11), when the grievor presented them to Mr. Tse‑Chun.

93 After the incident, other parents asked Ms. Hellsten whether something would be done. She said that a general discussion took place. She did not recall whom she spoke to or when, other than it was later in November or in December 2006. The grievor did not ask Ms. Hellsten whether she discussed details of her observations with others. She said that no discussion occurred on the bus because everyone was “down and quiet.”

94 Ms. Hellsten said that the grievor’s initial interaction was appropriate. However, he descended into a loud and condescending tone. Mr. Tse‑Chun did not have the E‑311 cards and said that he did not know that they were needed for a day trip. Ms. Hellsten wanted to make sure that Chief Clarke received her information.

95 Ms. Hellsten stated that she felt that the hockey team was owed an apology. She does not recall her exact words, but she likely stated that the grievor’s conduct was unprofessional, as she articulated to her superintendent. Ms. Hellsten hoped that the matter would be fully investigated and that appropriate discipline would be imposed if warranted.

96 Ms. Hellsten was asked about the delay providing a statement to Chief Clarke. She replied that a delay occurred connecting with him, as she had other work.

97 Ms. Hellsten saw the other hockey team players’ parents at least weekly at games; she did not always stay for practices. Ms. Hellsten said that she did not get into detailed discussions other than stating that she reported the incident and that it would be investigated. She did not obtain statements or speak with the other parents, other than Ms. Backman, since Ms. Backman had been right next to the bus door. Ms. Hellsten did not take a statement from Mr. Tse‑Chun. She felt it was not her place to conduct an investigation as she had been travelling with the parents.

98 Ms. Hellsten was not certain whether Mr. Tse‑Chun was wearing just a shirt or a jacket but recalled the grievor grabbing Mr. Tse‑Chun’s collar. When Ms. Hellsten entered the land border office, she observed Supt Anderson speaking to the grievor. She did not see any interaction with Mr. Tse‑Chun inside the land border office except for Supt Anderson telling Mr. Tse‑Chun that nothing more was required and that Mr. Tse‑Chun could leave.

99 Ms. Hellsten recalled that several other buses were lined up on the evening of the incident but did not recall how many.

2. Ms. Backman’s testimony

a. Examination-in-chief

100 Ms. Backman testified that she believed that the bus arrived at Pacific Highway Crossing at 18:30 on October 22, 2006. It was dark. There were 17 hockey players and about 18 adults on the bus, along with Mr. Tse‑Chun. Ms. Backman was seated on the right-hand side at the front of the bus, beside the window. She did not have a passenger seated beside her. She described Mr. Tse‑Chun as happy, friendly, accommodating and smiling before the interaction with the grievor.

101 Another bus was in front of them at Pacific Highway Crossing. Mr. Tse‑Chun gathered up the garbage on the bus, took the bag outside and went to put it in a garbage can. The grievor approached Mr. Tse‑Chun. Mr. Tse‑Chun returned to the bus with the garbage bag. Ms. Backman did not hear their conversation. Mr. Tse‑Chun was smiling and casual when he returned to the bus.

102 The grievor stepped onto the bus stairs and did not get close to Mr. Tse‑Chun. Ms. Backman said that the grievor asked for declaration papers. Mr. Tse‑Chun said that he did not have any and that he did not need any for a day trip. Ms. Backman recalled the grievor talking in a loud voice when he walked onto the bus. She recalled that Mr. Tse‑Chun replied in a quiet voice. Ms. Backman could clearly hear the conversation and the interaction between the grievor and Mr. Tse‑Chun, and she could see their faces. The grievor stepped up toward Mr. Tse‑Chun and said in a loud, mocking and angry tone, “Are you going to tell me how to do my job? You need the declaration papers [E‑311 cards].” Ms. Backman said that Mr. Tse‑Chun’s voice was quiet. Ms. Backman had been in charge of arranging the trip and had not been advised that E‑311 cards were needed.

103 Ms. Backman said that the grievor kept asking questions without giving Mr. Tse‑Chun an opportunity to answer. The grievor appeared agitated. His voice seemed to be getting louder, and Mr. Tse‑Chun was sitting quietly.

104 Ms. Backman formed the view that the grievor was mocking Mr. Tse‑Chun, as the grievor would speak to Mr. Tse‑Chun and then smile at the passengers. Ms. Backman thought that the grievor was performing.

105 The grievor told Mr. Tse‑Chun to wait while the grievor fetched the “bylaws.” The grievor left the bus, and Ms. Backman did not watch where he went.

106 Mr. Tse‑Chun shrugged his shoulders when the grievor left and smiled at Ms. Backman. Mr. Tse‑Chun did not challenge or try to challenge the grievor when Mr. Tse‑Chun was asked for the E‑311 cards.

107 The grievor walked up to Mr. Tse‑Chun, shoved a paper on the steering wheel and told Mr. Tse‑Chun to read it. To Ms. Backman, it was not done politely. Mr. Tse‑Chun looked at the paper and said that he could not read it. She described Mr. Tse‑Chun’s voice as quiet; he looked scared. Mr. Tse‑Chun was not aggressive and did not make any inappropriate comments. Ms. Backman cannot recall the precise words Mr. Tse‑Chun used, but the grievor shouted, appeared angry and said, “What do you mean, you cannot read this? You have been driving a busload of passengers and you cannot read?”

108 The grievor then turned to face the passengers and said, “What do you think about that, people? The bus driver has been driving you all day and he cannot read. You should ask for your money back because this bus driver cannot read.” Ms. Backman said that the grievor shouted and that his tone was mocking. He repeated the statements. Ms. Backman described the grievor as agitated and angry. He became louder the more he yelled.

109 Ms. Backman said that, for a few minutes, the grievor badgered Mr. Tse‑Chun about reading. Ms. Backman said that Mr. Tse‑Chun appeared frightened. His shoulders were hunched, he was quiet and he did not answer the grievor. Ms. Backman believed that the grievor intimidated Mr. Tse‑Chun.

110 The grievor then told Mr. Tse‑Chun that Mr. Tse‑Chun had to come with him. Ms. Backman did not see Mr. Tse‑Chun get up, but she saw the grievor exit the bus first. Then Mr. Tse‑Chun went down the steps and left the bus. Mr. Tse‑Chun did not answer the grievor before leaving the bus. Ms. Backman did not hear any verbal resistance or comments from Mr. Tse‑Chun.

111 Ms. Backman said that she turned to look and that she saw the grievor put his hand on the back of Mr. Tse‑Chun’s neck, once the grievor and Mr. Tse‑Chun were on the sidewalk and facing the land border office doors. She described the grievor’s hand as “gripping” the back of Mr. Tse‑Chun’s neck. Ms. Backman said that she could see it clearly. The grievor’s hand remained in that position, and he guided Mr. Tse‑Chun into the land border office. Ms. Backman said that Mr. Tse‑Chun was quiet and that he did what he was supposed to do. Ms. Backman yelled, “Oh my God,” when she saw the grievor put his hand on Mr. Tse‑Chun’s neck. At this point, she said that the boys in the bus became excited.

112 Ms. Backman said that she could see very clearly. She was at a window seat. She turned to watch as the grievor and Mr. Tse‑Chun left the bus. The door was open, and she could also hear very clearly.

113 Ms. Backman did not see Mr. Tse‑Chun resist, make inappropriate comments or give the grievor the finger. Mr. Tse‑Chun did not shout at the grievor and stayed quiet. She said that the land border office was 15 to 16 feet away from the bus.

114 Ms. Backman said that all the passengers remained on the bus and talked about what was taking place. She said that she, the parents and the boys were shocked, upset and frightened. She said that the same border services officer re‑boarded the bus and asked who was in charge. The grievor asked Ms. Backman whether she was aware that Mr. Tse‑Chun could not read. Ms. Backman replied that she did not think that that was the case and said that she thought that the grievor had intimidated Mr. Tse‑Chun. Ms. Backman said that the grievor yelled at her angrily and said, “Are you going to try to tell me how to do my job too?” Ms. Backman replied, “No,” and stopped talking. The grievor looked at her. She stared at him, and he left the bus and walked away. She said that the bus erupted and that the passengers wondered what was the matter with the grievor. Ms. Backman said that he walked into the land border office and that he continued to hold the back of Mr. Tse‑Chun’s neck as they entered the land border office.

115 Ms. Backman testified that Ms. Hellsten told her that the grievor’s behaviour was unacceptable, unprovoked and unnecessary and that Ms. Hellsten would see if she could talk to a supervisor. Ms. Backman could not recall Ms. Hellsten’s exact position in the bus, but Ms. Backman was able to turn and talk to her.

116 Ms. Backman went into the land border office to use the washroom. She could see Mr. Tse‑Chun, who looked scared. His shoulders were slumped. She was unable to hear any conversation. She said that Ms. Hellsten was in the land border office and was talking with someone. Ms. Hellsten returned and said that they should re‑board the bus. A different border services officer boarded the bus and said that they could go.

117 Ms. Backman described Mr. Tse‑Chun as thinner, smaller and slighter than the grievor. She indicated that the grievor was not tall, about five feet, seven inches in height.

118 Ms. Backman said that, after Mr. Tse‑Chun was taken off the bus, the passengers were “buzzing,” and the parents were trying to keep the boys calm.

119 Ms. Backman prepared a statement in early November 2006 (Exhibit E‑2) at Ms. Hellsten’s request. Ms. Hellsten told Ms. Backman that the grievor was being investigated. Ms. Backman confirmed that she did not discuss her statement with Ms. Hellsten. Ms. Backman did not help Ms. Hellsten prepare Ms. Hellsten’s statement (Exhibit E‑1), and Ms. Hellsten did not assist Ms. Backman. Supt Ashikian later contacted Ms. Backman. She provided a verbal statement over the phone. She could not recall Supt Ashikian’s name.

120 Ms. Backman did not know the grievor before the incident.

b. Cross-examination

121 Ms. Backman confirmed that Mr. Tse‑Chun got off the bus with a bag of garbage and that a border services officer told Mr. Tse‑Chun to return to the bus. In direct examination, she used the grievor’s name. She learned it during her interview with Supt Ashikian.

122 Ms. Backman did not discuss any details with Ms. Hellsten. Ms. Backman indicated that some of the hockey players’ parents commented the facts that had taken place but that no detailed discussion occurred.

123 Ms. Backman did not know what the bus‑traffic instructions (Exhibit E‑11) to facilitate clearing low-risk bus traffic said as she did not see them. She recalled Mr. Tse‑Chun saying that he could not read them. She could see Mr. Tse‑Chun’s face; his overhead light was off. She could not recall the precise time the bus arrived at Pacific Highway Crossing, but it was dark and around dinnertime, and it was not raining. She recalls meeting at 09:00 to leave from a mall. The hockey game was at 13:00. While the boys warmed up, Mr. Tse‑Chun took the passengers shopping at an outlet.

124 Ms. Backman was questioned about her statement (Exhibit E‑2), which indicates that E‑311 cards were not required. She understood that no E‑311 cards were required as she had travelled back and forth over the border in the past by car. She had never been asked for E‑311 cards when crossing the border by car. It did not occur to her that they were necessary. It was her first trip across the land border on a bus. She said that she was in the same predicament as Mr. Tse‑Chun as she did not think that E‑311 cards were necessary. Ms. Backman thought that the bus company was experienced making cross-border trips. She thought it sounded logical when Mr. Tse‑Chun said that he did not think that E‑311 cards were required. Ms. Backman confirmed that Mr. Tse‑Chun did not provide the E‑311 cards when asked. Ms. Backman said that some other passengers might have made a few small purchases but that she had made none.

125 Ms. Backman said that Mr. Tse‑Chun answered the grievor’s questions but that Mr. Tse‑Chun did not challenge the grievor. Mr. Tse‑Chun said that he did not need the E‑311 cards. A few words were exchanged, and the grievor and Mr. Tse‑Chun left the bus. Ms. Backman did not know why they left the bus, but it shocked her. Ms. Backman did not see them leave and she did not see the grievor’s initial grab of Mr. Tse‑Chun. Ms. Backman did not see or hear any discussion outside the bus. She saw the grievor with his hand on Mr. Tse‑Chun’s neck, leading him toward the land border office door.

126 Ms. Backman recalled that another border services officer, not the grievor, boarded the bus to inspect the passengers’ identification. Ms. Backman was unable to describe the second border services officer. Ms. Backman believes that the border services officer checked her identification after she returned from using the land border office washroom. When their voyage resumed, Ms. Backman told Mr. Tse‑Chun that the grievor had been inappropriate, as Mr. Tse‑Chun still looked frightened. Ms. Backman and others assured Mr. Tse‑Chun that they felt safe.

127 Ms. Backman recalled that she was able to talk to Ms. Hellsten but did not recall Ms. Hellsten’s precise seating position in the bus.

128 Ms. Hellsten phoned Ms. Backman to ask her to provide a statement. Ms. Hellsten stated that they were friends through their sons’ hockey team. Until the time of the incident Ms. Backman did not know that Ms. Hellsten worked for the Agency. Ms. Backman thought that Mr. Tse‑Chun was five-foot seven-inch tall and hat he weighed 170 pounds.

129 Ms. Backman thought 40 to 50 people could have been on the bus.

130 Ms. Hellsten indicated to Ms. Backman that the incident was being investigated. Ms. Backman believes that she learned that fact at the next game or via a phone call. Ms. Hellsten did not discuss the details of the investigation.

131 Ms. Backman believes that she prepared a written statement (Exhibit E‑2) on November 18, 2006. She has never worked for the Agency or in an environment where use-of-force training was required and has never been trained in the use of force. She believes that she knows what is appropriate and what is not. She did not see Mr. Tse‑Chun shake his finger at the grievor, contrary to what the grievor alleged in his statement (Exhibit E‑9, Appendix A) to Supt Ashikian.

132 Ms. Backman did not discuss her testimony with anyone other than the respondent and Supt Ashikian. Ms. Backman did not discuss her testimony with Ms. Hellsten. Ms. Backman did not believe that she ever met with Supt Ashikian in person and did not recall signing a statement. Ms. Backman could not recall when she spoke to Supt Ashikian. It is possible that Ms. Backman signed a statement.

133 Ms. Backman was not cross-examined on her testimony about the words that the grievor spoke to Mr. Tse‑Chun or the words the grievor used when speaking to her.

134 Ms. Backman clarified that her information about Mr. Tse‑Chun’s and the grievor’s weights were estimates. She estimated the grievor’s weight as 220 pounds.

3. Mr. Tse‑Chun’s testimony

a. Examination-in-chief

135 Mr. Tse‑Chun testified in Mandarin and used an interpreter. The interpreter had training from Langara College and from Simon Fraser University in advanced business interpretation. He has worked as an interpreter in trial courts and at administrative tribunals in British Columbia since 1993.

136 Mr. Tse‑Chun worked for Westcan Tour bus at the time of the hearing as a bus driver and tour guide. He has experience driving 47- and 50-seat buses. He started driving commercial buses in 1993. Mr. Tse‑Chun testified about the incident. At that time, he worked for Ocean Coach Lines Ltd. He had worked for them since 2001 or 2002. He drove in B.C. and in Washington and Oregon in the U.S. He drove 100 to 200 days per year.

137 On October 22, 2006, Mr. Tse‑Chun drove a bus with about 30 passengers, including teenage boys and adults, from Vancouver to Seattle for a hockey game. The bus left Vancouver at about 08:00 and returned to Pacific Highway Crossing between approximately 20:00 and 22:00; it was dark by then. Two or three buses were in front of his bus, and some were behind. He said that he walked to the land border office and reported the number of passengers on the bus. He went back to the bus and waited for further instructions from a border services officer and for word that it was OK to cross the border.

138 Mr. Tse‑Chun said that the grievor asked him for the E‑311 cards. Mr. Tse‑Chun did not have any E‑311 cards as that bus did not usually cross the border. Mr. Tse‑Chun said that the grievor told him that he was wasting the grievor’s time. The grievor was not happy with his time being wasted. Mr. Tse‑Chun described the grievor’s tone of voice as very loud. Mr. Tse‑Chun said that he kept quiet and said nothing. Mr. Tse‑Chun said that, had the grievor told him to stand at attention, he would have had to do it.

139 Mr. Tse‑Chun did not tell the grievor that he never heard of that “ridiculous” rule (to provide E‑311 cards), contrary to what the grievor alleged in his statement (Exhibit E‑9, Appendix A) to Supt Ashikian. Mr. Tse‑Chun indicated that passengers must fill out E‑311 cards, not drivers.

140 Mr. Tse‑Chun said that the grievor pulled or dragged him into the land border office. Mr. Tse‑Chun said that he needs reading glasses for reading and for signing papers. He does not need them to drive. Mr. Tse‑Chun said that the grievor asked him to sign a blank form that the grievor obtained from the land border office. Mr. Tse‑Chun said that he told the grievor that he could not see because it was quite dark inside the bus. Mr. Tse‑Chun said that the grievor was very unhappy, that the grievor raised his voice and that the grievor dragged Mr. Tse‑Chun into the land border office. The grievor said that he could put Mr. Tse‑Chun in jail, detain the bus and call Mr. Tse‑Chun’s boss to have him fired. Mr. Tse‑Chun said that the grievor yelled or shouted. Mr. Tse‑Chun said that, when the grievor spoke, he had to listen. Mr. Tse‑Chun kept silent, and he did not talk back. Mr. Tse‑Chun said that the grievor poked him with his finger at the bus door. Mr. Tse‑Chun said that he wanted it to be over and to just get past it. Mr. Tse‑Chun considered it a bad or unlucky day.

141 The respondent asked Mr. Tse‑Chun whether he could not see or could not read. Mr. Tse‑Chun said that the writing was very small and that it was dark in the bus.

142 Mr. Tse‑Chun said that, once off the bus, the grievor grabbed him on the shoulder as one would pick up a puppy or a dog. Mr. Tse‑Chun was asked at the hearing to demonstrate how he was grabbed. He grabbed the shoulder area of his shirt. He said that he made no inappropriate comments and that he did not say anything before being grabbed, other than that he did not have any E‑311 cards and that he could not see.

143 Mr. Tse‑Chun said that he was outside the bus when he was grabbed and pulled by his shoulder. He described being about 1 to 1.5 metres from of the bus when the grievor applied force. Mr. Tse‑Chun believes that the passengers on the bus would have seen it. He said that the grievor let go once he was inside the entrance to the land border office, about 10 to 15 metres from the bus.

144 Mr. Tse‑Chun said that he did not say anything to the grievor and that he did not resist the grievor or shake a finger in front of the grievor. Mr. Tse‑Chun said that he did not dare, not knowing what the grievor would do with the passengers.

145 Inside the land border office, the grievor told Mr. Tse‑Chun that he could detain him, put him in jail, or call Mr. Tse‑Chun’s boss and have him fired. Mr. Tse‑Chun said that he was scared to death. Other border services officers from customs were present. Mr. Tse‑Chun said that a senior female supervisor came to him, apologized and told him that he could go. Mr. Tse‑Chun did not tell Supt Anderson that he had made up his vision problems.

146 During the investigation, Mr. Tse‑Chun gave a written statement (Exhibit E‑20) to Supt Ashikian. Mr. Tse‑Chun believes that he met with Supt Ashikian four to five months after the incident. An interpreter was not present for his statement, although his wife was present and assisted. Some differences exist between Mr. Tse‑Chun’s written statement and his testimony.

147 Mr. Tse‑Chun did not file a complaint with his employer, but he was asked about the incident by his boss a week to 10 days later. Mr. Tse‑Chun said that he was told that a retired border services officer had phoned and asked about Mr. Tse‑Chun.

b. Cross-examination

148 Mr. Tse‑Chun was vigorously cross-examined. He arrived in B.C. in about 1992. He said that he had made about a thousand trips to the U.S. before the trip at issue, sometimes as a bus driver, and sometimes as a tour guide. He said that he has been asked only twice for the E‑311 cards this year as a driver or as a tour guide. He said that passengers must fill out customs declarations.

149 Mr. Tse‑Chun said that, on the day at issue, no stops were made other than for the hockey game. He did not remember stopping at any outlet malls. After hockey games, he usually heads directly back home. Sometimes he will stop if a passenger requests it, but he did not recall if a request was made on the trip at issue.

150 Mr. Tse‑Chun confirmed that the bus crossed the border into the U.S. at about 08:00. He was not sure of the precise time he arrived back at Pacific Highway Crossing. He said it was between 18:00 and 20:00. He said that it was dark and raining when he arrived. He confirmed that he went into the land border office and that he reported the arrival of his bus to a border services officer. Mr. Tse‑Chun is unsure whether he reported with a garbage bag in his hand; he could have reported and taken the garbage later. He said that the bus drivers sit below the level of the passengers.

151 The grievor boarded the bus and asked for the E‑311 cards. Mr. Tse‑Chun replied that he did not have any cards because that bus did not regularly cross the border to Seattle. Mr. Tse‑Chun did not pick up E‑311 cards. He said that the grievor instructed him to get them.

152 Mr. Tse‑Chun said that he wears reading glasses of 1.25 dioptre strength. He said that he can understand English but that he is not fluent.

153 Mr. Tse‑Chun was asked whether he knew if the grievor provided him with a declaration or instructions. Mr. Tse‑Chun replied that he was not sure. He was aware that E‑311 cards had to be filled out. He said that he was asked to sign a blank paper that had no writing on it. Mr. Tse‑Chun said that he was not sure if he had ever seen the bus‑traffic instructions (Exhibit E‑11). I note that, at the hearing, the grievor did not put the bus‑traffic instructions to Mr. Tse‑Chun. Mr. Tse‑Chun said that, when he crosses the border, he obeys border services officers’ instructions.

154 Mr. Tse‑Chun was asked why he said that he could not see. He replied that he did so because he realized that he could not see without his glasses. Before that, the grievor stated that Mr. Tse‑Chun was making trouble for him. Mr. Tse‑Chun said that, honestly, he could not see. Later on, Mr. Tse‑Chun said that the grievor said that Mr. Tse‑Chun had been driving dangerously, which is a completely different thing.

155 Mr. Tse‑Chun asked, “If someone asked you to sign a blank form, would you sign it?” He said that a police officer would read something line by line if Mr. Tse‑Chun had trouble reading or seeing it.

156 I pause to note that I understood from Mr. Tse‑Chun’s evidence that he could not see the print on the bus‑traffic instructions (Exhibit E‑11) without his glasses and that he would never sign a blank form without reading it. He said that a police officer would read a document out to him if he had trouble reading or seeing. I note that this speaks to Mr. Tse‑Chun’s basic English literacy skills.

157 Mr. Tse‑Chun was asked if he ought to be driving if he could not see. He replied that he has a physical examination every year and added that, if he were a dangerous driver, would his boss have hired him?

158 The grievor asked Mr. Tse‑Chun again if Mr. Tse‑Chun ought to be driving a bus if he could not see. Mr. Tse‑Chun replied that it is not that he cannot see but that he cannot read small letters. He asked why customs declarations forms now have larger print.

159 The grievor suggested that “cannot see” and “cannot read” are different things. Mr. Tse‑Chun said, “Did I say read or see, and why do I need an interpreter today?” Mr. Tse‑Chun said that he did not want the grievor to misunderstand. The interpreter interjected that “read,” “look” and “see” are all the same word in Mandarin and that there is no nuance in Mandarin between “reading” and “seeing” or “looking at” something.

160 The grievor asked again and Mr. Tse‑Chun confirmed that he told the grievor that he could not see. Mr. Tse‑Chun testified that he meant that the writing was too small. He said that, with the E‑311 card’s small print and the darkness in the bus, he could not read it without his glasses.

161 Supt Anderson asked Mr. Tse‑Chun to fill out and sign the E‑311 card. Mr. Tse‑Chun did not have his glasses with him. He could see the card inside the land border office, as the lights were brighter, unlike on the bus.

162 When Mr. Tse‑Chun told the grievor that he could not see, Mr. Tse‑Chun was in the bus. Mr. Tse‑Chun was told to get off the bus and to go to the land border office. There was no discussion outside the bus. When Mr. Tse‑Chun first saw a border services officer when he had the garbage, the border services officer yelled at Mr. Tse‑Chun about who told him to “do that.” The border services officer told Mr. Tse‑Chun to go back to the bus. Mr. Tse‑Chun said that he could not remember who that border services officer was. Mr. Tse‑Chun did not know at that time that border services officers do not like drivers to exit their buses, but he said that other drivers exit to smoke.

163 Mr. Tse‑Chun was asked how long he stood outside the bus before entering the land border office. He replied that he did not remember. I note that Mr. Tse‑Chun entered the land border office twice and that the grievor never specified clearly the entry of which he was speaking. Mr. Tse‑Chun said that he was dragged to the land border office. No discussion occurred outside the bus. Mr. Tse‑Chun said the following: “I cannot read, thinking that I was disrespectful. [The grievor] said get off the bus and went right inside. He pulled me into the office.”

164 At the time of the discussion about seeing or reading, Mr. Tse‑Chun was sitting in the bus driver’s seat.

165 Mr. Tse‑Chun did not know why the grievor was upset. Mr. Tse‑Chun said, “[The grievor] poked me a couple of times and you just have to listen to what he had to say. He said I was making trouble, wasting his time and I was trying to listen.” Mr. Tse‑Chun was thinking about getting his passengers home as soon as possible.

166 The grievor grabbed Mr. Tse‑Chun’s shirt and dragged him from the side. All Mr. Tse‑Chun could do was follow.

167 Mr. Tse‑Chun weighs 180 pounds and is 173 cm tall. He is not sure how his size compared to that of the grievor. Mr. Tse‑Chun confirmed that he was not hurt physically and that he had no marks or bruises, but he confirmed that he was very hurt in his heart. He said that, when he thought about how Caucasians are treated when they cross the border, he felt sad.

168 Mr. Tse‑Chun testified that he received no bruises or physical marks and that he was not injured. It was about how he felt. He did not feel that it was a big deal. He admitted that the grievor did not grab him by the neck or ear, but Mr. Tse‑Chun was handled as one would pick up a dog.

169 Mr. Tse‑Chun said that he could not see the print on the E‑311 card and that he had no intention of being disrespectful.

170 Mr. Tse‑Chun said that he possibly said inside the land border office that he could not see, but he could not read the print on the E‑311 card.

171 Mr. Tse‑Chun apologized, because if he had not, he would not have been able to leave. Supt Anderson apologized to Mr. Tse‑Chun’s passengers, but nobody apologized to Mr. Tse‑Chun. Supt Anderson’s facial expression changed, and she might have apologized to Mr. Tse‑Chun. Mr. Tse‑Chun does not remember shaking hands with the grievor inside the land border office but stated that he probably did. Mr. Tse‑Chun said that it was a very tense situation.

172 Mr. Tse‑Chun could not remember whether he was wearing a jacket, but he remembered the grievor grabbing his clothes. Mr. Tse‑Chun said that he was pulled into the land border office. Mr. Tse‑Chun demonstrated how the grievor walked beside him with a hand on Mr. Tse‑Chun’s shoulder area.

173 Mr. Tse‑Chun attended the hearing as a result of a subpoena.

174 Mr. Tse‑Chun did not shake his finger at the grievor. Mr. Tse‑Chun did not use the “F‑word.” He did not have a loud discussion with the grievor outside the bus. Mr. Tse‑Chun said that he was scared to death. He said that, when you are at a border crossing, you have to respect border services officers.

175 When Mr. Tse‑Chun is excited, he raises his voice and waves his hands. He did not make a fuss inside the land border office. He sat when asked to sit and stood when asked to stand. He made no fuss because he wanted to go home. He was inside the land border office for about 30 minutes.

176 Mr. Tse‑Chun said that he spoke with Supt Anderson just once. She apologized to the passengers and said that Mr. Tse‑Chun could go. Supt Anderson did not ask Mr. Tse‑Chun about whether he told the grievor that he could not see. Mr. Tse‑Chun did not report the incident to his boss or to the Agency as he said it was an unlucky day and that he preferred to let things pass. He said that, if someone in that situation really took it to heart, how could that person cross the border again? He said that he was scared to death. He said that the grievor did not have the right to pull him to the land border office and ask him questions.

177 Mr. Tse‑Chun said that the grievor asked him why he would drive if he could not see and that the grievor could jail Mr. Tse‑Chun. At that point, Mr. Tse‑Chun asked, “Is it not their right?”

178 Mr. Tse‑Chun was questioned as to whether he said that he could not see or could not read. He responded that the distinction was not important because border services officers have the right to take drivers into a land border office and to impound their vehicles.

179 Mr. Tse‑Chun believed that the grievor had the right to take him into an office or to jail him. Mr. Tse‑Chun did not remember any border services officer inside the land border office tell Mr. Tse‑Chun to calm down. Mr. Tse‑Chun said that he was not excited but that he was scared to death.

180 I note that, when considering Mr. Tse‑Chun’s cross-examination, I am mindful of absences with respect to certain material points. At no time was it suggested to Mr. Tse‑Chun that he played games about the E‑311 cards. The grievor did not clearly put to Mr. Tse‑Chun the grievor’s version of the events inside or outside the bus. In particular, the grievor did not directly confront Mr. Tse‑Chun with the assertion that Mr. Tse‑Chun was in front of the grievor and then turned around and waved his hands. At no time did the grievor suggest to Mr. Tse‑Chun that Mr. Tse‑Chun behaved in a threatening manner toward the grievor outside the bus before entering the land border office. I note that those are salient points in the grievor’s statement (Exhibit E‑9, Appendix A) to Supt Ashikian and in the grievor’s testimony at the hearing. I note that they are the very issues on which the Agency determined that the grievor was dishonest.

c. Re-examination

181 Mr. Tse‑Chun was asked whether he had a conversation with the grievor just before the grievor grabbed him on the shoulder. Mr. Tse‑Chun said that a conversation took place with a border services officer inside the land border office when Mr. Tse‑Chun reported and that a conversation had occurred outside the bus with the grievor who told Mr. Tse‑Chun to return to his bus with the garbage. Mr. Tse‑Chun said that a conversation with the grievor took place and that the grievor told him that Mr. Tse‑Chun was wasting time and making trouble. It lasted about 2 to 5 minutes and then another 10 seconds outside the bus.

182 I infer from this that a very short conversation took place outside the bus, during which the grievor told Mr. Tse‑Chun that Mr. Tse‑Chun was wasting his time and making trouble.

4. Supt Anderson’s testimony

a. Examination-in-chief

183 Supt Anderson has been employed by the Agency since 1995. At the time of the hearing, she was Regional Critical Incident Stress Management Coordinator. Previously, she was the traffic superintendent at Pacific Highway Crossing’s truck crossing. Her main functions were to be the superintendent on shift, to schedule border services officers and to be on duty.

184 A superintendent deals with complaints, approves enforcement and supports the shift. Supt Anderson’s team alternated its work between two border crossings. The team worked a two-week shift at Douglas Crossing and a two-week shift at Pacific Highway Crossing’s truck crossing.

185 Supt Anderson has known the grievor since he returned from training at the Agency’s Rigaud Training Centre. He began reporting to her in early 2004 as she was the assigned superintendent on Team 7, on which the grievor worked.

186 Supt Anderson was working on Sunday, October 22, 2006. She described it as a busy shift, with an increase in bus traffic due to a Seattle Seahawks football game. She first became aware of the incident when the grievor came to her office about Mr. Tse‑Chun, who had failed to have his passengers complete E‑311 cards and who had said that he could not see. The grievor told Supt Anderson that Mr. Tse‑Chun was loud and uncooperative when the grievor instructed Mr. Tse‑Chun about the bus‑traffic instructions (Exhibit E‑11). The grievor thought that Mr. Tse‑Chun had a health and safety concern. Supt Anderson told the grievor to clarify the situation as it was not normal for a person to say that he or she could not see.

187 The grievor left to speak to Mr. Tse‑Chun and returned a few minutes later. The grievor indicated that he could not fix the situation, and he asked Supt Anderson to speak to Mr. Tse‑Chun.

188 Supt Anderson went with the grievor to the immigration secondary area. She spoke to Mr. Tse‑Chun after identifying herself. She asked Mr. Tse‑Chun if he had a health issue or if he had vision problems. He replied in the negative. He appeared calm and fine. Supt Anderson informed Mr. Tse‑Chun about the bus‑traffic instructions (Exhibit E‑11) and released him. The grievor was with Supt Anderson. Supt Anderson spoke to Mr. Tse‑Chun for about a minute. Mr. Tse‑Chun was not aggressive in any way and did not make any inappropriate comments or threats. He did not shout at or challenge Supt Anderson or the grievor.

189 Supt Anderson determined that Mr. Tse‑Chun was not in danger from a health and safety point of view. She said that he apologized for causing any inconvenience. She said that she and Mr. Tse‑Chun made it clear to each other that he was free to go.

190 While Supt Anderson walked back to the office with the grievor, they discussed Mr. Tse‑Chun and the night’s events. Supt Anderson described it as venting about a busy night with strange people and that Team 7 needed to finish the shift, which was soon to end.

191 The grievor did not disclose to Supt Anderson that he used force against Mr. Tse‑Chun. Supt Anderson testified that there are procedures to follow when force is used, which includes notifying the superintendent and submitting a use-of-force report according to the Customs Enforcement Manual. Supt Anderson testified that the completed use-of-force report would come to her. She would provide it to the chief, at that time Chief Clarke, and it would be reviewed by the Agency’s use-of-force staff. Supt Anderson testified that the grievor was required to submit a use-of-force report. He did not.

192 Supt Anderson disciplined the grievor on July 28, 2006 for an excessive use-of-force incident on November 22, 2005 (Exhibit E‑4).

193 Supt Anderson became aware of the allegations made against the grievor in December 2006 when Chief Clarke asked her to prepare a statement. She prepared one (Exhibit E‑5) in mid-December 2006. Supt Ashikian contacted Supt Anderson in early 2007, and she met with him and answered his questions. Supt Ashikian showed her the notes of his questions and her answers, which she signed.

194 As a result of Chief Clarke’s request for more information, following a pre‑disciplinary meeting with the grievor, Supt Anderson prepared and sent another statement to Chief Clarke on September 16, 2007 (Exhibit E‑6). In that statement, she stated in part the following:

…

BSO Newman asked me to talk to the driver to attempt to ascertain the driver’s state of health and safety. I approached the driver; I introduced myself as the Superintendent on shift and asked if he was having problems seeing. I did not get [sic] him a chance to react one way or another. I don’t recall him being loud or argumentative with me however I don’t believe I gave him much of a chance.

…

195 Chief Clarke asked Supt Anderson to supply further information after he held a second pre-disciplinary meeting with the grievor. Supt Anderson provided a statement dated October 18, 2007 (Exhibit E‑7). She advised that one of the witnesses to the incident had identified herself as an Agency employee.

196 Supt Anderson related to the grievor on the night of the incident that one of the witnesses to the incident had identified herself as an Agency employee. The grievor expressed concern that a complaint could be made. At that time, Supt Anderson was unaware that the grievor had used force in his dealings with Mr. Tse‑Chun. Supt Anderson knew that Mr. Tse‑Chun had said that he could not see, that he did not have his passengers fill out the E‑311 cards and that he had had difficulties interacting with the grievor.

197 Supt Anderson discussed the incident with Supt Brezden before Supt Anderson knew about the use-of-force aspect of the incident. Supt Anderson did not remember much of that conversation. She did not recall telling Supt Brezden that Mr. Tse‑Chun had been difficult or agitated.

198 Supt Anderson was asked to consider the IM/IM, which deals with the behaviour of a subject or traveller and the actions of a border services officer.

199 Supt Anderson testified that, for a cooperative traveller, a border services officer’s response is limited to verbal intervention. A person is cooperative if he or she does not resist and responds to a border services officer’s instructions. The person could be angry or abusive, but if he or she responds, then that person would be considered cooperative in terms of the IM/IM.

200 For an uncooperative traveller, a border services officer’s intervention can be verbal, with his or her presence. If the traveller does not comply, Supt Anderson said that the border services officer is then justified in the use of force but that the force could be only “one step higher” in the absence of threatening behaviour.

201 Supt Anderson became familiar with the IM/IM when border services officers were given peace officer powers in about 2000 and when they became armed in 2007. She testified that she understood how it works. She stated that using force is justified if a subject is being non-cooperative and does not comply with a border services officer’s verbal intervention by not doing what the border services officer needs him or her to do. Supt Anderson testified that placing hands on a traveller’s neck would be considered a use of force.

b. Cross-examination

202 In cross-examination, Supt Anderson said that she did not recall if it was raining on the night of October 22, 2006. She was in her office when the grievor initially approached her. She shuffles frequently between the bus area and her office during her shifts. She understood that Mr. Tse‑Chun was in the bus area. She recalled that it was late afternoon, in the middle of the shift and after the end of the Seahawks game. She did not recall the precise time.

203 The Agency uses E‑311 cards to identify both travellers and how long they were out of Canada. The cards contain questions about firearms and about travelling to farms. The cards are used to help identify low-risk travellers. Children on a charter bus are low-risk travellers unless some issue comes up in conversation with the driver or on one of the E‑311 cards. Supt Anderson stated that E‑311 cards are not mandatory. The cards help facilitate crossing bus traffic. Risk is assessed based on the information on the E‑311 cards. It is in the interests of bus drivers and passengers to fill out the cards. They become mandatory when a border services officer asks for them, and the driver and passengers must fill them out. The bus‑traffic instructions (Exhibit E‑11) were used in 2006 to clear buses.

204 If a driver said that he or she had never filled out an E‑311 card, Supt Anderson would ask the driver questions about how long the driver was away, the group the driver was with, the driver’s business outside Canada, and whether stops were made. Supt Anderson would ask clarifying questions, assess the risk and possibly give the driver E‑311 cards to fill out. Supt Anderson would let the driver know the applicable procedures or tell the driver to have a good day.

205 Drivers are allowed off buses before the buses are cleared. They are not allowed to drop off garbage.

206 The grievor told Supt Anderson that Mr. Tse‑Chun said that he could not see, that Mr. Tse‑Chun did not have the passengers fill out E‑311 cards and that Mr. Tse‑Chun was being difficult.

207 Supt Anderson met with Mr. Tse‑Chun in the immigration secondary area. Supt Anderson did not recall Off. Duthie being there. The suggestion of the grievor that anticipated evidence from Off. Duthie that Mr. Tse‑Chun was being loud and uncooperative did not jog her memory.

208 Supt Anderson said that she was firm with Mr. Tse‑Chun because of the grievor’s information that Mr. Tse‑Chun had been difficult. Supt Anderson said that Mr. Tse‑Chun was taking up a lot of the grievor’s time and that both the bus and the bus area needed clearing. Supt Anderson asked Mr. Tse‑Chun pointed questions that required one or two answers to establish Mr. Tse‑Chun’s health and safety, and then Supt Anderson released Mr. Tse‑Chun.

209 When Supt Anderson dealt with Mr. Tse‑Chun, he was not being challenging or uncooperative. Mr. Tse‑Chun apologized. He did not say that he was fooling around. He said that he could see fine. In the immigration area, he apologized for creating concerns. Supt Anderson did not recall seeing the grievor shake hands with Mr. Tse‑Chun, who was walked to the door and released. Mr. Tse‑Chun did not tell Supt Anderson that the grievor had used force against him.

210 Supt Anderson was cross-examined on the Policy (Exhibit E‑3), the IM/IM and the use of force by a border services officer. Cooperative subject follow directions and give answers but can be angry and verbally abusive. If they do what is asked of them, they are still considered cooperative. Subjects become non‑cooperative when they do not comply. A non-cooperative person might raise his or her hands, refuse to clear a doorway, taunt a border services officer, or encourage others to disobey a border services officer’s request. Threatening behaviour may be completely absent.

211 Supt Anderson was asked if a subject resisting in any manner is being uncooperative. She asked for clarification. A subject is uncooperative when he or she no longer complies with what a border services officer asks. If the subject acts as he or she is supposed to, then he or she is cooperative. If the subject stops, turns and states an unwillingness to continue, verbal intervention is required. If the subject is walking and then hesitates, there can be many reasons for hesitating, and a border services officer needs to be in control, ask questions and clarify before force is used. The degree of force used depends on the circumstances. An empty-hand control allows a border services officer to put his or her hands on the subject.

212 Supt Anderson was asked if a border services officer putting his or her hands on a traveller’s clothing is the minimum that could be done. Supt Anderson replied that it would depend on the circumstances. She was asked about the least amount of force that can be considered empty-hand control. She replied that the IM/IM is set up to indicate that a border services officer must go one step higher than the resistance offered. If a subject is walking and suddenly stops, a border services officer should use verbal intervention. If a subject stops, resists control and takes steps to assault a border services officer, a border services officer is within his or her rights to use control techniques.

213 Supt Anderson was asked about the least amount of force that could be used. She replied that it would depend on what the subject had done and that it could include putting hands on the subject. Supt Anderson was asked if that was appropriate if the subject was not complying with directions. She replied in the negative and stated that it should be one step higher. She agreed that telling a bus driver to go inside the land border office was lawful. She stated that, if the bus driver hesitated, it was still cooperative behaviour. It is not considered a threat if a subject shakes a finger at a border services officer. If there is a threat, a border services officer can use hard control. If a border services officer puts his or her hands on a subject’s shoulder and tells the subject to enter an office, that is a use of force. Border services officers do not put their hands on subjects under customs examinations without reason.

214 Supt Anderson was asked if border services officers are justified using force to control people. Supt Anderson answered that it depends on what a subject has done. She said that use-of-force reports are not submitted for verbal interventions. A border services officer would not need to submit a use-of-force report if he or she guided a suspect who was going the wrong way. Supt Anderson said that giving directions by touching a misdirected bus driver is not considered a use of force.

215  When a subject becomes non-cooperative or resistant or disregards a border services officer’s verbal interventions, and the border services officer needs to use force to make the subject comply, a use-of-force report must be submitted. Supt Anderson said that a border services officer can be criminally charged for the excessive use of force.

216 Supt Anderson did not request a use-of-force report from the grievor as Supt Anderson did not know that the grievor had touched Mr. Tse‑Chun when Supt Anderson prepared her report. When Supt Anderson found out that the grievor had used force, she did not ask the grievor for a use-of-force report because by then the grievor had been assigned to the CANPASS Processing Centre, and Supt Anderson was no longer supervising the grievor.

217 Supt Anderson examines a use-of-force report and then sends it to the chief, who signs it. It then is forwarded to the use-of-force team for review. She said that debriefing may or may not occur; it depends on the seriousness of the incident and the use-of-force team’s review. She is unaware of whether the use-of-force team was consulted in this case. She said that that is the chief’s responsibility.

218 Supt Anderson said that a debriefing session is not required after a complaint is received. To the best of her understanding, a debriefing session can be held, if necessary, if a use-of-force report is submitted and if the use-of-force team decides that it is necessary.

219 Supt Anderson recalled becoming aware of the allegations against the grievor in mid‑December 2006. Supt Anderson did not take notes. She recalled the incident as it was unique because a bus driver said that he could not see when he arrived with 45 people behind him in a bus. Supt Anderson agreed that it would be a real safety concern if a bus driver could not see.

220 Supt Anderson has been involved in safety incidents at the border; for example, one time a car was going the wrong way down a road.

221 Supt Anderson did not recall speaking with Supt Brezden about an incident involving a bus driver.

222 Supt Anderson testified that, if a subject is told to enter an office but stops and turns around, it is considered non-cooperative behaviour.

223 Supt Anderson said that she is retrained frequently in the use of force. The last time was a year before the hearing.

224 Supt Anderson was standing when she spoke to Mr. Tse‑Chun about the health and safety concerns. Supt Anderson spoke to Mr. Tse‑Chun about the E‑311 cards as well as about his vision, and she was firm. Supt Anderson said that there were many charter buses that night and that a football game had finished. It was challenging.

225 Supt Anderson did not recall whether the grievor was working alone in the bus area. Supt Anderson believes that others were there as well. She did not recall requests being made for other border services officers to assist the grievor, but it would not have been unusual. Such requests can happen frequently during a shift.

226 Supt Anderson said that as many border services officers as can be spared are assigned to buses but that there are also road inspections, secondary inspections and a counter, all of which also require a border services officer. Supt Anderson said that the bus-area duties were not assigned, only road times.

227 Team 7 worked well together. Supt Anderson did not schedule a bus lane; border services officers went where they were needed, according to traffic level.

228 Supt Anderson believes that some border services officers were in the bus area all night, but she could not recall how many border services officers worked in that area on the evening of the incident. Supt Anderson did not recall who cleared the bus at issue. It was not Supt Anderson, and to the best of Supt Anderson’s recollection, the grievor did not clear the bus as the grievor walked back to the office with Supt Anderson.

229 Supt Anderson recalled that the grievor asked to access the use‑of‑force team, but Supt Anderson was not certain whether it was related to the incident. Supt Anderson said that border services officers do not usually have access to that team. She agreed that that team was for debriefing. She was asked whether that team was available to assist the grievor. Supt Anderson understood that the grievor was to complete the use-of-force report, which would be sent to the chief and to the use‑of‑force team. Possibly then a debriefing would be carried out.

230 Supt Anderson understood that, for the use-of-force team to become involved, they need all the information. Supt Anderson recalled that, for a different use-of-force complaint, the grievor sent the use-of-force team emails that they were not able to answer as they were not given all the information. Supt Anderson agreed that the use-of-force team are the use-of-force experts.

231 Supt Anderson said that the investigation’s results were provided to her.

c. Re-examination

232 Supt Anderson attended a training course called “Training the Trainees for Use of Force.” She was asked what could constitute an excessive use of force. She stated that it could include using more force than necessary in the circumstances. With a compliant subject, there is no need to use force. If a border services officer grabs a compliant subject by the back of the neck, it would be considered an excessive use of force.

233 A border services officer using force must submit a use-of-force report. It is not up to the manager to complete the report unless he or she was also involved in the use of force. If other border services officers witnessed a use of force on the evening of the incident, they had to make sure that Supt Anderson was aware, as Supt Anderson was the superintendent on duty the night in question.

5. Supt Ashikian’s testimony

a. Examination-in-chief

234 Supt Ashikian’s substantive position is as a superintendent at Vancouver International Airport. He manages the Airside and Special Enforcement Operations. He is a line superintendent, and he supervises a team of airplane search border services officers. Supt Ashikian reports to the chief of Airside Enforcement Operations. Supt Ashikian has conducted about 30 to 40 Internal Affairs investigations, including civil fraud and commercial customs infractions.

235 Supt Ashikian’s resume was filed as an exhibit (Exhibit E‑8). He has a Bachelor of Arts degree in Criminology. He has 28 years of experience with the Agency, including 10 as a border services officer, 6 as a superintendent and 8.5 as an investigator both at the regional level and as a senior investigator at the Agency’s headquarters in Ottawa. He also has two years of experience as a regional intelligence officer. He interviewed the witnesses, including Ms. Hellsten, Ms. Backman, Mr. Tse‑Chun, Supt Anderson and the grievor (Exhibit E‑9). Supt Ashikian concluded that the grievor used excessive force when dealing with Mr. Tse‑Chun.

236 Supt Ashikian interviewed eight people. Chief Clarke was identified as the complainant as he was the Pacific Highway Crossing director, although Supt Ashikian believes that Mr. Scoville initiated the investigation request, as Mr. Scoville was a director. Supt Ashikian testified that he received his mandate from the Agency, as well as the statements from Ms. Hellsten and Ms. Backman (Exhibits E‑1 and E‑2).

237 Supt Ashikian noted that he had no managerial reports, so he phoned Chief Clarke and asked for supervisor reports, managerial reports, border services officer involvement reports, videotapes, shift schedules, and notes from border services officers and management. Chief Clarke advised Supt Ashikian that he had nothing other than the statements from Ms. Hellsten and Ms. Backman (Exhibits E‑1 and E‑2) and referred Supt Ashikian to Acting Chief Bonnett.

238 Supt Ashikian requested the same information from Acting Chief Bonnett that he requested from Chief Clarke. Acting Chief Bonnett advised Supt Ashikian that Pacific Highway Crossing’s management had done no fact finding and that there were no managerial reports, supervisor reports or videotapes.

239 As it was getting close to Christmas and employees were taking leave, Supt Ashikian asked Acting Chief Bonnett to obtain reports from Supt Anderson and the border services officers. Supt Ashikian interviewed Ms. Hellsten on December 27, 2006. Supt Ashikian noted his standard approach. He reviewed Ms. Hellsten’s statement (Exhibit E‑1), made notes of areas he wished to cover and created questions about other areas. He believes that he spoke with Ms. Hellsten on December 24 to make the interview arrangements. Supt Ashikian spoke with Ms. Hellsten at her office, without an observer. Supt Ashikian identified himself and his mandate and had Ms. Hellsten sign a document called “Corporate Security and Internal Affairs Division Introduction to Investigation,” which explained the following:

• the mandate of the interviewer;
• the reasons for the interview;
• the right to bring an observer;
• the administrative nature of the investigation;
• the obligation to cooperate and assist;
• that facts were being gathered to establish whether misconduct had occurred;
• that notes would be taken that would form the basis of the investigation report (Exhibit E‑9);
• the right to read the notes and amend them for clarification before signing them;
• that the investigation report (Exhibit E‑9) would go to the appropriate vice-president and to local management;
• that there was a right to privacy but that anything said about a third party would be made available to the third party if requested; and
• that information could be included and used by management in a disciplinary process.
• A blank copy of the document was filed as Exhibit E‑10.

240 Supt Ashikian reviewed Ms. Hellsten’s statement (Exhibit E‑1), confirmed that she made it, asked whether she wanted to make changes to it, which she did not, and asked her questions about it. Supt Ashikian questioned Ms. Hellsten about some of the conversations that she overheard, about the grievor shoving the bus‑traffic instructions (Exhibit E‑11) in front of Mr. Tse‑Chun, Mr. Tse‑Chun’s inability to see, Ms. Hellsten’s opportunity to hear and observe Mr. Tse‑Chun and the grievor, the actions of both the grievor and Mr. Tse‑Chun, Ms. Hellsten’s surprise at the grievor’s persistence on the vision issue, and Ms. Hellsten’s discussions with Supt Anderson. Supt Ashikian reviewed a typed copy of his notes with Ms. Hellsten, which she signed.

241 Supt Ashikian said that he made numerous attempts to obtain reports from Pacific Highway Crossing. He received Supt Anderson’s statement of mid-December 2006 (Exhibit E‑5) in an email in early January 2007. Supt Ashikian used it to prepare for his interview of Supt Anderson.

242 Supt Ashikian next interviewed Acting Chief Bonnett to obtain Pacific Highway Crossing policy and procedure and information about the structure of Pacific Highway Crossing and its facilities. Acting Chief Bonnett commented on Ms. Hellsten’s statement (Exhibit E‑1) and Ms. Backman’s statement (Exhibit E‑2) and incidents involving the grievor. Supt Ashikian followed his standard process in the interview. Acting Chief Bonnett signed Supt Ashikian’s typed notes.

243 Supt Ashikian interviewed Supt Anderson on February 6, 2007 as she was the superintendent of the team on shift on the day of the incident and she had provided a statement in mid-December 2006 (Exhibit E‑5) describing what she recalled. Supt Ashikian had Ms. Hellsten’s statement (Exhibit E‑1), Ms. Backman’s statement (Exhibit E‑2) and Supt Anderson’s statement of mid-December 2006 with him. Supt Ashikian obtained background information about Supt Anderson and Pacific Highway Crossing, along with information about Supt Anderson’s involvement in managing border services officers, her supervision of the grievor, the bus facility process and her statement of mid-December 2006. Supt Ashikian questioned Supt Anderson about some issues, including about an unidentified border services officer. Supt Ashikian asked for the shift schedule. He was advised that it was no longer in the daily log and that there was no record of who worked the night at issue. He asked Supt Anderson about when she became aware of the first interaction with Mr. Tse‑Chun and had her expand on the issue of the grievor’s frustration. Supt Anderson said that the grievor was to come to her if he felt that he was in over his head, as per the work plan.

244 Supt Ashikian reviewed the contents of Ms. Hellsten’s statement (Exhibit E‑1) and Ms. Backman’s statement (Exhibit E‑2) with Supt Anderson. Supt Anderson advised Supt Ashikian that she was surprised and that she did not know of any physical altercation taking place on the night in question.

245 Supt Ashikian met with the grievor and his then representative, Off. Sullivan, on February 20, 2007 to confirm that the grievor was the border services officer involved in the incident and to obtain the grievor’s notes. Supt Ashikian told the grievor that it was not an investigative interview and that Supt Ashikian wished to get the grievor’s notes, had the grievor been involved in the incident. After some discussion, the grievor left the room with Off. Sullivan and later returned with a four-page typed statement (Exhibit E‑9, Appendix A), which was appended to Supt Ashikian’s report (Exhibit E‑9). The meeting lasted 20 to 40 minutes. The grievor attempted to obtain documentation about what the witnesses had said before providing his information. Supt Ashikian asked the grievor and Off. Sullivan to leave the room so that Supt Ashikian could review the grievor’s statement. When the grievor and Off. Sullivan returned, Supt Ashikian confirmed that the grievor appeared involved in the incident and that Supt Ashikian would continue his investigation, with the grievor as the respondent in the investigation. Supt Ashikian stated that the grievor’s statement was not signed on February 20, 2007 but that the grievor signed it on April 12, 2007. It was signed then as it was the date of the investigative interview.

246 Supt Ashikian stated that it was odd that he had to search for the documents; they should have been provided to him in advance. Supt Ashikian noted that the grievor and the Agency were reluctant to provide reports. Supt Ashikian should have had the reports at the beginning of his investigation.

247 Supt Ashikian located the bus company and Mr. Tse‑Chun and met with Mr. Tse‑Chun on February 21, 2007, at Mr. Tse‑Chun’s home. Mr. Tse‑Chun’s wife was present. Supt Ashikian introduced the investigation to Mr. Tse‑Chun as set out in the “Corporate Security and Internal Affairs Division Introduction to Investigation” (Exhibit E‑10). Supt Ashikian stated that Mr. Tse‑Chun had no notes and that the discussion was based on Mr. Tse‑Chun’s recollection of the incident. Supt Ashikian had prepared questions based on the statements of Ms. Hellsten’s statement (Exhibit E‑1) and Ms. Backman’s statement (Exhibit E‑2). Supt Ashikian noted that Mr. Tse‑Chun spoke in broken English with incomplete sentences but that Mr. Tse‑Chun’s comprehension was good. Supt Ashikian asked his questions. When he had enough information, he would later write down part of the record of interview. He handwrote his notes, and the pages were initialled and signed. No amendments were made. Supt Ashikian typed his notes. Mr. Tse‑Chun did not sign the typed document.

248 Supt Ashikian conducted his interview of Ms. Backman over the phone on March 23, 2007, which was convenient, given her location near Abbotsford, B.C. Ms. Backman reported that the grievor had been aggressive toward her and that the grievor had challenged her. The information that Ms. Backman provided to Supt Ashikian is contained at pages 12 and 13 of the investigation report (Exhibit E‑9). Supt Ashikian had Ms. Backman sign his typed notes the next day. Ms. Backman made some minor changes.

249 Supt Ashikian prepared for the interview with the grievor by reviewing the grievor’s statement (Exhibit E‑9, Appendix A) and the information provided by the witnesses. Supt Ashikian met with the grievor and Off. Sullivan on April 12, 2007, at 10:00 in Pacific Highway Crossing’s boardroom. Supt Ashikian went through the “Corporate Security and Internal Affairs Division Introduction to Investigation” (Exhibit E‑10). As Internal Affairs’ policy is to give 24 hours’ notice of an interview, Supt Ashikian read the document to the grievor over the phone on April 11, 2007.

250 The grievor told Supt Ashikian that the grievor wrote his statement from notes that the grievor no longer possessed. The grievor never produced his notebook and said that he had no notes related to the incident in his duty notebook.

251 Supt Ashikian clarified the grievor’s comments about Mr. Tse‑Chun being difficult and abusive. The grievor said that Mr. Tse‑Chun was laughing at him. Supt Ashikian questioned the grievor about taking hold of Mr. Tse‑Chun’s jacket. The grievor said that he held on to Mr. Tse‑Chun’s jacket for about 25 feet, to the land border office’s entry door.

252 Supt Ashikian provided the grievor with Supt Anderson’s statement of mid-December 2006 (Exhibit E‑5). The grievor indicated that Supt Anderson’s analysis of the grievor’s performance was not completely fair, but the grievor agreed that Mr. Tse‑Chun had frustrated him. The grievor’s actions were the result of his perceptions of Mr. Tse‑Chun, which were that Mr. Tse‑Chun was loud and argumentative and that Mr. Tse‑Chun was waving his hand about.

253 Supt Ashikian said that he provided the grievor with Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E-1 and E‑2) and that the grievor responded that they were the perceptions of the writers. Supt Ashikian asked why the versions of the incident provided by others were the opposite of the grievor’s and gave the grievor an opportunity to think it over. Supt Ashikian said that not much was said for a while and that the grievor eventually referred to being sidetracked by Mr. Tse‑Chun’s claim that Mr. Tse‑Chun was unable to see.

254 Supt Ashikian stated that the grievor asked to rewrite the conclusion of the grievor’s statement (Exhibit E‑9, Appendix A), which became the last page of Supt Ashikian’s report (Exhibit E‑9) and was noted as page 6 of Supt Ashikian’s handwritten notes, which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” The first five pages were also Supt Ashikian notes.

255 Supt Ashikian testified that the grievor and Off. Sullivan left the room and amended the conclusion of the grievor’s statement (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” The grievor changed a couple of words. The grievor was provided with an opportunity to review Supt Ashikian’s notes, which the grievor initialled. Supt Ashikian testified that the investigation report (Exhibit E‑9) accurately conveyed Supt Ashikian notes.

256 Supt Ashikian provided his comments about the IM/IM. He is not an expert in the use of force, but he is an experienced border services officer and investigator. He has been trained in the IM/IM a number of times, most recently in October 2008. To be certified in Control and Defensive Tactic Training, a person must take a course every three years to be able to use side arms, pepper spray and batons at border crossings. He believes that he was first trained in 1999 or 2000, when the IM/IM was introduced. He has been trained three or four times.

257 Supt Ashikian said that border services officers and supervisors use the IM/IM every day at border crossings when force is used. Supt Ashikian believes that the Royal Canadian Mounted Police (RCMP) used it first.

258 Supt Ashikian’s substantive position is as a superintendent. He has had to apply the IM/IM when he used force or when persons he supervised used force. He also gives feedback to employees on their performance, including on the use of force.

259 Supt Ashikian testified as to his understanding of the IM/IM and its application. He provided examples of an uncooperative subject. It is possible to make a subject cooperative when the subject is not listening to commands, in a stalemate situation. Combative behaviour can arise instantaneously. The behaviour can flow between different levels within the IM/IM. Verbal intervention is the appropriate tactic with a cooperative subject. Physical force can be used if the subject is not cooperative and is not listening to commands. The behaviour can flow from non-cooperative to cooperative.

260 Supt Ashikian preferred the witnesses’ versions of events to the grievor’s version. Supt Ashikian concluded that, based on the information used in the investigation, Mr. Tse‑Chun was cooperative, that the grievor did not need to use any force, and that therefore the force used was unnecessary, unreasonable and excessive. Force becomes excessive when more is used than is necessary to carry out a demand.

261 Supt Ashikian said that some violation of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), is required before a border services officer can use force. In the investigation report (Exhibit E‑9), Supt Ashikian concluded that the grievor used excessive force. Supt Ashikian said that the grievor was not enforcing any laws or regulations related to the Agency when the force was applied. The witness accounts state that Mr. Tse‑Chun was cooperative.

262 Supt Ashikian said that there was no legal need for the grievor’s use of force during the incident. Eyesight problems are not part of the Agency’s regulations. Any actions that the grievor took were related to pursuing the eyesight issues; he had no authority to act in any manner, whether or not he used force. Supt Ashikian determined that the grievor was not justified grabbing Mr. Tse‑Chun’s shoulder or the back of Mr. Tse‑Chun’s neck.

263 Supt Ashikian testified that border services officers involved in use-of-force incidents have to submit use-of-force reports within 24 hours and thata superintendent has to be informed as soon as possible.

264 Supt Ashikian spent time considering the information and preparing his report (Exhibit E‑9). He forwarded it to the Agency’s headquarters in Ottawa for a proofread. By mid-May, the report was in the hands of Supt Ashikian’s manager and was complete. Supt Ashikian’s manager passed it on to local managers and to the director general in August 2007. Supt Ashikian was satisfied with its content when he signed it.

b. Cross-examination

265 The cross-examination of Supt Ashikian was lengthy and vigorous. The topics included his training and background, the use of E‑311 cards, some alleged inconsistencies between the witnesses’ descriptions of the events and their opportunity to observe, collusion between witnesses, the delay between interviewing witnesses and preparing the investigation report (Exhibit E‑9), the availability of Supt Ashikian’s investigation notes, the application of the IM/IM, the conclusions, and the summary of facts.

266 Supt Ashikian began his career as a customs officer in June 1982 at the Vancouver International Airport. He then worked on the National Drug Enforcement Team for the Pacific Region until 1989, predominately at Vancouver International Airport but also at other border crossings, including Pacific Highway Crossing and Douglas Crossing. He sometimes acted as a superintendent. In 1990, he returned to Vancouver International Airport as a customs officer assigned to a traffic processing team. He spent most of 1991 as an acting superintendent at Vancouver International Airport. In 1992, he took a posting as a regional investigator that lasted until 2000.

267 Supt Ashikian has taken investigator training. He was a reserve constable with the Delta Police from 1981 to 1991 and had training. He had Justice Institute Training and in-house training in the use of force, including handgun training.

268 Supt Ashikian became a superintendent at Vancouver International Airport for a traffic team. He became instrumental in creating the Airside and Special Enforcement Operations at that airport.

269 In 2004, Supt Ashikian accepted an assignment at the Agency’s headquarters in Ottawa as a senior investigator with criminal investigations. In 2006, he accepted an 18-month assignment with Internal Affairs. He is now Superintendent, Airside and Special Enforcement Operations.

270 One of the topics discussed was why Supt Ashikian wrote the following in the investigation report (Exhibit E‑9, page 15):

…

e) The RESPONDENT was provided an opportunity to absorb the information and findings gathered through witness interviews before answering further to the allegation. The RESPONDENT stated that he was side tracked by the driver’s claim of not being able to see and this led him to an incident with the bus driver which was not what he had intended. The RESPONDENT requested an opportunity to rewrite the ‘conclusion’ to his written incident report. The RESPONDENT stated verbally, as well as wrote in his amended report, that he accepts full responsibility for his role in the incident. Further, he agrees that the witness accounts are a more accurate reporting of the incident.

…

271 Supt Ashikian identified that the grievor prepared page 6 of the handwritten attachment to the investigation report (Exhibit E‑9). In his report, Supt Ashikian stated that the grievor took full responsibility for the grievor’s role in the incident. Supt Ashikian said that pages 1 to 5 and possibly page 7 of his notes were missing.

272 Supt Ashikian confirmed that he would ask questions, pause and then write down the answers. He does not have a standard set of questions but prepares them based on the statements he receives.

273 Supt Ashikian said that, at the relevant time, Internal Affairs did not have a policy to tape-record investigations, but if a respondent in an investigation wished so, the interview could be recorded. Supt Ashikian recalled that Off. Sullivan asked if the meeting could be recorded. Supt Ashikian indicated that Off. Sullivan could record the meeting, on the stipulation that the Agency be provided with a transcript of the recording.

274 Supt Ashikian confirmed that his notes made during an investigation are paraphrased and are not verbatim. He indicated that he no longer has his notes. They were sent to Internal Affairs at the Agency’s headquarters in Ottawa. Supt Ashikian believes that his file material, including the record of interviews, might have been lost at the Agency’s headquarters in Ottawa sometime after he submitted his report (Exhibit E‑9).

275 Supt Ashikian refers to the definitions in the Criminal Code, R.S.C., 1985, c. C‑46, when he conducts an excessive-force investigation. This was his first excessive‑force investigation as an investigator. However, he had involvement as a manager in a previous one.

276 The Agency does not have a dedicated team to investigate excessive-force complaints. It has an Internal Affairs section, which investigates employee misconduct.

277 The Agency has a training division, which provides control and defence tactics training. The Agency has trainers in the field training border services officers.

278 Supt Ashikian testified that use-of-force reports would be sent to the superintendent in charge and then to the training division. The force used would be assessed to determine if it included approved Agency training techniques. Supt Ashikian has seen few use-of-force reports return with comments.

279 Supt Ashikian was aware that Ms. Hellsten did not see the grievor’s initial grab of Mr. Tse‑Chun and that Ms. Hellsten was seated halfway down the bus but that she saw the grievor and Mr. Tse‑Chun walking toward the land border office door. Supt Ashikian did not physically inspect the bus and determine whether Ms. Hellsten could have seen anything. Supt Ashikian inspected the land border office and understood that the bus was parked near some bushes.

280 Supt Ashikian was not provided with the photographs that the grievor tendered later in his testimony showing the land border office (Exhibit G‑2), but he inspected the area with Acting Chief Bonnett and Supt Anderson. Supt Ashikian did not recall Off. Sullivan or the grievor offering to show Supt Ashikian the site, but Supt Ashikian did not need to see it again, as he had already been there. I note that there was no testimony in this case that Off. Sullivan or the grievor offered to show Supt Ashikian the scene.

281 Supt Ashikian understood that bus passengers were not required to complete E‑311 cards. His related experience is from performing drug examinations between 1984 and 1989. He became aware through his investigation that E‑311 cards could be used to clear a bus. He understood that the grievor requested E‑311 cards from Mr. Tse‑Chun. Supt Ashikian did not know whether the bus passengers were asked to fill them out. Supt Ashikian understood from Ms. Hellsten’s information that the grievor asked Mr. Tse‑Chun for E‑311 cards.

282 Supt Ashikian understood that some border crossings have used E‑311 cards but was unaware of a national policy to use them. He considered that E‑311 cards were not required, so a request for them was not lawful or required by law. Supt Ashikian said that E‑311 cards were written into the legislation. Supt Ashikian indicated that in 2006 the requirement was to report to a customs officer. Supt Ashikian understood that requiring an E‑311 card was a local decision used to expedite the clearance of traffic.

283 Supt Ashikian received information from Acting Chief Bonnett and Supt Anderson. Supt Ashikian had a copy of the bus‑traffic instructions (Exhibit E‑11). He believed that there was a $50 exemption for a trip of less than 24 hours.

284 Supt Ashikian interviewed each person only once. He did not follow up on the discrepancy in the number of cross-border trips by Mr. Tse‑Chun, which became apparent only after Mr. Tse‑Chun gave his statement.

285 Supt Ashikian said that he confirmed that the grievor was the investigation’s respondent at the February 2007 interview when the grievor supplied his statement (Exhibit E‑9, Appendix A), as Supt Ashikian was working in the absence of incident reports, video recordings or shift schedules. Supt Ashikian wondered why the Agency did not supply the usual fact‑finding information.

286 Supt Ashikian testified that the grievor refused to provide a statement until he was shown Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2).

287 Supt Ashikian did not advise the grievor that the grievor had a right to counsel as Supt Ashikian was investigating an allegation of excessive force as an administrative matter and was not conducting a criminal investigation. Had Supt Ashikian felt that the grievor had committed a criminal act, Supt Ashikian would have suspended the investigation.

288 Supt Ashikian relied on Ms. Backman’s statement (Exhibit E‑2) in concluding that the grievor grabbed Mr. Tse‑Chun by the back of the neck.

289 Supt Ashikian testified that it is mandatory for Agency employees to participate in interviews. However, some decline, in which case they are informed that a decision will be made without their input.

290 Supt Ashikian was questioned as to whether he asked Ms. Hellsten how she could possibly have seen outside the bus from being seated halfway back. Supt Ashikian was asked about how Ms. Hellsten could have heard anything above the noise of the teenaged hockey players. Supt Ashikian said that he was told that the passengers on the bus fell silent when the grievor entered and drew attention to himself.

291 Supt Ashikian testified that the Agency failed to secure the videotape from October 22, 2006. He discussed this issue and learned from speaking to Acting Chief Bonnett and Supt Anderson that the retention time was 7 to 10 days, which expired well before Supt Ashikian launched his investigation.

292 Supt Ashikian was unable to explain why he was not provided with the shift reports, given that he asked for them. He advised that no one knew where the shift reports had gone and when they were taken. He wanted to obtain the shift schedules to determine who was working that night. He understood that there was a core team that had add-on members. The Agency did not provide Supt Ashikian with a list of border services officers on duty on October 22, 2006. Neither the grievor nor Off. Sullivan provided Supt Ashikian with the names of who worked that night.

293 Supt Ashikian was not provided with any border services officer notebooks from the evening of the incident.

294 Supt Ashikian admitted that, when a traveller reaches a border crossing, he or she is legally required to report to the attending border services officer, who then determines the traveller’s admissibility and any goods that the traveller is carrying. Supt Ashikian supposed that there was a duty to cooperate with a border services officer.

295 Supt Ashikian talked with Mr. Tse‑Chun about the E‑311 cards but did not ask Mr. Tse‑Chun if bus passengers were regularly required to fill them out.

296 Supt Ashikian’s understanding was that Chief Clarke asked Ms. Hellsten to obtain a statement from Ms. Backman.

297 Supt Ashikian did not accept the grievor’s suggestion that Ms. Hellsten was unable to see what happened during the incident. Supt Ashikian confirmed that Ms. Backman did not see the grievor’s initial grab of Mr. Tse‑Chun. Supt Ashikian did not note that Mr. Tse‑Chun talked with his hands. Supt Ashikian did not conclude that Mr. Tse‑Chun and the grievor had discussions outside the bus. Supt Ashikian did not identify how much time passed after Mr. Tse‑Chun and the grievor left the bus and the passengers became excited that the grievor had his hand on Mr. Tse‑Chun.

298 Supt Ashikian thought that he had been dealing with a smaller Asian man. If Mr. Tse‑Chun were five-foot eight-inch tall and weighed 180 pounds, as suggested by the grievor, then Mr. Tse‑Chun had put on weight. Supt Ashikian did not accept the suggestions of the grievor.

299 Supt Ashikian said that the February 20, 2007 meeting with the grievor was held to determine whether the grievor was the border services officer involved in the incident, as identified by Chief Clarke and Supt Anderson. Supt Ashikian wished to ask the grievor for a statement, as Supt Ashikian had not received one from the grievor and Supt Ashikian understood that the grievor had resisted providing one. At the meeting, Supt Ashikian did not ask the grievor for his side of the story; Supt Ashikian wanted reports made or notes taken the day of the incident to establish the grievor’s identity. The Agency did not process that request.

300 Supt Ashikian questioned Ms. Hellsten about the delay in providing her statement (Exhibit E‑1). Supt Ashikian recalled that Ms. Hellsten told him that she knew that Supt Anderson recognized her as an Agency director and that Ms. Hellsten believed that the incident was being investigated. Apparently, Ms. Hellsten contacted Chief Clarke to determine if she could help.

301 Supt Ashikian has taken all the use-of-force training courses except the “train‑the-trainer” course. He has additional manager training and responsibilities over and above the grievor’s training.

302 Supt Ashikian believes that the IM/IM came from the RCMP and that it became part of the Agency’s enforcement policy in approximately 2000.

303 Supt Ashikian did not agree that the grievor asking for E‑311 cards was verbal intervention in a use-of-force situation. Supt Ashikian said that, hypothetically, if a bus driver said that he or she did not give a passenger an E‑311 card, the driver would still be considered cooperative. If the driver did not understand that E‑311 cards were required and said that they were not required, the driver would still be cooperative.

304 It would have been appropriate had the grievor asked Mr. Tse‑Chun to leave the bus for a discussion. Supt Ashikian said that Mr. Tse‑Chun was asked to go to the land border office because of an eyesight or reading issue and not because of an E‑311‑card issue.

305 Supt Ashikian did not agree that Mr. Tse‑Chun was uncooperative just because Mr. Tse‑Chun said that he could not read the material given to him. Supt Ashikian asked Acting Chief Bonnett about the bus‑traffic instructions (Exhibit E‑11) and was told that they had been generated locally. Supt Ashikian said that policy is made at the Agency’s headquarters in Ottawa. He was not aware of any bar to using E‑311 cards.

306 Supt Ashikian testified that Mr. Tse‑Chun did not want to be involved in the investigation.

307 Supt Ashikian was not aware of any allegation by Ms. Backman before Ms. Hellsten’s involvement. Chief Clarke initiated the investigation through Mr. Scoville. Ms. Hellsten followed up and tried to press the file forward. Initially, Supt Ashikian did not ask what Chief Clarke was doing to handle the situation before Supt Ashikian commenced the investigation. Supt Ashikian later determined that statements had been obtained.

308 Supt Ashikian was cross-examined about the bus‑traffic instructions (Exhibit E‑11). To him, their wording appeared to give border services officers the discretion to request E‑311 cards.

309 Supt Ashikian admitted that travellers are required to answer a border services officer’s inquiries and to cooperate to the extent required by law. Supt Ashikian considered it unlawful for the grievor to ask Mr. Tse‑Chun to leave the bus as the grievor was not pursuing any lawful inquiry of the Agency but was dealing with Mr. Tse‑Chun’s vision and sight. The grievor’s primary duty was to clear the passengers, but the grievor did not do that.

310 The bus‑traffic instructions (Exhibit E‑11) have nothing to do with border services officers; they are addressed to bus drivers.

311 If a bus driver does not provide E‑311 cards to the passengers, then a border services officer has to proceed with a verbal primary inspection about the admissibility of goods into Canada. That could be as simple as asking the passengers whether they purchased anything and if they are all Canadian citizens. Supt Ashikian obtained that information from Acting Chief Bonnett and Supt Anderson. Supt Ashikian said that E‑311 cards are not required at land crossings.

312 Supt Ashikian said that the legality of a border services officer’s request to accompany him or her into a land border office depends on the purpose of the request and whether he or she is acting within his or her powers and delegated authorities under the Customs Act.

313 Supt Ashikian agreed that individuals must report and declare goods as required by the minister responsible for customs.

314 Supt Ashikian confirmed that he received his mandate on December 12, 2006 and that the file was completed on August 17, 2007. He completed his investigation with the conclusion of the grievor’s interview. Supt Ashikian then took time to write his report (Exhibit E‑9). Supt Ashikian submitted the report in early May 2007. His manager proofread it, and there might have been one or more rewrites before it went to the director. The changes were grammatical or clerical, and one paragraph in the summary was changed. Supt Ashikian was not asked to change the conclusion. Once the report was complete, Supt Ashikian signed and faxed back the signature page, and the report was assembled. He and his director were satisfied with the report.

315 Supt Ashikian did not consider excessive the time taken for the investigation. He was on vacation at times, and it was not his sole investigation. He believes that it was completed in an average amount of time.

316 Supt Ashikian’s following comments at page 15 of his report (Exhibit E‑9) arose from the grievor’s statement (Exhibit E‑9, Appendix A) during the interview and from the change to the conclusion in the grievor’s statement (Exhibit E‑9, page 6):

…

e) The RESPONDENT was provided an opportunity to absorb the information and findings gathered through witness interviews before answering further to the allegation. The RESPONDENT stated that he was side tracked by the driver’s claim of not being able to see and this led him to an incident with the bus driver which was not what he had intended. The RESPONDENT requested an opportunity to rewrite the ‘conclusion’ to his written incident report. The RESPONDENT stated verbally, as well as wrote in his amended report, that he accepts full responsibility for his role in the incident. Further, he agrees that the witness accounts are a more accurate reporting of the incident.

…

The written conclusion does not mention full responsibility, only the grievor’s responsibility for the grievor’s role in the incident.

317 Supt Ashikian was asked whether the grievor volunteered the change to the conclusion in the grievor’s statement (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” Supt Ashikian said that there were discussions about the grievor’s statement (Exhibit E‑9, Appendix A), from which it arose that, if the grievor wished to rewrite his conclusion, he could. Supt Ashikian did not suggest that the Agency would treat the matter differently if the grievor rewrote the conclusion. Supt Ashikian denied coercing the grievor to change his conclusion. Supt Ashikian said that he does not pressure anybody. He congratulated the grievor on taking responsibility.

318 Supt Ashikian did not discuss his report (Exhibit E‑9) with Mr. Delgaty, Chief Clarke or the grievor after it was written. Supt Ashikian said that, once a report is completed, everything is in to management’s hands, and Internal Affairs is not informed of any result.

319 Supt Ashikian was not asked whether the grievor was untruthful in his interview. Supt Ashikian said that the grievor cooperated but that a delay occurred in obtaining his statement (Exhibit E‑9, Appendix A) and the grievor did not provide notes despite Supt Ashikian’s encouragement. Supt Ashikian was not aware of whether the grievor was on leave at the time of his investigation and that the grievor had returned from paternity leave not long before his interview.

320 Supt Ashikian has experience with clearing a bus at the border. His view was that it is not an offence to leave a bus unless a primary inspection is underway. Mr. Tse‑Chun took the opportunity to dump garbage from inside the bus. Supt Ashikian asked why that would be prohibited since the Agency provides a garbage can and the bus had not reached the primary-inspection lane.

321 The grievor suggested that three different versions of the incident exist and asked how Supt Ashikian determined which was accurate. Supt Ashikian replied that he had four versions and that he did not choose one over the other because three were very similar in content. It was clear that neither Ms. Hellsten nor Ms. Backman saw the grievor grab Mr. Tse‑Chun by the neck or shirt collar. Supt Ashikian said that one witness said that Mr. Tse‑Chun was grabbed by the neck and that others said that Mr. Tse‑Chun was grabbed by the shoulder. Supt Ashikian reached his conclusion by considering all the witness statements and his interviews.

322 Supt Ashikian determined that it would not be in the best interests of the Agency to talk to the children on the bus as he had the statements of two adults.

323 Supt Ashikian said that he understood that the excitement of the bus passengers caused Ms. Backman to look outside.

324 Supt Ashikian did not question Ms. Hellsten or Ms. Backman again after he spoke to the grievor about discrepancies between Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2) and the grievor’s (Exhibit E‑9, Appendix A).

325 Supt Ashikian denied telling the grievor and Off. Sullivan that he does not question directors. Supt Ashikian said that he does not challenge witnesses about their statements. He asks questions. Management needs to hear the details of every story. He said that a respondent in an investigation should be able to answer to the allegations and that witnesses are independent.

326 Supt Ashikian recalled that the grievor referred in his statement (Exhibit E‑9, Appendix A) to feeling threatened. The grievor did not make the same comment during questioning. Supt Ashikian said that he had no reason to disbelieve the grievor.

327 Supt Ashikian was asked whether it was standard procedure to take a driver off a bus and whether it was tactical repositioning. Supt Ashikian stated that it was not a use-of-force situation. The grievor and Mr. Tse‑Chun were in what should have been a primary interview situation. They were discussing matters not of interest to the Agency. Tactical repositioning was not required.

328 Supt Ashikian did not refer to the Customs Enforcement Manual, the Customs Act or the Criminal Code when determining whether excessive force was used.

329 Supt Ashikian was asked if border services officers must be aware of health and safety concerns. He replied in the affirmative, that it is not border services officers’ primary or secondary duty to act on health and safety concerns, but it is an added responsibility.

330 Supt Ashikian used his knowledge of the Agency’s policies and procedures when reaching his conclusion. He stated that passengers generally report at a primary inspection area. The grievor was responsible for conducting a primary inspection when he asked for the E‑311 cards; he never reached the point of finality. He became sidetracked and did not perform the function of clearing the passengers. Another border services officer had to clear the bus passengers. Supt Ashikian did not interview that second border services officer as Supt Anderson was not aware of whom she had directed to that task.

331 Supt Ashikian explained that it was unnecessary for him to consider Criminal Code definitions, as the incident was a civil matter. He determined that force was used and that it was excessive because none was required in the situation. He indicated that common terms were used and that elements of a criminal offence were not present.

332 Supt Ashikian said that border services officers have to be professional and neutral to events. A border services officer must not insert his or her feelings into the IM/IM. Mr. Tse‑Chun was cooperative. If anything happened outside, it was in response to the grievor’s actions.

333 Supt Ashikian said that it was not lawful to ask Mr. Tse‑Chun to leave the bus to deal with an eyesight issue when the grievor’s primary responsibility was to clear the passengers.

334 Supt Ashikian said that it is not Agency policy to drag a person to a back room if difficulty occurs. He said that a border services officer must not diffuse his or her own aggravations and heightened level of stress when the subject is cooperative. Supt Ashikian said that a border services officer’s aggression is not added to the equation. When analyzing a situation, a border services officer is expected to be professional.

c. Re-examination

335 Supt Ashikian was asked whether witness discrepancies about whether the grievor grabbed Mr. Tse‑Chun’s neck or shoulders were significant to his conclusions. Supt Ashikian testified that they were not as the witnesses agreed that force was applied to Mr. Tse‑Chun.

6. Chief Clarke’s testimony

a. Examination-in-chief

336 Chief Clarke is now Manager, Regional Training and Learning, and has been since November 2007. In October 2006, he was Acting Director of the Pacific Highway District and remained so until April 2007. His main responsibility as acting director was to oversee the running of the Pacific Highway District border crossings and approximately 350 employees. Five chiefs reported to him. He reported to Mr. Delgaty.

337 Supt Anderson brought the incident to Chief Clarke’s attention. Chief Clarke stated that Supt Anderson did not go into detail. Supt Anderson and her chief, Acting Chief Bonnett, would have handled any follow-up with the grievor. Ms. Hellsten described to Chief Clarke the bus clearance incident and mentioned Mr. Tse‑Chun being taken off the bus and an issue of a completion of E‑311 cards. The aggressive nature and professional conduct of the grievor was at issue.

338 Chief Clarke said that he was shocked to hear of it and asked Ms. Hellsten to prepare a written statement. He asked that any others who witnessed the incident also provide statements.

339 On November 20, 2006, Chief Clarke received an email from Ms. Hellsten that had her statement (Exhibit E‑1) attached along with that of Ms. Backman (Exhibit E‑2). After reviewing the statements, Chief Clarke had significant concerns about the allegations. The statements did not name the grievor, but Chief Clarke concluded that it was likely the grievor because of Chief Clarke’s previous conversation with Supt Anderson. On November 22, 2006, Chief Clarke brought the serious allegations of misconduct against the grievor, including the use of force, to the attention of Mr. Scoville, and Chief Clarke requested an internal investigation of the grievor’s conduct.

340 On November 24, 2006, Chief Clarke met with the grievor and informed him that allegations had been raised about his conduct, that there would be an Internal Affairs review and effective immediately the grievor would report to the CANPASS Processing Centre as a risk assessment border services officer (Exhibit E‑12). The grievor was upset by the news.

341 The CANPASS Processing Centre is located at Pacific Highway Crossing. The grievor did not work in an enforcement capacity, clearing people and goods; he was in an administrative position. At the CANPASS Processing Centre, the grievor conducted investigations and made determinations as to whether an applicant was eligible to be admitted to the CANPASS program. Most of the work was done via database checks and maybe some conversations, but there were limited face-to-face interactions. Chief Clarke posted the grievor there as a result of the allegations arising from the incident. Chief Clarke was also aware of earlier complaints against the grievor.

342 In mid- to late December 2006, Supt Ashikian contacted Chief Clarke and informed Chief Clarke that Supt Ashikian was the assigned investigator. Supt Ashikian advised that he would require a report or account from Supt Anderson, through Acting Chief Bonnett. The purpose was to identify the persons who were on duty on the night of the incident.

343 Once Supt Ashikian was appointed to investigate the incident, Chief Clarke had no involvement in the investigation until receipt of the investigation report (Exhibit E‑9) in September 2007 from Ms. Stewart. Chief Clarke received the report with its Appendix A, which included the grievor’s handwritten note (at page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” Chief Clarke reviewed the report and had concerns about the findings and the grievor’s honesty during the investigation. Chief Clarke contacted Bob Hepplewhite, a labour relations advisor with the Agency, to discuss the findings and to determine the next steps, given the finding of an excessive use of force by the grievor and the discrepancy between the grievor’s account and those of the witnesses.

344 Chief Clarke testified as to his concerns about the differences between the witnesses’ and the grievor’s accounts and why Chief Clarke chose to investigate the grievor’s truthfulness. Chief Clarke was concerned about the following:

• the grievor’s statement (Exhibit E‑9, Appendix A) that he was calm and professional and that Mr. Tse‑Chun was difficult;
• Mr. Tse‑Chun’s statement (Exhibit E‑20) that the grievor yelled at Mr. Tse‑Chun and shoved Mr. Tse‑Chun, as well as Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2) that Mr. Tse‑Chun was calm and that the grievor raised his voice, asked Mr. Tse‑Chun questions quickly without giving Mr. Tse‑Chun a chance to answer, lectured Mr. Tse‑Chun in a condescending tone and shoved the bus‑traffic instructions (Exhibit E‑11) at Mr. Tse‑Chun;
• Mr. Tse‑Chun apparently argued with the grievor and stated that Mr. Tse‑Chun had never heard of that “ridiculous” rule (to produce E‑311 cards), but the witnesses stated that they had never had to fill out those cards before that day;
• the grievor’s statement that Mr. Tse‑Chun was argumentative, irascible and hot tempered;
• the vision issues, which were that Mr. Tse‑Chun stated that he could not read while the grievor stated that Mr. Tse‑Chun could not see;
• the witnesses stated that Mr. Tse‑Chun did not change his comportment but that the grievor waved his finger and yelled, but the grievor stated that the grievor tried to de‑escalate Mr. Tse‑Chun;
• the grievor portrayed Mr. Tse‑Chun as uncooperative but the witnesses did not, so the grievor’s portrayal seemed an exaggeration;
• the grievor stated that Mr. Tse‑Chun was abusive and loud, which the passengers did not observe;
• the grievor stated that Mr. Tse‑Chun became increasingly aggressive, but the witnesses were shocked that the grievor grabbed Mr. Tse‑Chun by the jacket in the neck area and shoved Mr. Tse‑Chun forward;
• the grievor portrayed himself as calm, but witnesses portrayed him as having a confrontational, bullying demeanour; and
• the grievor characterized Mr. Tse‑Chun as difficult, but the grievor was concerned that Supt Anderson did not observe Mr. Tse‑Chun that way and stated that Mr. Tse‑Chun was not loud or argumentative.

345 Chief Clarke investigated the discrepancies between the grievor’s statement (Exhibit E‑9, Appendix A) to Supt Ashikian and those of the witnesses. Chief Clarke asked Supt Anderson for a more detailed statement. Chief Clarke received Supt Anderson’s further statement of September 16, 2007 (Exhibit E‑6).

346 On September 20, 2007, Chief Clarke emailed the grievor (Exhibit E‑13), advising the grievor to attend a pre-disciplinary meeting on September 24, 2007 with a bargaining agent representative of the grievor’s choice. The email notes the following:

…

The meeting is being held to provide you an opportunity to review the results of the Internal Affairs Investigation into an allegation that you used excessive force escorting a bus driver from the charter bus parking area at the Pacific Highway crossing, into the POE bus facility office on October 22, 2006. This meeting will also provide you with an opportunity to make any additional comments. Also, this is to inform you that as a result of the Internal Affairs Investigation an allegation that you have not been truthful during the investigation has arisen. This pre-disciplinary meeting will allow yourself an opportunity to provide comments in relation to this allegation as well.

…

347 At the meeting, Chief Clarke and Supt Shawn Saran were present on behalf of the Agency, as well as the grievor and Off. Sullivan. The grievor reiterated that he had no intention to lie or mislead and that everything was a matter of perception. He said that Mr. Tse‑Chun was not calm during the incident, that Mr. Tse‑Chun was uncooperative, difficult and angry, and that Mr. Tse‑Chun was shouting and waving his arm.

348 The grievor provided the same information as he provided during the investigation. He raised concerns about the investigation and the absence of five pages of handwritten notes. Chief Clarke said that he would follow up.

349 As a result of the pre-disciplinary meeting of September 24, 2007, Chief Clarke asked for further information from Supt Anderson, who then provided a further statement on October 18, 2007 (Exhibit E‑7).

350 As a follow-up to the meeting with the grievor, Chief Clarke asked Supt Ashikian about the five handwritten pages missing from the investigation report (Exhibit E‑9). Supt Ashikian advised Chief Clarke that they were the notes that Supt Ashikian took during the interview with the grievor and that they formed the basis of the investigation report.

351 Chief Clarke met with the grievor and Off. Sullivan on October 16, 2007, after receiving the further information from Supt Anderson and Supt Ashikian. Chief Clarke conveyed Supt Ashikian’s information that the pages missing from the investigation report (Exhibit E‑9) formed part of the report and Supt Anderson’s information that Mr. Tse‑Chun was not confrontational in her presence. The grievor made no changes to his statement (Exhibit 9, Appendix A) to Supt Ashikian.

352 Following the meeting, the grievor emailed Chief Clarke on October 16, 2007 (Exhibit E‑14) and advised that he believed that Supt Brezden had information. Chief Clarke received an email from Supt Brezden dated October 24, 2007 (Exhibit E‑15) and an undated statement by Supt Brezden (Exhibit E‑16). The information clearly indicated that Supt Brezden was not on duty and that he did not witness any of the events at issue. The gist of the further information was that Supt Anderson told Supt Brezden within a few days of the incident that Mr. Tse‑Chun had been difficult and that Supt Anderson had had to calm Mr. Tse‑Chun down. Interestingly, the email of October 24, 2007 from Supt Brezden and the undated statement from Supt Brezden do not describe a use-of-force incident on the grievor’s part.

353 Chief Clarke met again with Supt Anderson about information the grievor provided and that Chief Clarke had obtained from Supt Brezden. Supt Anderson indicated to Chief Clarke that it was not unusual to joke about a passenger’s behaviour after an incident.

354 Chief Clarke determined that the grievor had been untruthful in the investigation as the grievor’s account of events differed markedly from the witnesses’ accounts. The grievor had used force and did not document it, contrary to what was required. Chief Clarke testified that he believed that the grievor created a story that Mr. Tse‑Chun was threatening, abusive, difficult and confrontational to support the actions that the grievor took against Mr. Tse‑Chun.

355 The information and documents that Chief Clarke used to determine that the grievor was untruthful included Supt Anderson’s statement of October 18, 2007 (Exhibit E‑7), an email from the grievor of October 16, 2007 (Exhibit E-14), Supt Brezden’s email of October 24, 2007 (Exhibit E‑15) and Supt Brezden’s undated statement (Exhibit E‑16), along with others. Chief Clarke had discussions with Mr. Hepplewhite and concluded that the discipline to impose was to be for the excessive use of force and for untruthfulness during the investigation.

356 Chief Clarke notified the grievor by email (Exhibit E‑17) that the grievor was required to attend a disciplinary meeting on October 26, 2007 about the disciplinary decision. Chief Clarke did not attend that meeting.

b. Cross-examination

357 Ms. Hellsten raised the issue of the problematic bus clearance with Chief Clarke before she filed her statement (Exhibit E‑1) with him. Chief Clarke stated that, in their conversation of November 3, 2006, Chief Clarke told Ms. Hellsten that he was aware of an interaction between a border services officer and a bus driver but that Chief Clarke did not have the details. Chief Clarke asked Ms. Hellsten to provide a statement. Chief Clarke said that he was shocked enough when he heard about the incident from Ms. Hellsten to ask her to write a statement. He was not aware of many of the circumstances until he received Ms. Hellsten’s statement.

358 Chief Clarke considered the matter serious enough to launch the investigation after receiving Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2) and becoming aware of the full magnitude of the allegations. Chief Clarke forwarded the statements to Acting Chief Bonnett and Eva Ann MacIntyre, Administrative Superintendent at Pacific Highway Crossing. Chief Clarke also spoke to Mr. Scoville about launching an investigation.

359 Chief Clarke left the details of the investigation to Supt Ashikian — including questioning all the witnesses — as that is how investigations operate.

360 Chief Clarke was questioned about his name appearing as the complainant. He did not file a written complaint. He raised the issue with Mr. Scoville, which is why Chief Clarke is noted as the complainant on the investigation report (Exhibit E‑9).

361 Chief Clarke was not surprised that Mr. Tse‑Chun did not file a complaint. It does not mean that the incident or that unacceptable behaviour did not occur. Chief Clarke explained that, at ground level, people worry and are concerned about making waves.

362 Chief Clarke was asked why a use-of-force expert was not brought in. He advised that the grievor did not submit a use-of-force report and that the Agency was dealing with the investigation of a border services officer conduct issue. It is up to the border services officer to submit the use-of-force report to the superintendent in charge, who sends it to his or her chief. Supt Anderson was not aware of any use-of-force allegation until Supt Ashikian notified her of it.

363 Chief Clarke stated that Supt Ashikian never asked him for reports, shift schedules or videotape. Chief Clarke stated that, ordinarily, such a request would be made to the chief of the border crossing.

364  Chief Clarke was not aware how long video recordings are retained, as different systems have been used over time, with different retention times for different systems. He was not certain of the storage capacity of the recording system at the time of the incident; he thought that perhaps it was 30 days.

365 Chief Clarke spoke to Ms. Hellsten and asked her to file a statement on about November 3, 2006. Chief Clarke received Ms. Hellsten’s statement (Exhibit E‑1) on November 20, 2006.

366 Chief Clarke did not think about securing the videotapes for October 22, 2006, which might still have been available. Chief Clarke thought that the shift schedules would have been preserved for a long time. He does not see shift schedules in his job. He conceded that surveillance video would have been useful had it been available. Chief Clarke did not take steps to secure any evidence, including surveillance video or shift schedules.

367 Chief Clarke relied on the investigation report (Exhibit E‑9) when reaching his conclusions. He never provided the five pages of notes to the grievor although Supt Ashikian indicated to Chief Clarke that those pages formed the basis of the report. Chief Clarke considered Supt Ashikian’s explanation reasonable as Chief Clarke is comfortable with the process and reports are composed from notes. However, nothing in the report’s Appendix A corresponds to paragraph 12(e) on page 15, which reads as follows:

…

e) The RESPONDENT was provided an opportunity to absorb the information and findings gathered through witness interviews before answering further to the allegation. The RESPONDENT stated that he was side tracked by the driver’s claim of not being able to see and this led him to an incident with the bus driver which was not what he had intended. The RESPONDENT requested an opportunity to rewrite the ‘conclusion’ to his written incident report. The RESPONDENT stated verbally, as well as wrote in his amended report, that he accepts full responsibility for his role in the incident. Further, he agrees that the witness accounts are a more accurate reporting of the incident.

…

368 Chief Clarke did not request an Internal Affairs investigation into truthfulness as the investigation report (Exhibit E‑9) contained information about what occurred in the incident. He felt that the information supporting an allegation of untruthfulness was contained in the investigation report. He felt no need to obtain Supt Ashikian’s notes of the interviews or to talk to any of the witnesses. Chief Clarke based his decision that the grievor was untruthful on the totality of the information available to him.

369 Chief Clarke indicated that the Agency was concerned that force was used and that the legitimacy of that force did not turn on whether the grievor grabbed the back of Mr. Tse‑Chun’s neck, collar or shoulder. Chief Clarke did not see that as a dramatic inconsistency, as people’s accounts of the shocking situation would have been difficult to process. Chief Clarke considered that the essence of the statements of Ms. Backman (Exhibit E‑2), Ms. Hellsten (Exhibit E‑1) and Mr. Tse‑Chun (Exhibit E‑20) were similar.

370 Chief Clarke confirmed that he and Supt Saran met with the grievor on September 24 and October 16, 2007. Chief Clarke followed up on concerns raised by the grievor about Supt Anderson’s information. Chief Clarke spoke to Supt Anderson on October 1 and received further information on October 18.

371 As for the conversation between Supt Brezden and Supt Anderson, Chief Clarke said that superintendents generally do not get into the specifics or details of concerns about a border services officer’s conduct with co-workers because of privacy issues. Chief Clarke also indicated that it apparently was a busy night, that an Agency director witnessed a border services officer conduct issue and that frustration occurred during a protracted interaction with Mr. Tse‑Chun over E‑311 cards not being completed. Chief Clarke indicated that Supt Brezden’s comments did not significantly impact Chief Clarke’s determination as to what occurred.

372 Chief Clarke testified that, when a use-of-force report is submitted, it goes to the training centre and is analyzed. Border services officers do not have full access to use-of-force trainers. If the trainers at the centre require more information, the report is sent back. Most of the time, the communication goes through the management structure.

373 Chief Clarke has had use-of-force training. Due to an injury, his certification has lapsed.

374 Border services officers are required to use many different methods to assess abilities, intent and means when assessing risk under the IM/IM. It is not simply using force. When dealing with an upset and angry subject, border services officers can use communication and reasonable steps to create distance and can warn the subject of the possibility of being placed under arrest. The force used should be the minimum required to obtain compliance. The Agency expects border services officers to communicate and to defuse situations. Chief Clarke said that grabbing a jacket might fall into the soft empty-hand category and might be a first step if force is necessary.

375 Chief Clarke was aware that the grievor said that Mr. Tse‑Chun was not cooperative and that Mr. Tse‑Chun turned toward the grievor when the grievor and Mr. Tse‑Chun were outside the bus. Chief Clarke did not believe or accept the grievor’s version of events and relied on Ms. Hellsten’s, Ms. Backman’s and Mr. Tse‑Chun’s versions, as provided through the investigation. Chief Clarke said that he went through the witnesses’ statements and that he reached the same conclusion as did Supt Ashikian.

376 The grievor suggested that his perception of the incident differed from the witnesses’ statements. Chief Clarke said that perception differences were possible, but the grievor was asked to provide a statement, and Chief Clarke expected that any differences would be narrow and not significant, if it came down to a matter of interpretation.

377 The Agency expects its border services officers’ accounts of incidents, as law enforcement officers, to be truthful, honest and accurate. Sometimes, border services officers claim that their accounts are their perceptions of the events that occurred, but the accounts are not truthful.

378 In this case, the grievor’s use of force was not reported by the grievor. He was under a work plan that required him to report any incident involving an enforcement action, to not lecture or intimidate people during enforcement, to provide a detailed account of any incident to Supt Anderson, and to request assistance. The incident occurred during a routine bus clearance. Supt Anderson was not aware of the full circumstances of the incident, and the grievor should have had the skills and the competency to work as a border services officer.

379 The grievor suggested that he brought the situation to the attention of Supt Anderson and that Supt Anderson did nothing other than direct the grievor to deal with it himself. Chief Clarke understood that there was a dialogue between Supt Anderson and the grievor.

380 Chief Clarke stated that the Agency was concerned about the grievor getting involved in situations that could spin out of control. Part of the process the grievor was to use was to remove himself from a situation, converse with someone else and settle down.

381 Chief Clarke saw a distinction between Mr. Tse‑Chun not being able to see and not being able to read. However, viewing the incident as a whole, Chief Clarke indicated that Mr. Tse‑Chun apparently navigated from Seattle without issue and that the grievor asked Mr. Tse‑Chun to read a document in the bus on a rainy night.

382 Chief Clarke saw the bus‑traffic instructions (Exhibit E‑11) as a relatively complex document for a person to read in an enforcement situation with a border services officer hovering. Chief Clarke said that the incident involved a 50-year-old person who required reading glasses in a situation of intimidation and stress. Chief Clarke stated that the grievor had to understand how the grievor was affecting Mr. Tse‑Chun. It would have been stressful. The bus‑traffic instructions did not have fine print, but it contained many words for someone with difficulty reading to understand, and it was in English.

383 Chief Clarke said that he noted the discrepancy between Ms. Hellsten’s statement (Exhibit E‑1) and Mr. Tse‑Chun’s statement (Exhibit E‑20) with respect to the number of trips Mr. Tse‑Chun had previously taken across the border. Chief Clarke did not think it a significant issue.

384 Border services officers use discretion with charter buses as to whether to use the E‑311 cards. Chief Clarke did not believe that it was a significant enough issue with respect to what was being dealt with. A border services officer is in control of a clearance, not a driver. A border services officer can request E‑311 cards. The grievor could have asked Mr. Tse‑Chun to hand out the cards and to have the passengers fill them out, and the grievor could have returned for them. If Mr. Tse‑Chun was unclear as to whether E‑311 cards were required, the grievor could have informed Mr. Tse‑Chun that it was a requirement and handed them out for the passengers to complete. It would not have been usual to give such instructions. There should have been a dialogue. Chief Clarke said that drivers get confused when some border services officers do not ask them to complete the E‑311 cards and others do. The point is to secure cooperation. The grievor’s manner of retrieving the E‑311 cards was at issue, not obtaining them. Instead of putting of the bus‑traffic instructions (Exhibit E‑11) in front of Mr. Tse‑Chun and telling him to read them, the grievor should have explained the requirement and provided the document in support. Handing over a form is not complete communication. To set the expectation, there should have been dialogue.

385 The grievor’s methods might not have been the best way to communicate the information. Chief Clarke did not see it as a lack of cooperation on Mr. Tse‑Chun’s part; it appears that confusion erupted as to Mr. Tse‑Chun’s understanding. Latitude exists in discretion, and many border services officers would not have used the E‑311 card but a verbal declaration, given that it was a busy night, that buses were backed up and that a bus with a Bantam hockey team and parents is a low-risk situation. Border services officers have to assess risk.

386 Chief Clarke did not see the bus‑traffic instructions (Exhibit E‑11) as a direction to border services officers. Border services officers use their judgment as to whether E‑311 cards need to be completed. The bus‑traffic instructions are a backup document.

387 Chief Clarke said that border services officers have the discretion to ask bus drivers to disembark for discussions. It was also within the grievor’s discretion to ask Mr. Tse‑Chun to enter the land border office for a discussion. That discretion is included within a traveller’s obligation to report under the Customs Act.

388 Chief Clarke said that a subject who walks in front of a border services officer and then turns around would not merit any force unless an assault was imminent. Being agitated or upset is not the same as assaultive behaviour.

389 The grievor knew he had an upset person, if his version of the facts is accepted as true. He should have created distance to read the situation correctly and to avoid conflict. It is a normal expectation for a trained border services officer to create distance between himself or herself and the subject, as it gives a border services officer the time and space to determine whether the subject is a threat and the ability to act on that threat.

390 Chief Clarke did not agree that it was proper for the grievor to apply force to Mr. Tse‑Chun simply because Mr. Tse‑Chun was turning around. The Agency expects its border services officers to be able to deal with upset persons. A border services officer is expected to assess the situation. There were no utterances of threats and no attack postures from Mr. Tse‑Chun, and there was a physical size difference between the grievor and Mr. Tse‑Chun. The first step for a border services officer is to create distance or to tactically reposition himself or herself and to instruct the person to keep walking and to not turn around. Nothing suggested that that dialogue occurred.

391 In the grievor’s version of events, in which he claimed that he had to use force to prevent an imminent assault, Chief Clarke stated that the Agency’s policy is that such incidents be disclosed to a superintendent and submitted in a use-of-force report. Chief Clarke said that, although a border services officer might believe that an assault was imminent, such a belief has to be held reasonably, and the Agency will scrutinize it. Chief Clarke said that the law provides protection if a border services officer acts reasonably.

392 Chief Clarke said that it was reasonable for the grievor to ask Mr. Tse‑Chun to leave the bus and enter the land border office. Chief Clarke agreed that, if a person is ill and should not be travelling, a border services officer should take the passenger to the secondary level of inspection. Chief Clarke said that it might be a health and safety concern if a bus driver with passengers could not see. However, the context would be important, including whether there were problems with the driving, whether the passengers expressed concern, whether it was a reading issue or just a lack of reading glasses, or whether the driver was stumbling.

393 In September 2007, Chief Clarke met with the grievor and Off. Sullivan to discuss the grievor’s use of force during the incident and dishonesty during the investigation. Chief Clarke said that he received the investigation report (Exhibit E‑9) in the first or second week of September 2007. He was not concerned about the time taken to prepare the report. Chief Clarke could not recall any requests from the grievor to meet at an earlier time.

394 In his assessment of the grievor’s truthfulness, Chief Clarke was not concerned that Ms. Hellsten did not immediately make a complaint of excessive force to Supt Anderson. Many Agency employees are respectful of process, and Ms. Hellsten did not work at Pacific Highway Crossing. Chief Clarke was not concerned that Ms. Hellsten and others discussed the incident.

395 Chief Clarke said that he examined the discrepancy between the grievor’s account and the witnesses’ statements. Chief Clarke felt that the grievor’s account was unreasonable and untruthful.

396 Chief Clarke did not interview anyone who had been present on the evening of the incident while reaching his determination that the grievor was untruthful. Chief Clarke had the investigation report (Exhibit E‑9) and input from Mr. Hepplewhite. Chief Clarke thought that there was sufficient information for the grievor to respond. Chief Clarke was aware that the grievor and Off. Sullivan were of the view that the five pages of notes missing from Supt Ashikian’s report would help determine what the grievor actually said during the investigation.

397 Chief Clarke said that no one directed him to launch the investigation into a lack of truthfulness. It was simply the next step to take. Although the grievor did not report to Chief Clarke at that time, as the grievor was on assignment at the CANPASS Processing Centre, it fell to Chief Clarke, by default, to take the next steps as Chief Clarke was originally involved in referring the matter for an Internal Affairs investigation.

398 The grievor appeared to perform well in his CANPASS assignment.

399 Chief Clarke did not recommend that the grievor be terminated. Chief Clarke provided his notes to Mr. Hepplewhite. Chief Clarke did not speak to Supt Brezden but obtained emails from Supt Brezden.

400 Chief Clarke stated that he did not have the delegated authority to terminate a border services officer, although he had the power to suspend one. Mr. Delgaty had termination authority. Chief Clarke spoke with Mr. Hepplewhite and Mr. Scoville and did not recall conversations with Mr. Delgaty. On two earlier occasions, employees for whom Chief Clarke was responsible were terminated. Their terminations were not discussed with Chief Clarke beforehand.

401 Including acting assignments, Chief Clarke has been involved in management at Douglas Crossing since 1997.

402 The grievor asked Chief Clarke to follow up with Supt Brezden and Supt Anderson at the second pre-disciplinary meeting of October 2007. Chief Clarke said that Supt Brezden was not present during the incident and did not see anything. It was clear that Supt Brezden had no observations about the incident. The grievor did not disclose to Chief Clarke the names of any other witnesses.

403 In cross-examination, Chief Clarke said that, in most cases, border services officers used their discretion and dealt with bus clearances using verbal declarations and not using E‑311 cards.

404 Chief Clarke indicated that it was not his job to redo the investigation. He did not question Ms. Hellsten, Ms. Backman or Supt Anderson when reconciling different versions of events. Chief Clarke examined the discrepancies but felt that the grievor had been untruthful in his responses. Chief Clarke was not concerned that Ms. Hellsten’s statement (Exhibit E‑1) indicated that Ms. Hellsten had talked to others or that Ms. Hellsten did not take up any issue of excessive force with Supt Anderson.

405 Chief Clarke said that he felt that there was sufficient information on the untruthfulness allegation to respond. He was aware that the grievor claimed that Supt Ashikian requested a change to the conclusions in the grievor’s statement (Exhibit E‑9, Appendix A). Chief Clarke understood that the grievor initialled five pages of Supt Ashikian’s notes. Chief Clarke had a reasonable explanation of the contents of the interview. He was aware of the views of the grievor and Off. Sullivan that the notes would add detail.

406 Chief Clarke decided to investigate the truthfulness of the grievor’s statement (Exhibit E‑9, Appendix A) after meeting with Mr. Hepplewhite and discussing the differences between the grievor’s statement and those of the witnesses.

407 Chief Clarke said that the matter fell to him to complete by default as he had initiated the investigation. He was not supervising the grievor at that time.

408 Chief Clarke said that there were no issues with the grievor’s performance at the CANPASS Processing Centre.

409 Chief Clarke said that he did not make any recommendation about terminating the grievor. Chief Clarke made notes about the grievor’s response and forwarded them to the Agency’s labour relations branch.

410 Chief Clarke stated that he did not have the delegated authority to terminate an employee; Mr. Delgaty had that authority. Chief Clarke had conversations with Mr. Hepplewhite and Mr. Scoville but not with Mr. Delgaty. Chief Clarke has never in the past been consulted when the Agency terminated an employee.

411 Chief Clarke testified that he believed that Mr. Scoville and Chief Jan Brock were present at the disciplinary meeting of October 26, 2007. Chief Clarke was not present.

412 Chief Clarke admitted that other border services officers have not been terminated for allegations of untruthfulness, but he was not aware of the full particulars of those cases and had no involvement in any of those investigations or decisions.

413 Chief Clarke said that he began taking acting positions in 1997 and still does and that he has been involved in two earlier dismissal decisions.

c. Re-examination

414 Chief Clarke was asked about the grievor’s claim that Mr. Tse‑Chun was resistant, which is why the grievor grabbed Mr. Tse‑Chun’s shoulder and pulled Mr. Tse‑Chun to the land border office. Chief Clarke said that, in such a situation, a border services officer is required to submit a use-of-force report, as the grievor was compelling compliance with force, was taking steps to prevent an assault and was in a potential arrest situation.

415 Chief Clarke stated that, after the September 24, 2007 first pre-disciplinary meeting, the grievor asked Chief Clarke to follow up with Supt Brezden and Supt Anderson. Chief Clarke followed up with Supt Anderson but not with Supt Brezden, as no information would have changed anything since Supt Brezden was not present at the incident and so saw nothing.

416 Chief Clarke stated that the grievor did not provide him with the names of any other border services officers besides Supt Brezden and Supt Anderson.

7. Mr. Delgaty’s testimony

a. Examination-in-chief

417 Mr. Delgaty was Director General of the Agency’s Pacific Region for 18 years, until June 3, 2011. At the July 2011 hearing session, he was on leave. He took on a different assignment in the fall of 2011.

418 Mr. Delgaty’s responsibility included the Agency’s enforcement program in B.C. and the Yukon for 70 border crossings and 2100 staff, including 1500 uniformed staff and 300 peace officers. He reported to the vice-president of operations at the Agency’s headquarters in Ottawa. Mr. Delgaty had 12 district staff directly reporting to him, located at Vancouver International Airport, Metro Vancouver, Pacific Highway District (5 locations), West Coast and Yukon, Okanagan‑Kootenay, Intelligence Unit, Criminal Investigations Unit, Immigration Inland Enforcement Unit, Program Services Division, and Corporate Services Unit (human resources and finance). The responsibility to terminate employees rests at the regional director general level.

419 Mr. Delgaty said that he learned about the incident a few days after it occurred from Chief Clarke, by phone. Mr. Delgaty asked Chief Clarke to gather preliminary information and advised Chief Clarke, if the allegations were serious, to involve Internal Affairs. Mr. Delgaty said the district director or the program director for public complaints, Mr. Scoville at that time, would usually call in Internal Affairs.

420 Mr. Delgaty signed the letter terminating the grievor (Exhibit E‑18). Mr. Delgaty decided to terminate the grievor’s employment based on the investigation report (Exhibit E‑9). It led Mr. Delgaty to conclude that the grievor committed several workplace offences, the most important of which was his excessive use of force. Mr. Delgaty said that any use of force would have been excessive in the circumstances. He considered the grievor’s explanation a complete fabrication and did not find it credible in any way. Mr. Delgaty decided that the grievor’s conduct had severed a fundamental bond and that the Agency could not trust the grievor to be truthful when the grievor provided the Agency with information. The dishonesty was the determinative factor in the decision to terminate the grievor.

421 Mr. Delgaty said that he would have sent Supt Ashikian’s report (Exhibit E‑9) to Pacific Highway Crossing and to Human Resources. The report included the appendices containing the grievor’s statement (Exhibit E‑9, Appendix A) and his revised conclusion (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.”

422 Mr. Delgaty considered lesser punishment, such as a suspension. His view was that the termination was the correct course of action because of the grievor’s breach of trust. Border services officers are given immense powers and are expected to testify factually in court and when reporting incidents within the organization. The Agency cannot retain untrustworthy border services officers.

423 Mr. Delgaty referred to the following parts of the Agency’s Code of Conduct (Exhibit E‑19), which the grievor acknowledged receiving (Exhibit E‑21):

…

Accountability

You are responsible for behaving ethically and in keeping with the values and standards set out in the Values of Ethics Code for the Public Service, which forms part of the conditions of employment in the Public Service of Canada. The CBSA Code of Conduct is an extension of the Values and Ethics Code for the Public Service and both codes apply to all public servants working at the CBSA.

Public Service Values

• Ethical Values: Acting at all times in such a way as to uphold the public trust;
• People Values: Demonstrating respect, fairness and courtesy in their dealings with both citizens and fellow public servants.

CBSA Values

• Integrity: We exercise our authority in a principled, open and fair manner. We will accept responsibility for our actions in order to build and maintain a reputation of trustworthiness and accountability.
• Respect: We show the utmost appreciation for the dignity, diversity and worth of all people. We do this by listening to others to understand their positions and by behaving in a just, courteous and reasonable manner. We respect the privacy of Canadians and strongly uphold the Canadian Charter of Rights and Freedoms.
• Professionalism: We set high standards of achievement for our employees and strive for the provision of competent, quality service. In particular, we are innovative and harness smart technology to perform our mission.

…

Providing testimony or information

…

You are required to give testimony on behalf of the CBSA or the Crown in court and/or before any administrative tribunal or panel…

…

424 Mr. Delgaty testified that border services officers are often called to court to give evidence for prosecutions under the Customs Act, the Criminal Code and the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Border services officers are peace officers, authorized to use force, and they may be required to testify about their use of force. Mr. Delgaty testified that many law enforcement agencies in Canada are currently struggling with the perception of trust, and for border services officers, their integrity is key. If a border services officer is found to have lied in legal proceedings, the case could be lost. Public trust could be violated and future prosecutions jeopardized.

425 Mr. Delgaty considered why the grievor tried to “BS” his way out of it and Mr. Delgaty never received a satisfactory answer. Mr. Delgaty considered the grievor’s length of service, which was mitigating in one sense but also aggravating, as the grievor should have known better. Mr. Delgaty sought advice from Chief Clarke, Mr. Scoville, who became the director of the Pacific Highway District in September or October 2007, Mr. Hepplewhite, and the Director of Corporate Services in the Pacific Region.

b. Cross-examination

426 Mr. Delgaty was extensively and vigorously cross-examined. He maintained his view that, given the circumstances of this case, no force was required by the grievor, and any force the grievor used on Mr. Tse‑Chun was unreasonable and excessive.

427 In cross-examination, Mr. Delgaty stated that he was unsure whether Chief Clarke or Mr. Scoville first reported the incident to him. Some informal discussions might have taken place. Mr. Delgaty never discussed the matter with Supt Ashikian. Mr. Delgaty spoke briefly with Ms. Hellsten in passing. Ms. Hellsten said that she would provide a statement. Mr. Delgaty did not recall the particulars, but Ms. Hellsten indicated that she saw Mr. Tse‑Chun being mistreated, which was embarrassing, and that she would follow up with the district director. Mr. Delgaty indicated that it was a “heads-up” conversation and that he did not recall its details.

428 Mr. Delgaty was not familiar with the surveillance video retention period at the time of the incident. He indicated that the Agency has concerns about the video technology being used and that video retention periods are inconsistent at border crossings across Canada. At the relevant time, the video recordings were automatically overwritten; today, a more standardized approach is used for operating and retaining video. Mr. Delgaty said that no uniform video retention policy was in place at the time of the incident.

429 Mr. Delgaty gave no specific instructions for the investigation. Investigators report to the director general for security at the Agency’s headquarters in Ottawa, and Mr. Delgaty is not responsible for supervising investigators or their investigations. Mr. Delgaty was aware that an investigator was assigned and that the investigation was progressing, and Mr. Delgaty did not revisit the issue until he received the investigation report (Exhibit E‑9).

430 Mr. Delgaty was aware that the investigation took eight to nine months to complete and was not aware of why it took so long. He said that one reason was that delays were incurred ensuring access-to-information and privacy compliance by removing personal information from the investigation report (Exhibit E‑9).

431 Based on the investigation report (Exhibit E‑9), Mr. Delgaty decided that the grievor fabricated information.

432 Mr. Delgaty does not normally meet with investigators. Mr. Delgaty did not require the source documents as the information and conclusions drawn in the investigation report (Exhibit E‑9) appeared self‑explanatory. Mr. Delgaty relied on the investigation and did not conduct any inquiries. As a senior member of the Agency’s management, he relies upon others to gather information. He then makes decisions. He said that it would have been inconvenient and inappropriate for him to take a hands-on approach.

433 Mr. Delgaty estimated that he has received 40 to 80 investigation reports in his career.

434 Mr. Delgaty said that he reassessed the information in this case up to the point of signing the termination letter (Exhibit E‑18). He received advice as to the next steps to take. Mr. Delgaty stated that it is standard practice for a representative of the Agency to have one or more pre‑disciplinary meetings with an employee to obtain the employee’s response to an investigator’s report. Either Chief Clarke or Mr. Scoville informed Mr. Delgaty of the pre‑disciplinary meetings.

435 Mr. Delgaty did not understand why the grievor fabricated his explanation. Mr. Delgaty stated having been somewhat surprised that the grievor changed the conclusion of his statement (Exhibit E‑9, Appendix A) during the investigation. Mr. Delgaty stated that investigators use a variety of techniques to get to the truth and that it would be reasonable for an investigator to advise an employee to tell the truth.

436 Use-of-force experts are called in to make analyses depending on circumstances. The Agency’s use-of-force policy changed after border services officers were issued duty firearms. In a situation involving a complaint of use of force it is not a choice of either Internal Affairs or use-of-force experts; an Internal Affairs investigation might include a use‑of‑force expert. It is normal for an investigator to obtain information from use-of-force experts. The director general for security is requested to assign investigators. Mr. Delgaty relies on that director general for the quality control of an investigator’s work. District directors have the authority to suspend an employee but not to terminate an employee. In this case, a use-of-force expert was not required to help explain whether a hold, strike or other technique was reasonable. By the facts, no force was necessary. Therefore, any force was unreasonable and inappropriate.

437 Mr. Delgaty said that, when terminating an employee, he does not hold a hearing and does not meet with the employee before the employee is terminated. Mr. Delgaty has been involved in terminating over 100 employees. Discipline or terminations can be grieved. He has never met with an employee when he has exercised his delegated power to terminate. Mr. Delgaty might discuss the termination with a district director. The directors consult him for all serious decisions.

438 Mr. Delgaty did not recall being made aware of any personal circumstances of the grievor that would have affected Mr. Delgaty decision to terminate the grievor. In response to suggestions from the grievor, Mr. Delgaty stated that the fact that the grievor was a sole breadwinner or had a new child, while important at a personal level, was not important in terms of the breach of professionalism. Mr. Delgaty was aware that the grievor did not have a spotless record; nor was it terrible. Mr. Delgaty did not consider whether the termination would pose a special economic hardship on the grievor. Mr. Delgaty did not review the grievor’s personnel file. Mr. Delgaty did not consider whether the grievor behaved in a racist manner as there were no such indications. Mr. Delgaty had no understanding of the relative sizes of the grievor and Mr. Tse‑Chun.

439 Mr. Delgaty said that approximately four references to a use of force are in the termination letter (Exhibit E‑18). The grievor grabbed Mr. Tse‑Chun by the neck or the jacket, pushed Mr. Tse‑Chun, and took Mr. Tse‑Chun into the land border office. Mr. Delgaty considered those actions unnecessary and excessive as any application of force was inappropriate.

440 Mr. Delgaty is a peace officer, but he has no use-of-force training. He testified that border services officers must clearly communicate their expectations.

441 Mr. Delgaty was questioned about the bus‑traffic instructions (Exhibit E‑11). He noted that they are apparently printed in a 12-point font. Mr. Delgaty thought that they were quite clear. Whether a bus driver could actually read them would depend on lighting conditions, the stress of the situation, and the driver’s literacy level.

442 Mr. Delgaty indicated that he became involved in the decision to terminate the grievor when Mr. Scoville, a staff relations officer and the Director of Corporate Services recommended terminating the grievor’s employment. Mr. Delgaty was unable to quote a precise date, but he believes to have become involved a few weeks before the termination letter was signed.

443 Mr. Delgaty thought it reasonable that investigations be conducted as close to the incident as possible. He was asked why it took four months to interview the grievor and replied that the process can be lengthy.

444 Mr. Delgaty was asked whether it would surprise him if the grievor’s recollection of events had changed, given the time that has passed since the incident. Mr. Delgaty said that memories can fade but that the Agency expects its border services officers to note incidents in their notebooks immediately after they occur.

445 Mr. Delgaty agreed that it would not have been fair and impartial had Supt Ashikian refused to clarify Ms. Hellsten’s evidence because Ms. Hellsten is an Agency director. Mr. Delgaty said that it was up to Supt Ashikian to decide whom to interview and how to conduct the interviews.

446 Mr. Delgaty was asked how he reconciled the grievor’s statement (Exhibit E‑9, Appendix A) with Mr. Delgaty’s conclusions. Mr. Delgaty considered the grievor’s change of conclusion (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” Paragraph 12(e) of page 15 of the investigation report (Exhibit E‑9), which reads as follows, helped Mr. Delgaty conclude that the grievor fabricated his explanation of the incident:

…

e) The RESPONDENT was provided an opportunity to absorb the information and findings gathered through witness interviews before answering further to the allegation. The RESPONDENT stated that he was side tracked by the driver’s claim of not being able to see and this led him to an incident with the bus driver which was not what he had intended. The RESPONDENT requested an opportunity to rewrite the ‘conclusion’ to his written incident report. The RESPONDENT stated verbally, as well as wrote in his amended report, that he accepts full responsibility for his role in the incident. Further, he agrees that the witness accounts are a more accurate reporting of the incident.

…

Mr. Delgaty recognized that the grievor did not agree that the witnesses’ information was more reliable than the grievor’s own information. Mr. Delgaty decided that the grievor’s entire statement and conclusion were fabricated because they were at odds with the information provided by the witnesses.

447 Mr. Delgaty testified that his view was that the following portions of the grievor’s statement (Exhibit E‑9, Appendix A) to Supt Ashikian were untruthful:

• any statement in which the grievor characterized Mr. Tse‑Chun as resistant or aggressive;
• the grievor’s demeanour was calm and professional;
• Mr. Tse‑Chun continued to berate the grievor in front of the passengers;
• Mr. Tse‑Chun shouted at and berated the grievor and shook his finger in the grievor’s face;
• Mr. Tse‑Chun was abusive and loud as he walked beside the grievor;
• Mr. Tse‑Chun half-turned to the grievor, became increasingly aggressive and waved his hands;
• the grievor’s many references to Mr. Tse‑Chun’s behaviour being aggressive in the customs land border office;
• the grievor tried to de-escalate the situation; and
• Mr. Tse‑Chun was difficult and caused a disturbance.

448 Mr. Delgaty testified that the manner of the grievor’s communication with Mr. Tse‑Chun was inappropriate. It would have been professional of the grievor to request assistance from Supt Anderson. It would have been reasonable for the grievor to ask Mr. Tse‑Chun to exit the bus for further investigation away from an audience.

449 Mr. Delgaty indicated that it was a difficult decision to terminate the grievor. Mr. Delgaty considered that the termination would have a serious negative effect on the grievor and the grievor’s family. Mr. Delgaty did not specifically consider the grievor’s financial situation or living circumstances and was not aware of those particulars.

450 Mr. Delgaty was aware that other use-of-force complaints had been made against the grievor. Mr. Delgaty was aware of a minor disciplinary penalty imposed for one of the use-of-force complaints. Mr. Delgaty was aware that Supt Anderson had placed the grievor on an action plan, to work on the grievor’s approach dealing with the public, which was in the investigation report (Exhibit E‑9). Mr. Delgaty was unaware of any commendations in the use of force. The investigation report was never designed as a review of the grievor’s performance.

c. Re-examination

451 In re-examination, Mr. Delgaty testified that he became aware of other complaints and discipline related to the grievor through the Pacific Region’s Program Services. A report is prepared that shows trends, including whether complaints were founded or unfounded. Mr. Delgaty was aware of the action plan from Supt Ashikian’s report (Exhibit E‑9). Low-level discipline would have been included in a complaint analysis report.

8. Off. Sullivan’s testimony

a. Examination-in-chief

452 Off. Sullivan has been employed with the Agency and its earlier entities since 1989. He works at Douglas Crossing, near Pacific Highway Crossing. He is President of the Customs and Immigration Union, B.C. Southern Branch. He worked biweekly at both Douglas Crossing and Pacific Highway Crossing until five years ago. At the time of the incident, he was Executive Steward of the Pacific Highway Branch (or Local).

453 Off. Sullivan explained that the employees at Pacific Highway Crossing are split into two sections, traffic and commercial. Off. Sullivan worked at the traffic section, which deals with ordinary travellers. Border services officers performing primary bus inspections board buses. Off. Sullivan said that a quiet day would consist of 30 buses. He has observed 17 to 25 additional buses on some days; for example, on a day with a sports event, those additional buses can arrive just for the event.

454 Off. Sullivan testified that the usual practice is that a charter bus driver pulls up to the land border office, shuts off the engine, enters the land border office and provides E‑311 cards. Off. Sullivan testified that different charter bus drivers have different experiences with the system and that Pacific Highway Crossing issued written instructions similar to the bus‑traffic instructions (Exhibit E‑11). He testified that some bus drivers feign ignorance of the bus‑traffic instructions.

455 Off. Sullivan said that E‑311 cards, used by aircraft passengers, are also used for bus travellers at Pacific Highway Crossing. Those cards have been used for scheduled buses since Off. Sullivan started with the Agency. After September 11, 2001, all passengers entering Canada were required to complete the cards. They are collected and sent to the Agency’s headquarters in Ottawa for statistical and intelligence purposes. Off. Sullivan testified that E‑311 cards have been used at Pacific Highway Crossing since 2001.

456 Bus passengers on day trips are not required to disembark from a bus unless required to by a border services officer. The passengers must fill out E‑311 cards. Off. Sullivan explained that car passengers often make verbal declarations to the border services officer in the primary-inspection-lane booth. Off. Sullivan stated that verbal declarations are not supposed to be used in the bus area, except for school buses with one adult driver and children.

457 Off. Sullivan has asked drivers to leave their buses and speak with him in the past. He testified that buses are confined, noisy spaces without privacy and that it is sometimes better to have conversations outside the bus or inside the land border office.

458 Off. Sullivan stated that, despite how the E‑311 cards are worded, it was part of his job to ensure that an E‑311 card was completed for each family unit or individual. He stated that, if he encountered a driver who did not have the cards filled out, he would inform the driver that the clearance would take longer, as the cards would have to be filled out.

459 On busy nights, one or more border services officers may be stationed at the bus area. Border services officers enter buses as they arrive. Off. Sullivan said that the same reporting requirements apply as for cars. He said that the bus area is two lanes wide and that it can be noisy.

460 Off. Sullivan testified that video cameras were in the bus area and inside the land border office. One or two cameras were in the immigration section. He showed the camera locations on photographs showing the land border office (Exhibit G‑2). Off. Sullivan testified that he did not believe that the video recordings were digital at the relevant time. He believes that each recording lasted 24 hours and that each was retained for 30 days.

461 At the February 20, 2007 meeting, Supt Ashikian said that he was not prepared to begin the interview but that he wanted the grievor to provide a statement regarding the incident. Off. Sullivan advised that two people had made excessive-force allegations. He said that it was clear that Supt Ashikian was not going to answer questions. Off. Sullivan said that Internal Affairs considered the investigation an administrative matter, and Off. Sullivan was there as a witness and not as a bargaining agent representative.

462 Off. Sullivan said that, in an investigation, he would not be able to ask questions, suggest areas of inquiry or make representations. Internal Affairs investigators generally clarify that the role of a bargaining agent representative is to attend meetings as a witness. Off. Sullivan also said that no Internal Affairs investigator has ever told Off. Sullivan that Off. Sullivan could not ask questions, but investigators do not generally divulge information.

463 At that point, the grievor handed over a statement (exhibit E‑9, Appendix A) that he had prepared in advance. The meeting ended. Supt Ashikian told Off. Sullivan and the grievor that the next meeting would not be held soon as Supt Ashikian would have to read the statement and potentially talk to others, and Supt Ashikian was going on vacation.

464 At the April 2007 meeting, Supt Ashikian explained the nature of the investigation. He said that Ms. Hellsten had one version of events and that the grievor had another. He asked the grievor whom the grievor thought Supt Ashikian would believe. Off. Sullivan advised Supt Ashikian that Ms. Hellsten was not a uniformed border services officer but an administrative director and that being a director did not mean that Ms. Hellsten’s word should automatically be preferred over the grievor’s word.

465 Supt Ashikian explained that statements from two independent witnesses supported Mr. Tse‑Chun’s version. Off. Sullivan stated that it was hard to believe that the two witnesses were completely independent given how Ms. Hellsten said how excited everyone on the bus became and how the incident became a topic of conversation.

466 Off. Sullivan said that Supt Ashikian did not provide him with Ms. Hellsten’s statement (Exhibit E‑1) or Ms. Backman’s statement (Exhibit E‑2). Off. Sullivan requested those statements and was told that they would not be available at the meeting but that Off. Sullivan could obtain them through an access-to-information request. Off. Sullivan stated the grievor provided his version. Off. Sullivan said that, had Off. Sullivan been on the bus and observed what occurred and submitted a statement, it would differ from the grievor’s in certain small areas.

467 Off. Sullivan said that the meeting of April 12, 2007 was relatively short, that the grievor was found at fault, that the conclusion of the grievor’s statement (Exhibit E‑9, Appendix A) did not serve the grievor well, and that, if the grievor wished to redo that portion of the statement and accept that he had done wrong and was to blame, it could be done. Supt Ashikian offered to leave the room and then left. Supt Ashikian said that, if the conclusion of the grievor’s statement was to be redone, it had to happen before the session wrapped up. Supt Ashikian said that the conclusion did the grievor no good and that Supt Ashikian was more than willing to allow the grievor the opportunity to rewrite it.

468 Off. Sullivan did not make thorough notes, but Supt Ashikian took copious notes, and the grievor was entitled to read them and make corrections and additions if the notes did not correspond to what the grievor meant to say. Off. Sullivan asked for a copy of the notes. Supt Ashikian told Off. Sullivan that a method existed to obtain the notes but that Off. Sullivan would not obtain them that day. It was normal practice and was not unusual. People are informed that they can make access-to-information requests.

469 Off. Sullivan testified that he has not received a copy of the notes. He believes that the grievor made an access-to-information request to obtain a copy of the notes, which Off. Sullivan was not eligible to do, as it was the grievor’s right and not that of Off. Sullivan.

470 Off. Sullivan said that the grievor was not technically asked to change the conclusion of the grievor’s statement (Exhibit E‑9, Appendix A) but that the grievor was given an opportunity to do so. The grievor rewrote the conclusion (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders . . .”, at the end of the April 12, 2007 meeting.

471 Off. Sullivan’s next involvement was in September 2007, when the grievor received notice of a meeting with Chief Clarke and Supt Saran. It was the first pre‑disciplinary meeting of September 24, 2007 to provide an opportunity for the grievor to review Supt Ashikian’s report (Exhibit E‑9) and add anything to be considered. Some points were brought forward, including the following:

• the incident occurred on a dark rainy night;
• whatever happened immediately outside the bus door would have been difficult for a passenger to witness;
• Ms. Hellsten’s statement (Exhibit E‑1) should not be given major weight because she is an Agency director; and
• the passengers’ statements were suspect and not independent as it is likely that discussions occurred before they were made.

472 Off. Sullivan testified that page 6 of the “Internal Affairs Record of Interview” was a note that Supt Ashikian took during the interview of the grievor. It was the last page of Supt Ashikian’s notes. Off. Sullivan testified that he had seen a vetted copy of the investigation report (Exhibit E‑9), which also contained that page. Sections with personal information were blacked out. Off. Sullivan cannot recall whether he saw a copy of the report with names removed for privacy reasons or an unvetted report at the first pre‑disciplinary meeting of September 24, 2007.

473 Off. Sullivan and the grievor met with Chief Clarke and Supt Saran in October 2007. Off. Sullivan described that second pre‑disciplinary meeting as a “more formal repeating of the earlier meeting.” Off. Sullivan could not recall whether the investigation report (Exhibit E‑9) was made available at that time. He said that the meeting repeated points listed previously and that it was short.

474 Off. Sullivan testified about a final meeting with Mr. Scoville in October 2007, at which the grievor was terminated. Mr. Scoville read the termination letter (Exhibit E‑18) to the grievor. The grievor was asked to turn in Agency property. Within the next few days, Off. Sullivan asked to speak to Mr. Delgaty and was informed to use the grievance procedure. Off. Sullivan met with Mr. Delgaty during the grievance process. The grievance was denied, and Off. Sullivan referred the matter to adjudication.

475 Off. Sullivan did not speak to any border services officers who were on duty at Pacific Highway Crossing on the night of the incident, except for the grievor.

476 Off. Sullivan said that the time taken to complete the investigation was not unheard of. In his experience, Internal Affairs averages six to eight months to complete an investigation. As a general rule, the first interview is done close to the date of the incident. It struck Off. Sullivan that it took quite a while for Supt Ashikian to interview the grievor, which was done only in April 2007. Off. Sullivan said that, in his experience, investigators do not normally ask for a statement and then hold an interview two months later.

477 Off. Sullivan was unable to testify as to when he obtained a vetted copy of the investigation report (Exhibit E‑9). He was unsure whether it was obtained via the grievor’s access-to-information request or whether it was provided at the first pre‑disciplinary meeting of September 24, 2007. Off. Sullivan understood that Supt Brezden spoke with Supt Anderson about the incident.

478 Off. Sullivan testified that a full complement of border services officers on a shift is about 20 officers. He testified that rosters are created for shifts. He advised that Pacific Highway Crossing keeps the shift schedules and that it retained them for many years in the superintendent’s office.

b. Cross-examination

479 Off. Sullivan was not on duty during the incident and had no personal information about it. He testified that most, but not all, bus drivers were aware of the E‑311‑card procedure and that some drivers lied about their knowledge of it.

480 Off. Sullivan testified that a legal requirement exists to fill out an E‑311 card when entering Canada by airplane. He was not aware of any legal provision requiring bus passengers to fill one out, but they are required to report under the Customs Act. A border services officer may require a passenger to complete an E‑311 card, but managers at Pacific Highway Crossing required border services officers to ask for E‑311 cards from every adult bus passenger. Some border services officers accept verbal declarations from travellers returning from a day trip to the U.S., which Off. Sullivan stated does not contravene any Act of Parliament.

481 Off. Sullivan confirmed that he would educate bus drivers about the correct procedures and that he would provide them the bus‑traffic instructions (Exhibit E‑11). He said that he hoped that he would always have time to explain the bus‑traffic instructions but that he might leave them with the driver to read. Off. Sullivan stated that, if a bus driver told him that he or she did not think that the E‑311 cards were required, Off. Sullivan would explain that those cards were required and would provide the bus‑traffic instructions, if those instructions were available. Off. Sullivan said that he would not yell at the bus driver. Depending on the background noise, Off. Sullivan might raise his voice. He might ask the bus driver to leave the bus to speak to the bus driver, if that were appropriate. If the bus driver was cooperative and it was quiet, there would be no need for Off. Sullivan to raise his voice. Off. Sullivan would never tell a bus driver that the driver was telling him how to do his job; that would be unnecessary.

482 Off. Sullivan is aware that lighting within a bus varies. If a bus driver said that he or she could not read, Off. Sullivan would tell the bus driver to turn on all the lights. Off. Sullivan would not yell at the bus driver if Off. Sullivan could be understood in a normal speaking tone.

483 Off. Sullivan was uncertain whether videotape or digital recording was in place at the time of the incident. He conceded that at one point videotapes were overwritten after about a week. The digital system now retains information until a hard drive reaches its capacity, and then the information is overwritten.

484 Off. Sullivan stated that he would remove the driver from the bus, away from the passengers, if the passengers were unruly, the bus was noisy, there was something Off. Sullivan wished to speak about with the driver away from the passengers or Off. Sullivan was not getting through to the driver. Off. Sullivan stated that he might ask the driver to go into the land border office if that were more effective, for example if it was raining, a supervisor was required, or documents or other information was required.

485 Off. Sullivan would never have a person follow him; Off. Sullivan would have the person walk in front of him. There would be no need to pull or push a bus driver if the bus driver were quiet or cooperative. Off. Sullivan said that he could not separate the concepts of excessive or unreasonable force without considering the Criminal Code.

486 Off. Sullivan admitted that it would be unnecessary and inappropriate to threaten a cooperative bus driver with jail.

487 Off. Sullivan stated that, when a border services officer uses force, it must be reported to the Agency within 24 hours. Off. Sullivan said that grabbing a passenger by the shoulder or jacket was a use of force and that it would have to be reported using the use-of-force report. He considered that, if a border services officer touched the collar or jacket to guide a subject, it would not be a use-of-force situation.

488 Off. Sullivan did not recall Supt Ashikian giving Off. Sullivan a copy of the witnesses’ statements but agreed that the grievor was provided with excerpts from the statements of the witnesses during the course of the interview and that the grievor was given an opportunity to absorb the information and the findings.

489 Off. Sullivan agreed that there are big discrepancies or differences between the grievor’s statement (Exhibit E‑9, Appendix A) and those of the witnesses.

490 Off. Sullivan stated that, generally, an investigator asks questions, makes notes and gives the interviewee an opportunity to read his or her statement. The investigator makes changes and has the interviewee initial the bottom of each page in a form similar to Mr. Tse‑Chun’s statement (Exhibit E‑20). There was nothing unusual about the grievor not receiving Supt Ashikian’s notes when Off. Sullivan and the grievor met Supt Ashikian, as that is the norm.

491 Off. Sullivan stated that it takes about six weeks for a manager to receive an investigator’s report after it is completed.

492 Off. Sullivan said that he was not 100% sure of what happened at each pre‑disciplinary meeting with Chief Clarke. Off. Sullivan admitted that there was a long break in the September 24, 2007 first pre-disciplinary meeting, at which Off. Sullivan and the grievor received and reviewed a vetted copy of Supt Ashikian’s report (Exhibit E‑9). The meeting lasted 1.5 hours. Off. Sullivan said it could have lasted longer if required. At the meeting of April 12, 2007, Supt Ashikian had given the grievor an opportunity to comment on Supt Ashikian’s notes.

493 Off. Sullivan said that a person seated near the front of a bus might be able to see events occurring outside if that person were to lean over the safety bar and if the door swings out.

494 Off. Sullivan said that court testimony was a normal part of the grievor’s duties as the grievor worked in an enforcement capacity.

c. Re-examination

495 In re-examination, Off. Sullivan stated that often drivers do not shut off the bus engines and that, therefore, a conversational tone would be insufficient. I do not accept that testimony as helpful simply because Off. Sullivan was not present during the incident and could not comment on the noise level within the bus at the relevant time.

496 Off. Sullivan verified that paragraphs 14 and 15 of the investigation report (Exhibit E‑9) state roughly what the grievor said to Supt Ashikian.

9. Supt Brezden’s testimony

a. Examination-in-chief

497 Supt Brezden has been a border services officer since 1990. He has been a superintendent for the past two years. He has been posted for a substantialpart of his career at Pacific Highway Crossing and at Douglas Crossing. He is quite familiar with a border services officer’s duties and testified about the nature of the workplace.

498 Supt Brezden testified about the bus clearing process. His evidence was consistent with the other witnesses’. He said that border services officers ask drivers for E‑311 cards. He stated that drivers are not usually asked to exit buses, as border services officers inspect luggage compartments.

499 Supt Brezden testified that, were the bus parked right outside the door, it would have been approximately 10 to 11 feet from there to the land border office. However, I note that the bus was not parked right outside the door. Supt Brezden said that he has placed his hand on or grabbed travellers’ clothing. He said that he was aware of other border services officer’s doing the same. He stated that he was familiar with the Policy (Exhibit E‑3). He has filled out a use-of-force report. He has never filled one out after grabbing a person’s clothing. He is not aware of other border services officers filling one out for that reason.

500 Supt Brezden has known the grievor since the grievor started with the Agency in 2000. Supt Brezden would have no issues working with the grievor were the grievor reinstated in his position.

501 A couple of days after the incident, the grievor talked with Supt Brezden, the grievor’s local bargaining agent representative, about the incident. The grievor had concerns about possible complaints. The grievor asked Supt Brezden to obtain Supt Anderson’s view.

502 I note a strong hearsay element to Supt Brezden’s testimony, as he did not witness anything the night of the incident. He simply conversed with the grievor and with Supt Anderson. Part of my reason for allowing Supt Brezden’s testimony was that the Agency alleged that the grievor fabricated evidence. If the grievor expressed his version of events at a time near the incident, it could shed some light on whether or not his evidence was fabricated.

503 Supt Brezden said that the grievor related that Mr. Tse‑Chun failed to provide the E‑311 cards. The grievor gave Mr. Tse‑Chun the bus‑traffic instructions (Exhibit E‑11). Mr. Tse‑Chun said that he could not read them. Mr. Tse‑Chun was not cooperative, and the grievor grabbed Mr. Tse‑Chun’s jacket and led Mr. Tse‑Chun into the land border office. The grievor attempted to talk to Mr. Tse‑Chun in the bus secondary area. The grievor contacted Supt Anderson and went back and talked to Mr. Tse‑Chun. Supt Anderson had to raise her voice to calm Mr. Tse‑Chun down. Mr. Tse‑Chun apologized for being difficult.

504 Supt Brezden said that he heard similar information from Supt Anderson and the grievor. Supt Brezden testified that, when Supt Brezden asked Supt Anderson how Mr. Tse‑Chun was behaving, Supt Anderson said, “He was being a fucking prick.” Supt Brezden told the grievor that Supt Brezden thought that the grievor had nothing to worry about and that Supt Anderson had given the same story as the grievor’s, which was that Mr. Tse‑Chun was being difficult.

505 A year later, Mr. Scoville asked Supt Brezden for a statement. This was as a result of information provided in an email from the grievor to Mr. Scoville on October 16, 2007 (Exhibit E‑14). Supt Brezden provided an undated statement (Exhibit E‑16) and his email of October 24, 2007 (Exhibit E‑15). I note that while Supt Brezden’s statement is undated, Supt Brezden appears to have provided it to Mr. Scoville as an email attachment on October 24, 2007. He may also have hand delivered the statement to Mr. Scoville’s office. The words, “He was being a fucking prick,” were not in Supt Brezden’s email or statement. I note also that Supt Anderson was not questioned on this point.

506 Supt Brezden testified that he prepared his statement (Exhibit E-16) and showed it to Supt Anderson before he submitted it to Mr. Scoville. Supt Brezden wanted to show Supt Anderson the statement that he had prepared for Mr. Scoville.

507 Supt Brezden read his notes from October 24, 2007, which he made after a conversation with Supt Anderson after he prepared his statement (Exhibit E‑16) and before he submitted the statement to Mr. Scoville. According to Supt Brezden, Supt Anderson stated that she did not recall the conversation but that it was not a big deal when it happened. Supt Anderson would not have had any reasontoremember it. Supt Anderson remembered the grievor asking for help with Mr. Tse‑Chun; Supt Anderson told the grievor to handle it. The grievor returned some time later. Supt Anderson stated that she was in a bad mood as lots of things happened that night, and she was irritated that she had to bail out the grievor. Supt Anderson stated that she had to raise her voice to get Mr. Tse‑Chun to understand and to stop being difficult. Supt Anderson stated that Mr. Tse‑Chun was not uncooperative to the extent of being in Supt Anderson’s face or threatening but that Mr. Tse‑Chun was just being a “pain in the ass.” Supt Anderson told Supt Brezden not to worry about submitting the statement if that is what Supt Brezden remembered and that Supt Anderson could take care of herself.

508 Mr. Brezden’s email of October 24, 2007 (Exhibit E‑15) reads as follows:

…

I don’t remember exactly when it occurred, I believe it was within a few days of the incident. Andy was worried about another complaint and asked my advice, so I talked to Toni about the incident. Toni told me the story from start to finish. It was pretty much the same as what Andy told me. The driver did not have the passengers fill out E-311’s. Andy tried to give the driver a document listing his responsibilities when delivering passengers. The driver stated that he couldn’t read it. Andy asked him to come inside. Andy came and asked Toni to talk to the driver. Toni went and dealt with the driver who later apologized for his actions.

…

509 Supt Brezden was never asked questions about his statement (Exhibit E‑16) by anyone in management.

510 Supt Brezden said that he has put his hands on and has grabbed travellers’ clothing. He was aware of other border services officers who had also done so. He has filled out a use‑of‑force report in the past four or five times. He has never filled out a use-of-force report for touching or grabbing a traveller’s clothing and did not recall other border services officers doing so.

b. Cross-examination

511 Supt Brezden admitted that Supt Anderson’s account of what occurred inside and outside the bus before the grievor and Mr. Tse‑Chun entered the land border office was based on what the grievor told Supt Anderson. Supt Brezden’s understanding of the incident came from the grievor.

512 Supt Brezden stated that the grievor was worried about another complaint when the grievor spoke to Supt Brezden about the incident with Mr. Tse‑Chun. This is set out in Supt Brezden’ email dated October 24, 2007 (Exhibit E‑15). The respondent attempted to cross-examine Supt Brezden about the substance of the earlier complaints. I had made earlier rulings precluding evidence relating to complaints that were not part of the grievor’s disciplinary record. Therefore, I did not permit the respondent to pursue that line of questioning.

513 Supt Brezden said that following procedures to the letter can still result in complaints as it is the nature of the job.

514 Supt Brezden stated that standard operating procedure is to ask a bus driver for E‑311 cards for the passengers. Supt Brezden said that the E‑311 card has all the mandatory information and that, by comparing passport information, passengers can be cleared quickly, rather than individually. He admitted that no legal terminology requires bus passengers to fill out E‑311 cards. Supt Brezden said that a grace period is in place for the E‑311 cards and that bus drivers would be given notice when the cards become required. Supt Brezden stated that border services officers have been told to request E‑311 cards. He stated that it might not have been done through a policy document but that the practice was in effect at the time of the incident. Supt Brezden testified that some drivers were not aware of the E‑311 card instructions. He said that he was unaware that verbal declarations were being used during the time at issue. He indicated that this new policy was implemented around June 2006.

515 If a bus driver said that he or she did not know of the practice of using E‑311 cards, Supt Brezden would retrieve the bus‑traffic instructions (Exhibit E‑11) and the cards. If the driver cooperated and listened, then there would be no need to become aggressive.

516 Supt Brezden testified that he was not aware of where the bus stopped on the evening of the incident. He said that it would have been 10 to 11 feet from the land border office had it stopped at the indicated stop line.

517 Supt Brezden stated that he would grab the clothing of a traveller who was not fully listening. Supt Brezden would grab an elbow to direct a person if the person asked which way he or she should walk. If a person does not resist, then there is no need to grab their clothing. Supt Brezden stated that he would grab a person and pull that person by his or her outer garment if that person was being detained and attempted to go the wrong way. If the person resisted, Supt Brezden might grab that person’s clothing and release it once that person followed the correct path. If the person resisted and presented a danger to Supt Brezden or to the public, Supt Brezden might pull the person into the land border office. If Supt Brezden were detaining a person who was a threat to Supt Brezden or to other border services officers, Supt Brezden would keep his hands on that person. If Supt Brezden guided and forced a person, Supt Brezden would fill out a use-of-force report.

518 Supt Brezden stated that Supt Anderson told him that Mr. Tse‑Chun had been difficult. That contrasts with the information that Supt Anderson provided in her statements during the investigation (Exhibits E-6 and E-9) and in her testimony at the hearing.

10. Off. Duthie’s testimony

a. Examination-in-chief

519 Off. Duthie works on the warrant team, which hunts down individuals wanted on Canada-wide warrants. The Agency hired him in May 2006. In 2006, he worked as a border services officer at Pacific Highway Crossing and at Douglas Crossing. He worked with the grievor and was working on the night of the incident. Off. Duthie’s primary role in 2006 was to work the immigration business line. He did not work directly with the grievor.

520 On October 22, 2006, Off. Duthie was working on the immigration side of the land border office’s counter near the doors leading to the bus entrance. He was dealing with secondary immigration referrals and was determining travellers’ admissibility to Canada. At some point late that evening, he heard a radio call for assistance to the buses; it was not a panic or emergency call. He could not recall who made the call.

521 Off. Duthie said that a difficult situation tends to draw support from other border services officers. He followed a couple of other border services officers into the bus secondary area. The grievor was dealing with Mr. Tse‑Chun, who was sitting on a stainless steel box that border services officers used for the secondary inspection of luggage. The grievor was talking to Mr. Tse‑Chun. Other border services officers were present. Off. Duthie noted that Mr. Tse‑Chun appeared agitated, that the grievor was directing Mr. Tse‑Chun in a controlling manner and that Mr. Tse‑Chun was not being cooperative. Off. Duthie said that Mr. Tse‑Chun was angry, that the tone of Mr. Tse‑Chun’s voice was elevated, that Mr. Tse‑Chun was resisting and that Mr. Tse‑Chun was confrontational. Off. Duthie observed from about 15 feet away. Off. Duthie did not know what had led to the situation.

522 The grievor directed Mr. Tse‑Chun to the immigration secondary area, beyond a sliding glass door and asked Mr. Tse‑Chun to sit down. Off. Duthie and all border services officers repositioned themselves inside the area, to remove Mr. Tse‑Chun from the public and to make everything more secure. The grievor did not ask Off. Duthie for assistance. There was no need for Off. Duthie to intervene, and the situation appeared under control. Off. Duthie said that Mr. Tse‑Chun was agitated and flippant. Off. Duthie heard the grievor and Supt Anderson converse with Mr. Tse‑Chun, who was passively resisting and was flippant and angry.

523 Off. Duthie said that he became aware that Mr. Tse‑Chun had not made a proper declaration and that Supt Anderson and the grievor explained the proper procedure of handing out E‑311 cards. Mr. Tse‑Chun was animated with his hands and was brushing them off, saying, “Yeah, yeah I know.” It appeared that Mr. Tse‑Chun was not listening and was not being cooperative. Off. Duthie explained that “anybody that displayed an agitated behaviour was not cooperative as he was raising the level of risk.” Mr. Tse‑Chun was being compliant but seemed reluctant to comply with demands.

524 Much of the information was elicited from Off. Duthie in a leading manner, and the respondent objected to the leading form of the questions.

525 Off. Duthie described Mr. Tse‑Chun’s demeanour as agitated, uncooperative and angry and that Mr. Tse‑Chun dismissed what was being said with hand gestures. Mr. Tse‑Chun seemed reluctant to comply with demands. Off. Duthie said that he observed Mr. Tse‑Chun for half an hour.

526 Off. Duthie said that it got to the point where everyone had to raise their voices to get their points across. Mr. Tse‑Chun would backtalk to Supt Anderson and the grievor. Mr. Tse‑Chun was uncooperative, non-compliant and argumentative. Mr. Tse‑Chun calmed down in time.

527 Off. Duthie said that he was then tasked to do something else. He said that he acted as an observer. He said that it is common and normal for people to be agitated or argumentative at border crossings.

528 Off. Duthie underwent training in August 2006. He took use-of-force training. He has been involved in use-of-force incidents.

529 Based on his observations, Off. Duthie placed Mr. Tse‑Chun somewhere between cooperative and non‑cooperative. Such a determination could creep into resistive behaviour if a person reluctantly rises to move, which could indicate that the person was changing their behaviour to a higher risk level.

530 Off. Duthie testified video cameras covered all counter space and doorways in the bus and immigration secondary areas. Typically, a camera covered anywhere a border services officer could interact with a member of the public. Off. Duthie did not know how long the videos were retained. He did not see any passengers leave the bus.

531 Off. Duthie did not offer management a statement of what he observed because he did not think that there was anything to report. He first came forward right after the grievor was terminated. Off. Duthie knew the grievor as a peripheral friend and did not think that the incident was a big deal or that the grievor would be terminated. No one came to Off. Duthie about any termination. Off. Duthie contacted the grievor and offered his support. Off. Duthie felt it unusual that he was not interviewed in an investigation that led to an employee’s termination for a critical incident and the use of force because he had observed some of the incident.

b. Cross-examination

532 In cross-examination, Off. Duthie acknowledged that he did not witness any earlier interactions between the grievor and Mr. Tse‑Chun. Off. Duthie recalled only Supt Anderson being in the immigration secondary area. Off. Duthie confirmed that Mr. Tse‑Chun was angry, agitated and uncooperative, in Off. Duthie’s opinion. Off. Duthie was asked to consider Supt Anderson’s statement of mid-December 2006 (Exhibit E‑5), in which she states that Mr. Tse‑Chun was not agitated. Off. Duthie said that Supt Anderson did not describe any type of behaviour. Off. Duthie said that a person can be unwilling and uncooperative but not resistant. Off. Duthie said that a witness could give body language and threat cues. Off. Duthie agreed that Supt Anderson’s statement of mid-December 2006 (Exhibit E‑5) did not describe what Off. Duthie observed.

533 Off. Duthie was asked to consider Supt Anderson’s statement of September 16, 2007 (Exhibit E‑6). Off. Duthie said that, when he was standing to Supt Anderson’s left, he heard Supt Anderson’s tell Mr. Tse‑Chun to sit, stay calm and quiet, and behave, and Supt Anderson’s was speaking to Mr. Tse‑Chun. Based on Off. Duthie’s experience and training, Supt Anderson’s level of aggression met Mr. Tse‑Chun’s level of aggression.

534 In cross-examination, Off. Duthie added that he did not inform the Agency because Supt Anderson was there. Off. Duthie had nothing to add as the Agency had Supt Anderson’s information and Supt Anderson had had more interaction in the situation than Off. Duthie had.

535 When the grievor was posted to the CANPASS Processing Centre, it became apparent to Off. Duthie that the incident was serious. Off. Duthie assumed that someone would speak to Off. Duthie. He did not take the initiative to speak to management about what he had seen. He thought that the grievor would have seen him in the land border office on the night in question. Off. Duthie was not surprised that the grievor did not provide Off. Duthie’s name.

536 Off. Duthie believes that the grievor was interviewed more than a year after the incident, and it would have been challenging to remember who had been on shift on that night. Off. Duthie said that it is not the grievor’s job to provide the roster to Supt Ashikian. Off. Duthie worked as an investigator in the past and gathered his own evidence.

11. Grievor’s testimony

a. Examination-in-chief

537 The grievor has a two-year criminology diploma and has completed three years towards a Bachelor of Arts degree in Sociology at the University of Victoria.

538 The grievor described his work experience. He was in the Canadian Armed Forces from 1985 to 1995. He was an auxiliary constable with the RCMP for six years. He was a security supervisor with Intercon Security. He was an immigration officer for three terms with Citizenship and Immigration Canada at the Vancouver International Airport and at Victoria Harbour. He worked as a passport examiner for Passport Canada for a few years. He had summer student employment with the Agency. He was a border services officer with the Agency from 2000 to 2006.

539 Since being terminated, the grievor has worked as a term employee with the Coast Guard and as a public security officer with the Vancouver International Airport for Guarda Security. The grievor is currently a manager of security for Fairmount Hotels and Resorts, as well as a part-time on-call coxswain with a Coast Guard rescue boat.

540 The grievor said that his mandate as a border services officer at Pacific Highway Crossing and at Douglas Crossing was to facilitate people and goods cross the border, with the intent of protecting the economy and Canadian society. He confirmed that, at the time of his termination, he was a risk officer with CANPASS.

541 In his border services officer position, the grievor worked shifts on the primary-inspection lane with vehicles and foot traffic. Periodically, he would work with marine traffic at the White Rock customs dock. He also conducted secondary examinations of persons and goods.

542 In 2002 or 2003, the grievor became a designated officer under section 163 of the Customs Act, which legislated enhanced powers under the Criminal Code to border services officers to investigate and enforce legislation. He received use-of-force and defensive tactics training and IM/IM training at Huntingdon Crossing. He has taken the course on two or three occasions. At the time of his initial training at the Agency’s Rigaud Training Centre, use-of-force training was not part of the curriculum. He also had use-of-force training with the RCMP in 1989, including in firearms. He said that the RCMP approach was similar to the Agency’s IM/IM. He had firearm, baton and pepper spray training and certification every year.

543 The grievor explained the normal process of clearing a bus. As a bus crosses into Canada, it pulls into the bus inspection area at Pacific Highway Crossing. Typically, no border services officers are stationed in that area unless there is a large volume of buses.

544 Normally, the drivers report inside the land border office to the secondary counter and state that they are drivers, the name of the bus line, the number of passengers and how long the bus was in the U.S. Scheduled bus drivers give less-detailed reports as they have less passenger knowledge.

545 For scheduled buses, luggage is offloaded to a carousel. A border services officer turns the carousel conveyor belt on and brings the luggage inside. Bus drivers bring in the passengers, who line up at an inspection booth for clearance. Any persons requiring immigration are sent to the immigration secondary area along with an E‑311 card coded for immigration review. Passengers can be sent for a secondary customs inspection. A border services officer inspects the bus to ensure that no baggage or contraband remains.

546 Some buses are examined in depth, if indicators are present. Beginning early in 2000, buses began to be examined in more detail due to drug smuggling concerns. Cleared passengers remain in a restricted cleared area and wait to be picked up by the bus.

547 For chartered buses, the drivers report in the same way, but they typically bring E‑311 cards for themselves and the passengers.

548 A border services officer working in the bus area can board a bus to facilitate a more speedy clearance and can ask the bus driver for the information that he or she would be required to report at the counter, including the E‑311 cards. A border services officer then examines the stack of cards for the passengers and reviews citizenships and residencies to determine if immigration processing is required. A border services officer also reviews the answers to the card’s questions, including the value of goods acquired and information about weapons, alcohol and tobacco, pets, plants, and meat, and whether a given passenger will visit a farm within next 14 days or is carrying $10 000 or more in cash. Luggage might be removed, at a border services officer’s discretion, if indicators are present. The grievor testified that the same policy, procedures and methodology are used for clearing charter buses on day trips.

549 The grievor stated that the number of border services officers in the bus area depends on the amount of bus traffic. Generally, for scheduled buses, having less than three border services officers on duty can result in delays clearing traffic. Normally, when they are aware of sporting events or concerts, two border services officers work in the bus area to facilitate traffic flow and to ensure safety of the officers working at Pacific Highway Crossing.

550 The grievor regularly prepared statistics. Usually, 30 to 35 buses are cleared at Pacific Highway Crossing in a 24-hour period. The mix of chartered and schedule buses varies; perhaps 50% of buses cleared are charters. The grievor stated that, with major events such as sports matches, concerts, festivals, parties, parades and holidays, more traffic is expected.

551 The bus lanes are also used for special clearances in which advance permission and appointments are sought. Specific examples include a funeral for a Seattle police officer killed in the line of duty and a Shriner’s sick children bus.

552 The grievor stated that Seattle Seahawks football games attracted considerable traffic at Pacific Highway Crossing, often 25 to 30 buses more than the regular volume. Typically, extra staff is brought in to deal with the volume. Passengers on those buses have often been drinking, and the traffic is more challenging to clear.

553 The grievor worked the bus lanes each day but also worked part of each day with vehicle traffic and at the secondary counter inside the land border office. The bus‑traffic instructions (Exhibit E‑11) were posted outside the land border office.

554 Pacific Highway Crossing’s policy to use E‑311 cards was not documented in a manual. Employees had to learn and understand Pacific Highway Crossing policy, which further refined the procedures set out in the Customs Act at the local level. There were no published standard operating procedures. There was a Customs Enforcement Manual, a customs processing manual, and memos or aides-mémoire on topics such as the use of force and impaired driving. The Traveller Processing Manual (Exhibit G‑3) was “the Bible.”

555 The grievor was trained in traveller processing at the Agency’s Rigaud Training Centre. He was taught that E‑311 cards could be used for all modes of travel. E‑311 cards are available for passengers and drivers at Pacific Highway Crossing.

556 The grievor identified six photographs of the bus lane and of inside the land border office (Exhibit G‑2). He indicated that two traffic lanes were in front of the land border office for buses and that two traffic lanes were behind it for commercial trucks.

557 The grievor indicated that, during the incident, Mr. Tse‑Chun’s bus was stopped six to eight feet behind the stop line in the bus traffic lane. In cross-examination, he drew this on photograph 2 showing the land border office (Exhibit G‑2) and identified that Mr. Tse‑Chun’s bus was approximately one bus length behind the bus in front of it, which was probably stopped at the stop line.

558 The grievor was aware that a video surveillance system was in place covering the bus area and the inside of the land border office. Part of a border services officer’s night-shift duties was to remove the surveillance videotape and replace it with a new one for the next shift. The grievor said that the tapes were cycled on a 30-day basis. He recalled seeing clear still photographs of an arrest in the land border office produced from the video surveillance system.

559 The grievor referred to portions of the Traveller Processing Manual (Exhibit G‑3) dealing with his authorities and training. The first three pages dealt with “defusion” techniques (Part 1, chapter 3), including indicators, both verbal and non-verbal, from travellers who could be difficult or who indicate a higher level of anxiety and how to defuse or handle those situations.

560 The excerpt of the Traveller Processing Manual (Exhibit G‑3) also contained information about primary processing and immigration referrals of travellers and a traveller’s duty to report pursuant to section 11 of the Customs Act and to truthfully answer a border services officer’s questions asked in the performance of the border services officer’s duty. The grievor said that the manual stresses the importance of recognizing behaviours early. In particular, the grievor referred to the influence of onlookers. The manual states at page 2, part I, chapter 3:

…

Another factor is the influence of onlookers. If onlookers appear to be in support of a disruptive traveller, this may increase the likelihood of prolonging or escalating the confrontation. Conversely, if the onlookers are trying to ignore the individual or expressing disapproval, this may de-escalate the situation with the traveller embarrassed or ashamed at losing control in public.

…

561 The grievor explained the diffusion techniques, which are methods to calm a traveller or to gain control of an escalating situation. The grievor said that those methods include several ones, such as listening, waiting for peaks and troughs, allowing venting, showing active listening, removing the subject from an audience, explaining to or educating the subject, and stating the benefits and consequences or boundaries.

562 The grievor said that embarrassment or saving-face is often important to defusing a situation. The grievor explained the importance of questioning and listening to the indicators present. The grievor explained the importance of a primary inspection and that, if a reasonable explanation is not provided, it could lead to a further examination.

563 The grievor highlighted referrals for medical reasons. The grievor stated that, if a border services officer cannot reach a final determination at the primary examination, a traveler could be taken for secondary examination.

564 The grievor was referred to his statement (Exhibit E‑9, Appendix A). He explained that Supt Ashikian contacted the grievor between October 2006 and February 2007 and that Supt Ashikian asked for a statement. The information that the grievor received was vague, and he did not know if it was about an incident or about the examination of a traveller. The grievor said that he has dealt with many incidents. He believes that he had a conversation with Chief Clarke in Chief Clarke’s office about a bus clearance, which the grievor believed was “the incident”. The grievor said that the details about the name, place and incident were vague. He recalled asking for more information as to what Supt Ashikian was referring to. The grievor said that, typically, he would be provided with an allegation, to which he would reply.

565 The grievor recalled one afternoon during which Chief Clarke asked the grievor to come to Chief Clarke’s office at Pacific Highway Crossing. Chief Clarke raised the issue of Ms. Hellsten’s and Ms. Backman’s allegations. The grievor was not sure whether Chief Clarke provided a date for the alleged “incident.” The grievor recalled Chief Clarke stating that “the incident” was going to be investigated and that the grievor would be assigned to the CANPASS Processing Centre. The grievor did not recall what he was told about the allegations.

566 The grievor had no work or social contact with other co-workers as the CANPASS Processing Centre was contained in portable buildings on a separate part of Pacific Highway Crossing, accessed separately. He said that it was an embarrassing time for him and that he tried to focus on what he was told to do.

567 The grievor did not recall much of his early contact with Supt Ashikian — the grievor does not know when it occurred, whether it was an in‑person meeting or telephone meeting, where the meeting took place and the grievor does not remember giving Supt Ashikian a statement (Exhibit 9, Appendix A). The grievor recalled discussing his statement with Supt Ashikian at a later meeting. The grievor was informed that Supt Ashikian wanted to talk with the grievor about the incident. The grievor was told that he was entitled to bring an observer. He asked Off. Sullivan to attend. The meeting took place in Pacific Highway Crossing’s boardroom. Supt Ashikian reviewed the instructions for the interview, including the grievor’s right to have an observer present. Supt Ashikian mentioned that the questions and answers would be recorded. The grievor recalled asking for a copy of everything written down and was refused. Off. Sullivan expressed concern. The grievor was concerned because it was information that he had given and signed.

568 The grievor recalled that four months had passed and that he had challenges recalling what had taken place. He recalled that he had contacted Supt Ashikian about a speedier interview through his managers at Pacific Highway Crossing and that Supt Ashikian replied about going on vacations, so it could take a while.

569 The grievor said that he expressed his concern about the delay to management, including Chief Clarke and Acting Chief Bonnett. The grievor thought that an unreasonable amount of time passed, while memories were fading. He saw no reason that he would not have a venue to discuss the incident sooner. He also recalled requesting access to the use-of-force trainer. He said that he had been told in training that it is policy that any border services officers involved in any use-of-force situations would have access to technical trainers to discuss the situation, who would help border services officers articulate and understand what had happened.

570 The grievor recalled that, at the start of the interview, Supt Ashikian told the grievor that the grievor would be given an opportunity to review, amend, initial and sign the record of the interview. The grievor said that Supt Ashikian took 6 pages of handwritten notes, and that they were written on pages entitled, “Internal Affairs Investigation – Record of Interview.” The grievor read and reviewed the questions that were asked and the recorded answers. He said that he felt awkward signing each page as he felt that he did not give enough information to clarify the incident. He signed the pages on the basis that they described what had transpired during the interview. He found it unusual that he was not provided with a copy.

571 After he was terminated, the grievor made an access-to-information request in which he asked for anything pertaining to the incident and the investigation. He indicated that the response took a long time and that he did not receive a record of his interview. He received edited copies of witness statements. He did not consider the information of much use.

572 The grievor recalled that October 22, 2006 was a busy night with a lot of car and bus traffic coming back into Canada and that a Seattle Seahawks game was scheduled for that night. He indicated that he expected a lot of buses and difficult travelers with alcohol issues. He recalled a discussion about short staffing that night with Team 7. He recalled that it was a concern as it is difficult to control the flow of traffic and to deal with secondary examinations, seizures and arrests.

573 The grievor walked the land border office to help clear buses, which were lined up. He partnered up with another border services officer, Robert Reeve; they cleared a line of buses. He explained that each border services officer picked a bus, boarded it and ran through the clearance process with the bus driver and passengers. The grievor recalled that Off. Reeve had to leave to clear cars. The grievor recalled asking over the radio for another border services officer to help clearing buses, as it was busy. Clearing buses is a lot of work for one border services officer, and the service goal is 20 minutes of wait time. He received no answer. That was typical, as border services officers go to the bus area when they are free.

574 The grievor went up the bus stairs and asked Mr. Tse‑Chun for the E‑311 cards. The grievor said having been short and to the point. He did not say “Good evening. Welcome to Canada. How are you?” He said only, “Declaration cards,” and held out his hand. He recalled Mr. Tse‑Chun looking at the grievor with a frown and with a confused look. Mr. Tse‑Chun said, “Declaration cards?” The grievor replied, “Yes.” Mr. Tse‑Chun said, “I do not need those,” or words to that effect. The grievor said that he looked at Mr. Tse‑Chun and took a moment to think about what Mr. Tse‑Chun was saying and to assess Mr. Tse‑Chun’s intentions as to whether Mr. Tse‑Chun was genuinely confused, asking a question or trying to be obstinate. From the start, it appeared to the grievor that Mr. Tse‑Chun was being difficult. The grievor stated that some drivers fake their lack of knowledge of the regulations or protest the requirement to follow a border services officer, due to the amount of work required to complete the process.

575 Common bus driver complaints include that there were not enough pens for passengers, that there were no E‑311 cards, that passengers were resistant or did not complete them properly, or that the bus driver had difficulty explaining how to complete the cards properly. The grievor said that some drivers do not want to go through the process. The grievor has had bus drivers tell him that it was their first run and has helped them if their demeanour indicated an inquisitorial nature, cooperation and a willingness to meet requirements.

576 In the case of Mr. Tse‑Chun, the grievor formed the opinion that Mr. Tse‑Chun was unwilling to cooperate because Mr. Tse‑Chun did not want to make the effort. Rather than get into an argument that Mr. Tse‑Chun appeared prepared for, the grievor got off the bus, walked over to the wall nearby and grabbed the bus‑traffic instructions (Exhibit E‑11) as a support to clarify his request. Mr. Tse‑Chun stated that the grievor was the only one who had asked Mr. Tse‑Chun for E‑311 cards, which was a standard response from drivers cleared every day. The grievor wanted to give Mr. Tse‑Chun the bus‑traffic instructions to show that there was a process, that it was not arbitrary, that the grievor was not singling Mr. Tse‑Chun out, and that it was reasonable and sensible.

577 The grievor boarded the bus and handed the bus‑traffic instructions (Exhibit E‑11) to Mr. Tse‑Chun. The grievor said having held them out at waist height, which was head height for Mr. Tse‑Chun, and slanted them towards Mr. Tse‑Chun. The driver’s light was on, and the grievor said, “Here you go.” He allowed Mr. Tse‑Chun sufficient time to examine the bus‑traffic instructions and to comment. The grievor said having paused. He said that Mr. Tse‑Chun looked at the bus‑traffic instructions and said something to the effect of, “What is this?” The grievor said that it was the procedure followed for clearing buses. The grievor said that Mr. Tse‑Chun again said, “What is this?” The grievor replied that it was the bus‑traffic instructions.

578 The grievor said that events then took a turn because Mr. Tse‑Chun said not being able to see the bus‑traffic instructions (Exhibit E‑11). The grievor said that he pursued this issue and asked Mr. Tse‑Chun for clarification. The grievor said, “Sir, what do you mean you cannot see it? Why cannot [sic] you see it?” Mr. Tse‑Chun did not answer and frowned. Mr. Tse‑Chun either had an issue or pretended to have one. Mr. Tse‑Chun wore a confused frown, almost as if he also could not understand what was happening. The grievor asked Mr. Tse‑Chun if Mr. Tse‑Chun had an eye problem and asked, “What is wrong with your eyes? Are you having a problem?” The grievor explained being an on-duty first-aid attendant and that there was a first-aid room at the land border office. If a person experienced medical distress, an ambulance could be called, which had happened a few times. The grievor was wondering if Mr. Tse‑Chun had a medical issue or was having a stroke or what else could be causing Mr. Tse‑Chun’s behaviour. If possible, the grievor wanted to rule out the obvious.

579 The grievor said, “For a short while, we are at the bus together.” The grievor said that Mr. Tse‑Chun’s hands were “hopping” about Mr. Tse‑Chun’s face in the general region of Mr. Tse‑Chun’s eyes, that Mr. Tse‑Chun had a confused and frustrated frown, and that Mr. Tse‑Chun did not volunteer information. The grievor hoped that Mr. Tse‑Chun would provide an explanation. The grievor said that Mr. Tse‑Chun’s movements were quick. The grievor described Mr. Tse‑Chun as anxious and that Mr. Tse‑Chun’s anxiety level had increased. Mr. Tse‑Chun was short and curt in his replies. Mr. Tse‑Chun was neither descriptive nor helpful and was loud. Mr. Tse‑Chun’s voice was too loud for the circumstances; the volume seemed odd. The grievor said that he continued to observe what was happening. He said that he asked several times, “Why can’t you see?” Mr. Tse‑Chun said, “I don’t know why you ask this, I never had to do this, you are the only one.” The grievor said that they were not communicating very well by that point.

580 The grievor said that he recalled a woman from behind him say that Mr. Tse‑Chun was fine and that Mr. Tse‑Chun was OK. The grievor recalled turning to speak to the woman as perhaps she could explain further. She said that Mr. Tse‑Chun had been driving all day and that she did not think that Mr. Tse‑Chun was having a problem, or words to that effect. The grievor recalled telling the woman that Mr. Tse‑Chun referred to not being able to see. The woman said that Mr. Tse‑Chun was OK. The grievor recalled asking the woman words to the effect of how she knew Mr. Tse‑Chun was OK and whether the woman was concerned. The woman replied that she was not.

581 The grievor said that bus passengers can have an “us-against-them mentality,” in which they are defensive. He said that people often view the relationship with border services officers as oppositional or antagonistic, which is not the intention of border services officers or the clearance process. He said that many people misunderstand the intentions of what they call “border guards.”

582 The grievor said that he accepted the value of the female passenger’s input. He recalled Mr. Tse‑Chun shuffling papers instead of talking to the grievor, that Mr. Tse‑Chun had a confused, upset frown, that Mr. Tse‑Chun was quick with his movements and that Mr. Tse‑Chun was answering loudly but was not explaining anything.

583 The grievor said that he continually assessed the situation. He formed the opinion that Mr. Tse‑Chun was embarrassed and had a private issue that Mr. Tse‑Chun did not want to discuss in front of other people. The grievor thought it would be good to go to another area where nobody could interject into their conversation, as he felt it was distracting to him and Mr. Tse‑Chun. The grievor said that, if Mr. Tse‑Chun’s level of anxiety was increasing because of the other people on the bus, Mr. Tse‑Chun might relax in a more private setting. The grievor said Mr. Tse‑Chun was muttering or being loud and that Mr. Tse‑Chun said, “Why me? You are the only one I can’t see.” The grievor replied, “Sir, let’s step off the bus, come with me.”

584 The grievor said that the light directly above Mr. Tse‑Chun was on. The grievor said that a light by the control panel was also on. He said that all the lights the length of the bus were on and that it was quite well lit.

585 The grievor said that he led Mr. Tse‑Chun off the bus and that Mr. Tse‑Chun followed the grievor. Once the grievor stepped onto the sidewalk, he walked six feet or eight feet and turned around. Mr. Tse‑Chun was following the grievor. Mr. Tse‑Chun stopped. The grievor remembered that Mr. Tse‑Chun’s anxiety level went from medium to high; it elevated.

586 The grievor said that he decided to defuse the situation because Mr. Tse‑Chun had elevated his anxiety and aggression. The grievor said that whatever had bothered Mr. Tse‑Chun on the bus was turning to frustration and anger now that Mr. Tse‑Chun had been delayed. Once they exited the bus, it became protracted. The grievor said that it seemed that Mr. Tse‑Chun was embarrassed and was going to let the grievor know it.

587 The grievor said that Mr. Tse‑Chun began talking first and that Mr. Tse‑Chun was talking over the grievor. The grievor said that Mr. Tse‑Chun’s frown and unhappy and angry look were apparent. Mr. Tse‑Chun was focused and was talking with his hands, which were raised and moving. The grievor said that Mr. Tse‑Chun criticized the grievor and said, “You are the only one. Why are you doing this?” The grievor said that Mr. Tse‑Chun was shaking his hand and that Mr. Tse‑Chun raised it directly toward the grievor’s face. Mr. Tse‑Chun leaned in and brought his hand up, closing the distance somewhat. To a trained person watching for pre-assault cues, that movement added to the indicators. The grievor said that his flight-or-fight instinct was alert at that point. He said that he began feeling physiological changes in that he felt intimidated or that the situation was getting out of control.

588 The grievor raised his voice and told Mr. Tse‑Chun to listen. The grievor said that Mr. Tse‑Chun quieted down somewhat. The grievor told Mr. Tse‑Chun to stop shouting and to stop waving his hand and that, if Mr. Tse‑Chun did not calm down, Mr. Tse‑Chun could be arrested. Mr. Tse‑Chun shook his head and kept frowning. It appeared that Mr. Tse‑Chun was confused. He was angry but appeared confused. The grievor said not being able to read or understand Mr. Tse‑Chun’s issues. The grievor said that Mr. Tse‑Chun was either throwing up barriers or it was Mr. Tse‑Chun’s way of being difficult.

589 The grievor said that he needed answers and that it was not acceptable to just let everything go and release Mr. Tse‑Chun without clearing the bus or addressing the safety issues.

590 The grievor said, “Let’s go inside.” It was stern and clear and was not a request. He pointed toward the door and said, “Let’s go.” The grievor said that, at times, Mr. Tse‑Chun stopped and stared, frowning all the while. The grievor was thinking that Mr. Tse‑Chun did not look happy. The grievor wondered what would happen next. The grievor pointed and motioned for Mr. Tse‑Chun to walk. Mr. Tse‑Chun began to walk slowly with his head down, and Mr. Tse‑Chun looked back once or twice. The grievor recalled that Mr. Tse‑Chun kept commenting, along the lines of credulity and that the grievor had to be joking. Mr. Tse‑Chun said having done nothing wrong. The grievor said that Mr. Tse‑Chun was being loud, short and curt and that Mr. Tse‑Chun was staring and frowning. Mr. Tse‑Chun was angry outside the bus and had not been angry on it. The grievor was unable to describe Mr. Tse‑Chun’s anger level.

591 It was only 10 feet to the door of the land border office. After the grievor and Mr. Tse‑Chun travelled maybe three or four feet, Mr. Tse‑Chun said something in an angry manner and turned toward the grievor. The grievor wanted to get Mr. Tse‑Chun inside, refer Mr. Tse‑Chun to Supt Anderson and obtain assistance from other border services officers.

592 The grievor said that he felt uncomfortable. He said that he reached out, took Mr. Tse‑Chun by the shoulder, grabbed Mr. Tse‑Chun’s jacket, stopped Mr. Tse‑Chun from turning and faced Mr. Tse‑Chun forward, and directed Mr. Tse‑Chun to keep going. The grievor said that he maintained his hold on Mr. Tse‑Chun’s jacket for the second or two it took to get Mr. Tse‑Chun to the door of the land border office; then the grievor let go.

593 The grievor said that, once inside, he walked beside Mr. Tse‑Chun and told Mr. Tse‑Chun to come along. The grievor said that Mr. Tse‑Chun’s demeanour was the same but that Mr. Tse‑Chun seemed less anxious. The grievor walked Mr. Tse‑Chun to the customs secondary area and asked Mr. Tse‑Chun to sit in one of the chairs.

594 The grievor said that, by then, the primary-inspection-lane booths were occupied by other border services officers and the centre booth was occupied by Supt Anderson, and they were preparing to clear a scheduled bus. the grievor assumed that border services officers had come because of his call for assistance.

595 The grievor walked over to Supt Anderson and said needing Supt Anderson help. The grievor explained that he had a fellow who was being difficult and who could not see. Supt Anderson gave the grievor a confused, frustrated look and asked, “What you mean, he cannot see?” The grievor replied, “Exactly.” Supt Anderson and the grievor discussed calling the local RCMP as the RCMP handled commercial drivers. Supt Anderson and the grievor did not want to get into the issue of the required type of driver’s license.

596 Supt Anderson told the grievor to talk to Mr. Tse‑Chun again. The grievor said that Mr. Tse‑Chun was being difficult. The grievor believes that Supt Anderson arrived after the grievor brought Mr. Tse‑Chun to the secondary inspection area. The grievor said that Mr. Tse‑Chun was angry, that Mr. Tse‑Chun made a series of unfounded statements, that Mr. Tse‑Chun seemed like grabbing at reasons and that Mr. Tse‑Chun was trying to inconvenience the grievor. The grievor said Mr. Tse‑Chun was loud and curt and still talking with his hands and that Mr. Tse‑Chun was not answering. Mr. Tse‑Chun was agitated and was not calming down.

597 The grievor said that scheduled bus passengers were approaching the booth and watching the commotion and that at least one border services officer turned around. The grievor recognized that the events were disruptive to others and that the immigration area was clear. It was a quieter area. He asked Mr. Tse‑Chun to sit in that area. The grievor said that usually some border services officers were in that area. The grievor said that he did not notice whether any border services officers were present. The grievor said that Mr. Tse‑Chun was frustrated and that Mr. Tse‑Chun was still talking with his hands. The grievor walked over and talked to Supt Anderson and said needing Supt Anderson’s help as Mr. Tse‑Chun was being difficult. Supt Anderson closed her computer, shook her head, sighed, appeared frustrated and walked with the grievor in a quick, determined fashion. On entering, Supt Anderson stated that she was the superintendent and asked about the problem. The grievor said that Mr. Tse‑Chun jumped out of his seat and recounted what the grievor had said. The grievor believed that language and culture had something to do with the issue and that Mr. Tse‑Chun was difficult to read. Supt Anderson held up the bus‑traffic instructions (Exhibit E‑11) and said what they were, that the grievor was doing his job and that Mr. Tse‑Chun had to do what the grievor said. Supt Anderson cut off Mr. Tse‑Chun by talking over him. Supt Anderson had to speak twice. Mr. Tse‑Chun replied, “Yes, OK.” Supt Anderson said, “What is this? You cannot see?” The grievor said that Mr. Tse‑Chun talked about the clearance of Mr. Tse‑Chun’s bus and how frustrated Mr. Tse‑Chun was and said, “Why me? It is not fair.” Supt Anderson asked if Mr. Tse‑Chun could see. Mr. Tse‑Chun replied that he could. She asked Mr. Tse‑Chun why he told the grievor about not being able to see. Mr. Tse‑Chun smiled and shrugged his shoulders. Supt Anderson said, “OK then, enough. Do what the border services officer asks you and continue on your way.” Mr. Tse‑Chun replied, “OK.”

598 The grievor said that he walked toward the waiting lounge of the land border office. In the 15 feet of walking side by side with Mr. Tse‑Chun, the grievor mentioned trying to do his job. The grievor extended his hand and said, “No hard feelings?” Mr. Tse‑Chun replied, “No.” The grievor and Mr. Tse‑Chun parted company near the washroom inside the lounge. Mr. Tse‑Chun returned to the bus.

599 The grievor said that he noticed that Supt Anderson stopped to talk to two women standing outside the washroom in the land border office. The grievor told Supt Anderson that he was going back to the traffic office. He did so and went on to his next duty.

600 The grievor said that Mr. Tse‑Chun’s facial expressions, Mr. Tse‑Chun’s frowning and staring, Mr. Tse‑Chun’s tight lips and flared nostrils, Mr. Tse‑Chun’s use of his feet and his hands, and Mr. Tse‑Chun’s assumption of an aggressive stance when Mr. Tse‑Chun stepped forward and raised his hands caused the grievor to believe witnessing pre‑assault cues. The grievor said that Mr. Tse‑Chun had a heightened level of stress. With his training, the grievor saw that the situation was escalating and that there was a risk as Mr. Tse‑Chun raised his hands, was staring and appeared anxious.

601 The grievor said that he used diffusion techniques when Mr. Tse‑Chun first said that no E‑311 cards were needed. The grievor said having used the “time and distance” method and having retrieved the bus‑traffic instructions (Exhibit E‑11) to show Mr. Tse‑Chun that it was common practice.

602 The grievor said that he attempted to inform Mr. Tse‑Chun again and that, when Mr. Tse‑Chun mentioned not being able see, the grievor tried to explore that verbally. When that went nowhere, the grievor removed Mr. Tse‑Chun from the group to avoid public exposure and to elicit compliance. It did not achieve the desired effect. The grievor said having given Mr. Tse‑Chun an opportunity to answer and explain and having used open-ended questions to allow Mr. Tse‑Chun to explain what was troubling him.

603 The grievor has occupational first-aid training. He had never before encountered a driver at a border crossing who said that he or she could not see. The grievor has seen a driver crash through a border crossing after suffering a stroke or diabetic shock, shortness of breath, or a heart attack. The grievor considers vision difficulty, pupil size and dilation when making a first‑aid assessment.

604 The grievor said that, during the investigation, he was advised that the allegations involved excessive force against Mr. Tse‑Chun. The grievor stated that he understood excessive force in the following terms: section 24 or 25 of the Criminal Code authorizes a peace officer to use force; a border services officer is defined as a peace officer in section 2; sections 25 and 26 outline the use of force and excessive force; the force used must be reasonable given the circumstances — any more is excessive —; and there are penalties.

605 The grievor said that “excessive force” is a commonly misused term. He said that excessive force could be determined only by Crown counsel and technical trainers from the use-of-force section, as they were qualified. Crown counsel would examine the elements of the offence, and determine whether the test was met of whether excessive force had been used. The grievor admitted that he was not a use-of-force expert. The Agency uses terms such as “unjustified” or “unreasonable” to describe excessive force. The grievor said that the term “unnecessary force” was not used during the investigation.

606 The grievor was questioned about the changed conclusion of his statement (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” He said that section 37 of the Criminal Code outlines his right to protect himself from an assault and that he is not required to wait for indicators. Steps can be taken to protect oneself. The grievor said that situations often arise in which a border services officer has the choice to arrest or detain a subject, but the border services officer is not required to arrest or detain anyone. As long as the self‑protection technique used was reasonable in the border services officer’s perception, it does not matter if it was a trained technique.

607 The grievor testified that he used very little force, if any. He said that he did not push or pull Mr. Tse‑Chun. The grievor said that he took hold of Mr. Tse‑Chun’s clothing to prevent Mr. Tse‑Chun from turning toward the grievor. The grievor said that he locked his elbow so that Mr. Tse‑Chun could not close the distance between them. The grievor said that it was almost as if he had put his hand up to block Mr. Tse‑Chun, who then chose to walk into the grievor. The grievor testified that Mr. Tse‑Chun did not raise the issue of force inside the land border office. The Agency informed the grievor that Mr. Tse‑Chun did not make a complaint, which Supt Ashikian also told the grievor. The grievor said that no excessive-force complaints were made that night to Supt Anderson.

608 The grievor, referring to the IM/IM, testified that he judged Mr. Tse‑Chun’s behaviour as cooperative when the grievor boarded the bus and was at the officer presence stage and then moved into the verbal intervention stage. At times, Mr. Tse‑Chun went into the realm of the non-cooperative. Several times, Mr. Tse‑Chun went into or came close to being resistant and displayed pre-assault cues when the grievor escorted Mr. Tse‑Chun to the land border office.

609 The grievor was trained that when a person displays elevated anxiety or stress to not let the person turn toward him, as the area in front of the face is called the “danger” or “kill” area, and to use defensive measures at those times. The grievor said that grabbing Mr. Tse‑Chun’sjacket was the least the grievor could have done to prevent something from occurring. The “empty hand soft” technique includes grabbing an arm, a wrist or an elbow or using joint manipulation to gain compliance. Taking hold of a jacket is less of an escalation than any of those actions.

610 The grievor said that he did not fill out a use-of-force report. He said that he would if he arrested or detained someone or if he considered that he had used force, such as taking physical control of a body part to cause pain through a hold or a lock. He said that he would not fill out the report unless an arrest or detention was made that resulted in a physical altercation.

611 The grievor stated that he flinched when he extended his arm and grabbed Mr. Tse‑Chun’s jacket. The grievor held on because Mr. Tse‑Chun was turning. It was a quick reaction. The grievor said that he was not sure what Mr. Tse‑Chun would do next. The grievor has not been in many altercations at work and in his life. He said that border services officers are trained to not wait until they are assaulted. He said that, if you fail to act quickly and are assaulted as a result, it is officer-imposed jeopardy and is not a desirable situation.

612 The grievor was asked to explain the two conclusions of his statement (Exhibit E‑9, Appendix A), one of which was handwritten on the date of his interview during the investigation (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” The first conclusion was written before he provided his statement to Supt Ashikian. The handwritten conclusion was written on April 12, 2007, during Supt Ashikian’s interview with Off. Sullivan present.

613 During the interview, Supt Ashikian told the grievor about having an account from a director of what had happened in the incident, that he accepted it in its entirety without question, and that, more than likely, the grievor would be found at fault with respect to the allegations. Supt Ashikian said having read the grievor’s statement (Exhibit E‑9, Appendix A) and that the grievor’s conclusion did not serve the grievor well. The grievor said being surprised by that and asked for clarification. Supt Ashikian told the grievor that the grievor was defending his actions and not accepting responsibility. Supt Ashikian offered the grievor the opportunity to change the conclusion of his statement and suggested that, if the grievor accepted some responsibility, it would go a long way toward the Agency being less harsh when it took disciplinary action against the grievor. The grievor said that he was shocked and that he looked at Off. Sullivan in disbelief. The grievor said that, in his experience as an investigator, he always provided a warning under the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), and that he always read a secondary caution about a promise or favour or a fear or threat affecting the statement. The grievor considered such things contrary to what was fair and right. The grievor said that Supt Ashikian’s conduct during the interview was not impartial. The grievor said that it was a high-pressure interview. The grievor said that Supt Ashikian said nothing more other than that the grievor would be found at fault as Ms. Hellsten’s version of events was more accurate than the grievor’s version. The grievor wished to speak with Off. Sullivan in private for advice. The grievor was provided that opportunity.

614 The grievor and Off. Sullivan went to a separate office in the land border office. The grievor could not recall the advice he received from Off. Sullivan but the gist of it was that it was the grievor’s decision but that it made sense to admit that there were other ways to deal with the incident. The grievor said that he thought that there were better ways of doing things. Being humble with the suggestion that better ways were possible, he wrote the following passage on page 6 of Supt Ashikian’s notes: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.”

615 The grievor said that he felt that Supt Ashikian somewhat played up the issue of the hockey team containing children and that the passengers were traumatized, which played on the grievor’s emotions. The grievor’s intent was to accept some responsibility for coping, learning and handling such a situation in a better way. The grievor said that he did not have much time and that he was under immense pressure.

616 The grievor was asked whether in hindsight he would have done anything differently during the incident. He replied in the affirmative. He acted at the time at issue to the best of his ability. He said that, when he took his statement (Exhibit E‑9, Appendix A) back, Supt Ashikian had him change the conclusion concerning the grievor’s conduct (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” At that time, the grievor did not consider that it made much of a difference, but it might have.

617 The grievor said that he could not recall seeing any documents at the interview other than Supt Ashikian’s handwritten notes. Supt Ashikian referred to documents from time to time, but the grievor did not recall seeing them. Supt Ashikian told the grievor that an observer could be present.

618 The grievor stated that nothing happened until months later, when he was asked to attend a first pre-disciplinary meeting with Chief Clarke. The grievor did not recall the date of the meeting. He was phoned or emailed and asked to come to a meeting. He recalled discussing the allegation and trying to explain the issues and discrepancies. The grievor asked for the six pages of interview notes, which he said would help answer his questions. Chief Clarke said that he would try to obtain a copy.

619 The grievor recalled Chief Clarke explaining how the findings were coming along and mentioning that Mr. Tse‑Chun’s conduct was cooperative. The grievor said that that caught him off guard as Supt Anderson was in attendance when he dealt with the driver in the land border office on October 22, 2006. The grievor was upset, shocked and confused. He said that Chief Clarke should question Supt Anderson, as Supt Anderson had been supportive in the past.

620 The grievor recalled that, at one meeting, he was allowed to review a vetted copy of the investigation report (Exhibit E‑9). He recalled Chief Clarke asking him what he had to say and that he was anxious, nervous and overwhelmed as the document was large, and so were the issues. The grievor did not feel that he could give due attention to the investigation report in the time he was given. He thought that the investigation should have revealed all the facts, and he considered the investigation report an accurate representation of what actually transpired. He felt that he had no choice or options to influence the process. He recalled stating that perspectives more than likely had much to do with the discrepancies. He said that he made assumptions and suggestions and that he did not feel equipped to give a thorough answer. He did not have any answers at that time as he had not run the investigation and had not had time to digest the information in the report. He is not sure whether this happened at the first pre-disciplinary meeting, at the second one or at both.

621 The grievor was asked to attend a second pre-disciplinary meeting with Chief Clarke. The purpose was to follow up on what Chief Clarke had brought up at the first meeting. Chief Clarke said that the record of interview would not be provided. The grievor was concerned because the notes accurately reflected what he told Supt Ashikian. The grievor said that Supt Brezden visited Supt Anderson and expressed the grievor’s concerns. The grievor believes that Supt Anderson changed some but not all of her statements to reflect what the grievor recalled. The grievor wondered why Supt Anderson changed only some of her statements. The grievor said that he made some assumptions, which he kept to himself.

622 The grievor recalled that, at one of the meetings with Chief Clarke, an allegation of untruthfulness surfaced, and Chief Clarke asked questions. The grievor said that the allegation was made because the grievor’s version of events differed from those of the witnesses.

623 The grievor explained that he had been truthful, and he was asked to explain the version differences. He said that there had to be a better way than asking him to explain it. He said that he worked with a whole team at the Agency. He said that he did not recall specific differences. He said that Chief Clarke gave him the opportunity to read the vetted investigation report (Exhibit E‑9) and to comment. The grievor said that all he could say was that it was a matter of perspective. He said that he did not call anyone untruthful but that different people observing an event will give different accounts of it. He said that he left the meeting feeling overwhelmed and stymied by the result.

624 The grievor said that he was terminated at the next meeting and that he was never provided with the discrepancies between his statement (Exhibit E‑9, Appendix A) provided in the investigation and those of the witnesses. He was not provided with any of the witnesses’ original statements, but he was provided with Supt Ashikian’s report (Exhibit E‑9) and Supt Ashikian’s accounts of his interviews.

625 The grievor complained to the Agency’s access-to-information branch about the delay in providing his requested disclosure. The grievor said that he did not see Supt Anderson’s statement of mid-December 2006 (Exhibit E‑5) until he received the access-to-information disclosure. The grievor believes that Chief Clarke gave him verbal information but nothing that referred to the discrepancies. The grievor said that Supt Ashikian gave him no documents in February 2007. The grievor said that the only document generated contained the notes of his interview. He said that he requested the record of the interview. He said that Supt Ashikian gave him no documents at the April 2007 meeting. The grievor could not recall any documents being given to him to review but recalled Supt Ashikian reading from documents. The grievor said that he needed Supt Ashikian’s notes to go forward with Chief Clarke. The grievor said that Supt Ashikian took six pages of notes, including the grievor’s amended conclusion (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.”

626 The grievor agreed that, in hindsight, there could have been different ways to handle the incident, given the statements of the witnesses. He said that that was his intent in taking Supt Ashikian’s advice. The grievor never suggested that any witness statements were more accurate than his. He has said from day one that everyone is entitled to an opinion and a perspective based on his or her experience, frame of reference, prejudices, career, and different viewpoints. He never indicated that anyone’s statement was more bona fide than his own.

627 The grievor took issue with the following of Supt Ashikian’s notes:“The Respondent stated that he was side tracked [sic] by the bus driver’s claim of not being able to see and this led him to an incident with the bus driver which was not what he had intended.” The grievor said that he was not sidetracked at any time. He said that he took in all the factors and dealt with the issues. He said that he had no choice but to follow up on the vision issue and suspend the customs issue when it arose in his dealings with Mr. Tse‑Chun. The grievor said that border services officers have no specific intention in an examination but that they deal with the facts to the best of their abilities and training, keeping in mind a successful outcome to each examination.

628 The grievor took issue with the note that stated that he requested an opportunity to re-write his conclusion. He said that Supt Ashikian suggested that the grievor’s conclusion did not serve the grievor well and that it would serve the grievor better if the grievor accepted responsibility. The grievor said that he accepted responsibility for anything that he could improve, which is a huge difference from what Supt Ashikian noted in his report (Exhibit E‑9). The grievor said that the report did not record his true words and that it paraphrased something that he did not say. He denied that he said the contents of paragraph 12(e) on page 15, which reads as follows:

…

e) The RESPONDENT was provided an opportunity to absorb the information and findings gathered through witness interviews before answering further to the allegation. The RESPONDENT stated that he was side tracked by the driver’s claim of not being able to see and this led him to an incident with the bus driver which was not what he had intended. The RESPONDENT requested an opportunity to rewrite the ‘conclusion’ to his written incident report. The RESPONDENT stated verbally, as well as wrote in his amended report, that he accepts full responsibility for his role in the incident. Further, he agrees that the witness accounts are a more accurate reporting of the incident.

…

629 The grievor reviewed page 14 of Supt Ashikian’s report (Exhibit E‑9). He did not recall telling Supt Ashikian that Mr. Tse‑Chun was laughing, contrary to what is noted in paragraph 12(b). The grievor said that he described pre-assault cues to Supt Ashikian. The grievor did not recall saying, contrary to what Supt Ashikian reported in paragraph 12(b), “He stated that he took hold of the bus driver’s jacket from outside the bus to the driver’s bus facility entrance door, some 25 feet away.”

630 The grievor did not recall being given any documents but recalled Supt Ashikian reading aloud from some documents. When the grievor was asked to comment on statements, he said that they were the perceptions of the writers. The grievor was asked whether Ms. Hellsten was lying. The grievor replied that Ms. Hellsten was not and that it was Ms. Hellsten’s perception and recollection. The grievor said that people perceive things differently and that some focus on actions rather than descriptions. The grievor said that he tried to explain this to Supt Ashikian. The grievor said that Supt Ashikian accepted Ms. Hellsten’s version of events, which the grievor found difficult and overwhelming.

631 The grievor reviewed paragraph (d) on page 15 of Supt Ashikian’s report (Exhibit E‑9). The grievor said having never received a complaint letter signed by Mr. Tse‑Chun.

632 The grievor said that he became aware of an excessive-use-of-force investigation at the beginning of the interview in April 2007.

633 The grievor stated that he first discussed the incident with Supt Brezden after one of the meetings with Chief Clarke. The grievor said that a trusted member of his team chose to leave out critical information supporting the facts. The grievor talked to Supt Brezden, who asked how the interview went. The grievor said that he expressed frustration with a critical incident being left out. The grievor said that he had hoped that the witnesses’ recollections would be better.

634 The grievor said that it was apparent to him that Supt Brezden’s information would be of tremendous value. Supt Brezden did not want something to happen that was not right. The grievor reported that Supt Brezden intended to speak to Supt Anderson and explain that perhaps Supt Anderson needed her memory refreshed in that Supt Brezden specifically recalled Supt Anderson discussing the incident and how difficult Mr. Tse‑Chun had been acting.

635 The grievor believed that it was possible to testify independently and was shocked that, even though he was on Team 7, nobody on that team had approached him. The grievor tried to find anyone who had heard or seen something on the night of the incident. The grievor spoke with another border services officer that night but was sure that Supt Anderson did and that she would do the right thing. Supt Brezden wrote notes and spoke with people, including Chief Clarke and Mr. Scoville. The grievor said that, the next day, before anything was done with Supt Brezden’s evidence, the grievor was terminated.

636 The grievor said that he was shocked that the supporting evidence was not deemed sufficient to stop the termination of his employment proceedings. He said that he was given notice to come to a disciplinary meeting, without any follow up, after a year-long process that was accelerated at the end.

637 The grievor said that he became aware of Off. Duthie’s involvement after at least several weeks had passed since the grievor’s termination. The grievor was not sure whether Off. Duthie called, emailed or contacted the grievor in Facebook, as the grievor received support from other border services officers from Pacific Highway Crossing. The grievor said that Off. Duthie was a new employee, who had been assigned to immigration. The grievor and Off. Duthie interacted sometimes at work but were not friends.

638 The grievor was asked to comment on the following statement in the termination letter (Exhibit E‑18):“In your written report of the incident, you inform that you were ‘calm and professional towards the driver.’ You further inform that the driver was ‘argumentative’, ‘irascible’ and ‘berated you in front of the passengers.’” The grievor confirmed that Mr. Tse‑Chun was argumentative in that for the entire time Mr. Tse‑Chun challenged everything the grievor told Mr. Tse‑Chun about the bus‑traffic instructions (Exhibit E‑11), except when Supt Anderson dealt with Mr. Tse‑Chun. The grievor said that Mr. Tse‑Chun was irritated and hot tempered and that Mr. Tse‑Chun was mostly hot tempered outside the bus and inside the land border office. The grievor described Mr. Tse‑Chun as difficult or as trying to be difficult inside the bus, with some embarrassment, which turned into more heated conduct and anger off the bus.

639 The grievor explained that, by “berated,” he meant that Mr. Tse‑Chun said to the grievor, “Why are you doing this? You are the only one. I don’t have to, this is ridiculous.” The grievor said that those types of statements are not conducive to a cooperative customs clearance process because they challenge the procedure, the border services officer and the border services officer’s authority.

640 The grievor confirmed that Mr. Tse‑Chun waved his hands outside the bus and that Mr. Tse‑Chun talked with his hands inside the bus. At one point, Mr. Tse‑Chun brought his hand up toward the grievor and shook it. The grievor said not being able to recall if Mr. Tse‑Chun’s hand was open or closed. The grievor said that the use-of-force training was not specific to open or closed hands but to proximity.

641 I note that the hearing was adjourned in July 2011 during the grievor’s examination‑in-chief. I was led to understand that the grievor’s examination was not completed. When the hearing resumed in February 2012, I was advised that no further examination-in-chief was required.

b. Cross-examination

642 The grievor admitted to taking use-of-force training on more than one occasion, which included IM/IM training. He learned how to deal with agitated, anxious and resistant people.

643 The grievor confirmed that he wrote his statement (Exhibit E‑9, Appendix A), attached to Supt Ashikian’s report (Exhibit E‑9). The grievor wrote his statement without referring to the photographs showing the land border office (Exhibit G‑2). The bus was parked away from the curb, beside some shrubs.

644 The grievor was not aware of a legal requirement to fill out E‑311 cards. However, once a border services officer demands the cards, bus passengers must provide them. The passengers must answer questions and report in the manner prescribed by the minister. The grievor stated that border services officers were instructed to collect E‑311 cards at Pacific Highway Crossing.

645 The grievor did not believe that he was permitted or that he had the discretion to clear a bus with verbal declarations. That is contrary to the evidence of the witnesses, including Off. Sullivan’s testimony, and is contrary to how the bus was cleared by another border services officer. The grievor could not recall whether he cleared the bus. He said that he would not be surprised if another border services officer cleared the bus by using verbal declarations rather than E‑311 cards.

646 During the incident, the grievor had no personal knowledge of whether Mr. Tse‑Chun had travelled over the border between June 26 and October 22, 2006. The grievor agreed that an appropriate approach would be to give the bus‑traffic instructions (Exhibit E‑11) to a bus driver unaware of them, if E‑311 cards were not available. The grievor said that that procedure had been in effect since 2000. The bus‑traffic instructions (Exhibit E‑11) bear their printing date.

647 The respondent put to the grievor all the material differences between the grievor’s testimony and that of the witnesses, including Ms. Hellsten, Ms. Backman and Mr. Tse‑Chun.

648 The grievor said that Mr. Tse‑Chun said not needing the E‑311 cards because Mr. Tse‑Chun crossed the border “all the time.” The grievor denied becoming or being aggressive towards Mr. Tse‑Chun when Mr. Tse‑Chun told the grievor about not having the E‑311 cards.

649 The grievor was cross‑examined about the contents of Ms. Backman’s statement (Exhibit E‑2), and the grievor denied being aggressive.

650 The grievor was cross-examined on the contents of Mr. Tse‑Chun’s statement to Supt Ashikian (Exhibit E‑20), which stated that the grievor yelled at Mr. Tse‑Chun and told Mr. Tse‑Chun that Mr. Tse‑Chun was wasting the grievor’s time.

651 The grievor was cross-examined about the contents of Ms. Hellsten’s statement (Exhibit E‑1). The grievor replied having denied lecturing Mr. Tse‑Chun in a condescending tone and denied having had an inappropriate conversational tone.

652 The grievor admitted that, when he entered the bus, he said, “Declaration cards.” He stated that, rather than getting into a conversation, he got off the bus, took the bus‑traffic instructions (Exhibit E‑11) from the land border office wall, re‑boarded the bus and told Mr. Tse‑Chun, “Here you go.” The grievor denied being aggressive to Mr. Tse‑Chun. The grievor was confronted with Ms. Backman’s statement (Exhibit E‑2), which stated that the grievor re-entered the bus in an aggressive and bullying manner. The grievor denied being aggressive but stated having been “short and to the point.”

653 The grievor denied that he was aggressive and inappropriate when he provided Mr. Tse‑Chun with the bus‑traffic instructions (Exhibit E‑11). The grievor said having conversed with Mr. Tse‑Chun about Mr. Tse‑Chun’s inability to see.

654 The grievor was confronted with Ms. Hellsten’s statement (Exhibit E‑1) that the grievor turned to the passengers and asked if they were concerned about safety. The grievor denied having displayed any inappropriate attitude toward Mr. Tse‑Chun and denied embarrassing Mr. Tse‑Chun in front of all the passengers. The grievor said having entered into a conversation about this and having taken Mr. Tse‑Chun off the bus to alleviate Mr. Tse‑Chun’s embarrassment. The grievor denied purposely embarrassing Mr. Tse‑Chun. The grievor said having merely replied to a comment from a woman near the front of the bus (likely Ms. Backman).

655 The grievor was confronted with Ms. Backman’s testimony and statement (Exhibit E‑2) that the grievor asked, “How do you people feel about the bus driver?” The grievor agreed that, had he said those words, it would have been inappropriate, but he denied saying them. The grievor said that he responded to a female voice from behind him. He said that it is easy to see where this confusion came from; others may not have heard the woman’s comment. He speculated that other passengers might have thought that the grievor turned and started a conversation when he was actually replying to a passenger.

656 The grievor admitted that, as Ms. Hellsten stated in her statement (Exhibit E‑1), the grievor turned to the passengers and asked if they were concerned for their safety. He admitted saying that later in the conversation. The grievor denied Mr. Tse‑Chun’s allegation that the grievor yelled at Mr. Tse‑Chun or that the grievor intimidated or embarrassed Mr. Tse‑Chun.

657 The grievor said that border services officers normally do not take drivers off buses. However, at one point, the grievor asked the passengers if they were safe, as they were commenting as to whether they felt safe, because the issue was that Mr. Tse‑Chun could not see. The grievor was stressing the reasonableness for focusing on safety. It was time to exit the bus as the grievor was getting nowhere and the situation was intensifying, so the grievor was going to involve Supt Anderson.

658 The grievor was asked about the testimonies of three witnesses, which differed from his. The grievor said that Mr. Tse‑Chun rubbed his eyes, was unfocused, held the bus‑traffic instructions (Exhibit E‑11) at different distances and stated not being able to read them. The grievor asked why Mr. Tse‑Chun could not read the bus‑traffic instructions. The grievor explored the situation and did not receive an explanation, such as that the print was too small, that Mr. Tse‑Chun did not have his glasses or that Mr. Tse‑Chun could not read the bus‑traffic instructions. Mr. Tse‑Chun simply stated not being able to see. The grievor said that Mr. Tse‑Chun seemed surprised about not been able to see, which piqued the grievor’s interest. The grievor said that Mr. Tse‑Chun’s behaviour was escalating without explanation. The grievor said that Mr. Tse‑Chun stood and faced the grievor. The grievor and Mr. Tse‑Chun were going back and forth about being able to see. The grievor said that he could see how a witness could have viewed that exchange as badgering. The grievor said not having been smiling, having his back to the passengers and having probably appeared officious to anyone. The grievor needed to know that Mr. Tse‑Chun was safe to continue.

659 The grievor was questioned about Ms. Backman’s testimony and her statement (Exhibit E‑2) that the grievor turned to the passengers and said, “How do you feel about a bus driver who can’t read? You should all ask for your money back.” The grievor denied making that statement.

660 The grievor was pointed to the differences in the witnesses’ testimonies about Mr. Tse‑Chun’s conduct on the bus and the grievor’s evidence that Mr. Tse‑Chun was irascible and aggressive and that Mr. Tse‑Chun was berating the grievor.

661 The grievor admitted that Mr. Tse‑Chun did not resist when the grievor asked Mr. Tse‑Chun to leave the bus and follow the grievor.

662 The grievor was questioned about the difference between what he and Mr. Tse‑Chun said about what happened inside and outside the bus. The grievor did not agree to having grabbed Mr. Tse‑Chun about a metre from the bus. The grievor said that Mr. Tse‑Chun was animated, that Mr. Tse‑Chun was waving his hands and was not calming down, and that Mr. Tse‑Chun’s level of aggression was increasing. The grievor said having warned Mr. Tse‑Chun that Mr. Tse‑Chun could be arrested. The grievor said having kept Mr. Tse‑Chun at arm’s length and not having guided Mr. Tse‑Chun. The grievor completely disagreed with Mr. Tse‑Chun’s version of events. The grievor said having been a couple of metres from the door when the grievor took hold of Mr. Tse‑Chun’s jacket.

663 The grievor was cross-examined about the testimonies of Ms. Hellsten and Ms. Backman about Mr. Tse‑Chun’s behaviour on the bus, which was essentially that Mr. Tse‑Chun was quiet and cooperative. The grievor did not accept the evidence that Mr. Tse‑Chun was quiet.

664 The grievor was cross-examined about Supt Anderson’s statement of September 16, 2007 (Exhibit E‑6) and testimony. The grievor said that Supt Anderson testified that Mr. Tse‑Chun was disruptive and aggressive in Supt Anderson’s dealings with Mr. Tse‑Chun inside the land border office. The grievor said that it was an accurate characterization of Mr. Tse‑Chun’s behaviour at the end of Supt Anderson’s dealings with Mr. Tse‑Chun.

665 The grievor conceded that, if Mr. Tse‑Chun’s testimony were taken as true, there was no need to use force and that the force that the grievor used would be considered excessive.

666 The grievor said that he spoke with Mr. Tse‑Chun inside the land border office about having another bus driver take over. The grievor said that other situations have occurred in which bus drivers have acted out, were engaged in criminal activity or were inadmissible to Canada. The grievor did not admit to threatening to jail Mr. Tse‑Chun.

667 The grievor was cross-examined about Supt Anderson’s testimony and Supt Anderson’s statements of mid‑December 2006 and September 16, 2007 (Exhibits E‑5 and E‑6) that Mr. Tse‑Chun was receptive. Supt Anderson did not mention in her statement or testimony that Mr. Tse‑Chun demonstrated any behavioural issues. The grievor did not accept that assertion.

668 The grievor said that touching Mr. Tse‑Chun’s jacket or shoulder was nowhere near the force continuum, as it was not a joint lock. The grievor admitted having grabbed Mr. Tse‑Chun’s jacket in self‑protection. The grievor said not having had to keep Mr. Tse‑Chun in front of the grievor and to create distance between the grievor and Mr. Tse‑Chun to avoid a situation of officer‑imposed jeopardy. The grievor said having been able to escalate the force from there had it become necessary. The grievor described it as a low-level countermeasure.

669  The grievor stated that he was not aware of section 58 of the Customs Enforcement Manual, which reads as follows: “58. Officers will, as soon as possible after an event involving use of force, record the details in their Customs Notebook (CE1).”

670 The grievor was cross-examined about his failure to submit the use-of-force report required as follows by section 59 of the Customs Enforcement Manual: “A Use of Force Report (E642) will be completed within 24 hours, or as soon as practical, and submitted it to the shift superintendent after all situations/incidents where force is applied.” The grievor said that a use-of-force report is filled out, along with an “E-350 arrest report.” The grievor said that section 59 of the Customs Enforcement Manual was “grey” and that it depended on the definition of “force.” The grievor initially said that a use-of-force report was required when force was applied in connection with an arrest.

671 The grievor could not recall Mr. Tse‑Chun’s description in Mr. Tse‑Chun’s testimony of the force that the grievor used. The respondent reminded the grievor it was like being picked up as one would a dog. The grievor conceded that, if it was as Mr. Tse‑Chun described, a use‑of-force report would have been required, but the grievor also said that Mr. Tse‑Chun would have been arrested. The grievor said that he did not complete a use-of-force report because he did not arrest Mr. Tse‑Chun; things did not go that far. The respondent pointed out that section 59 of the Customs Enforcement Manual does not refer to arrests but to “. . . all situations/incidents where force is applied.” The grievor said that a border services officer would not use force on someone unless he or she were arresting that person. The grievor did not concede that he used force.

672 The grievor did not mention to Supt Anderson having taken hold of Mr. Tse‑Chun’s jacket. The grievor said he did not even think of it. He said that he and Supt Anderson engaged in an explicit conversation about how difficult Mr. Tse‑Chun was being. The grievor said that Supt Anderson had to shout at Mr. Tse‑Chun because Mr. Tse‑Chun tried to talk over Supt Anderson and that Supt Anderson was frustrated. The grievor said that Supt Anderson told the grievor so, in front of Supt Brezden. The grievor said that Supt Anderson left that out of her statement of mid‑December 2006 (Exhibit E‑5) to Chief Clarke. The grievor said being shocked that Supt Anderson did not support the grievor’s version of the facts. I note that the grievor’s evidence differed from Supt Anderson’s testimony at the hearing and in Supt Anderson’s statements of mid‑December 2006 and September 16 and October 18, 2007 (Exhibits E‑5, E‑6 and E‑7).

673 The grievor was cross-examined about the “defusion” techniques in chapter 3, paragraph 8, of the Traveller Processing Manual (Exhibit G‑3), which states the following:

8. The following actions to avoid when dealing with upset travellers:

• Do not touch or point at the individual
• Do not threaten the person

[Emphasis in the original]

The grievor said that a border services officer can touch a person to prevent an assault. The grievor never said that he would throw Mr. Tse‑Chun in jail. The grievor warned Mr. Tse‑Chun’s that Mr. Tse‑Chun’s would be arrested if Mr. Tse‑Chun did not control his behaviour and said that the grievor was required to say that when reasoning with someone in a use-of-force situation. It was a de-escalation technique and not a threat.

674 The grievor was cross-examined about paragraph 10 of the Traveller Processing Manual (Exhibit G‑3), which reads as follows:

10. Situations of verbal abuse and threats involving the potential for violence should be brought to the immediate attention of the shift superintendent who will monitor the situation and intervene where necessary. Customs officers should utilize their communication skills in an attempt to diffuse all confrontations. The Customs officer should keep detailed notes of the incident in his or her notebook.

The grievor said that the verbal diffusion started with him walking onto the bus and talking to Mr. Tse‑Chun. The grievor said that the dialogue continued the whole time. The grievor did not concede that grabbing Mr. Tse‑Chun’s was inappropriate.

675 The grievor was asked whether he considered appropriate the way he dealt with Mr. Tse‑Chun. The grievor said that it was reasonable in the circumstances, but the grievor would never say that there was no better way of handling it.

676 The grievor was cross-examined about being upset that a manager complained. The grievor was questioned about why he would be upset if he felt that he had acted reasonably. He said that acting reasonably never stops someone from making a complaint and that the complaint process is arduous and stressful.

677 The grievor said that he was afraid that Ms. Hellsten would make a complaint. The grievor said that people perceive things, voice their opinions and fill in the blanks and that the process of examining a complaint is stressful. The grievor said that he has been the subject of past complaints, which have been unsubstantiated; it causes grief.

678 The grievor admitted having told Supt Brezden being worried about another complaint, as documented by Supt Brezden’s email of October 24, 2007 (Exhibit E‑15). For the reasons given at the beginning of this decision, I did not permit the respondent to pursue the substance of the prior complaints about which the grievor was worried or the number of past complaints against the grievor.

679 The grievor admitted in cross-examination that he was told why he was posted to the CANPASS Processing Centre. He stated that his rate of pay was not affected but that he lost statutory holiday pay, overtime and shift differential pay and that clearly he suffered a financial impact from the posting.

680 The grievor said that he prepared the statement (Exhibit E‑9, Appendix A) that he gave to Supt Ashikian shortly before his first meeting on February 20, 2007. The grievor said having done so at management’s request. He met again with Supt Ashikian on April 12, 2007. The grievor did not recall whether Supt Ashikian went through the “Corporate Security and Internal Affairs Division Introduction to Investigation” (Exhibit E‑10), but the grievor knew that Supt Ashikian was conducting the investigation. The grievor signed Supt Ashikian’s notes, made any necessary amendments and signed the notes. The grievor recalled that Supt Ashikian read from some documents. The grievor did not recall the details of the investigation, but he commented on those that he remembered.

681 I have no doubt that Supt Ashikian put all the salient details from the witnesses to the grievor. The grievor admitted that Supt Ashikian gave the grievor an opportunity to explain why the grievor’s version was different. The grievor said that Supt Ashikian told the grievor that, if the grievor changed the conclusion of his statement (Exhibit E‑9, Appendix A), things would look a lot better for the grievor. Neither Off. Sullivan nor Supt Ashikian confirmed that testimony.

682 The grievor was cross-examined about his changed conclusion (Exhibit E‑9, page 6), which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” The grievor was asked how he could have handled the incident more appropriately. He replied that he did not know, other than having another border services officer help him; had that happened, there would be no contention about what took place.

683 The grievor said that he felt under duress when writing his new conclusion (Exhibit E‑9, page 6) for Supt Ashikian, which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” The grievor said that it was not appropriate for Supt Ashikian to ask the grievor to change his conclusion and that the grievor felt like the investigation had not been impartial. The grievor said that Supt Ashikian asked the grievor if the grievor expected Supt Ashikian to question an Agency director and whether the grievor thought that Ms. Hellsten had gotten it wrong. Supt Ashikian asked the grievor how the director could have gotten it wrong and not the grievor. Supt Ashikian asked the grievor if the grievor expected Supt Ashikian to question Ms. Hellsten.

684 The grievor said that Supt Ashikian determined that the grievor was at fault and that the grievor used excessive force and stated that the grievor would have to pay the price. Supt Ashikian told the grievor that, if the grievor changed his conclusion (Exhibit E‑9, Appendix A), the grievor would be better served. The grievor then left the room and discussed everything with Off. Sullivan, who said that it was up to the grievor and that, if the Agency had already made up its mind, the grievor might want to change his conclusion.

685 I note that the grievor’s testimony about the change to his conclusion (Exhibit E‑9, Appendix A) differed from that of Supt Ashikian and Off. Sullivan. The respondent suggested that Supt Ashikian gave the grievor an opportunity to change the grievor’s conclusion but that Supt Ashikian did not suggest a conclusion. The grievor said that Supt Ashikian told him that the grievor would benefit from changing the grievor’s conclusion as the Agency would likely be more lenient.

686 At both pre-disciplinary meetings of September 24 and October 16, 2007, the grievor was provided with an opportunity to review and make additional comments on the investigation report (Exhibit E‑9) and the additional allegation that he had been untruthful during the investigation.

687 The grievor acknowledged (Exhibit E‑21) receiving a copy of the Agency’s Code of Conduct (Exhibit E‑19), the Code of Ethics and Conduct (Exhibit E‑22), the Standards of Conduct booklet and the Conflict of Interest booklet. He signed an “Oath of Allegiance” and “Oath of Office and Secrecy” (Exhibit E‑21). The grievor admitted that he would have read paragraph (f) of the Code of Ethics and Conduct about contact with the public before he signed the acknowledgement of receipt. Paragraph (f) reads as follows:

The importance of courteous, prompt, sensitive and professional service to the public, in your official capacity, cannot be over-emphasized. In the eyes of many clients, you represent not only the CCRA but the entire Canadian Public Service.

Sensitivity to the needs of the public involves being polite, even under difficult circumstances, in times of personal stress, and in the face of provocation that does not involve a violation of the law. You must not make any abusive, derisive, threatening, insulting, offensive, or provocative statements or gestures to, or about, another person.

If you have the type of job in which you sometimes need to overcome an obstinate lack of cooperation on the part of the client, for example if you are a customs or tax official responsible for enforcement, a determined, persistent, professional stance will sometimes be needed on your part.

The actions of persons from outside the CCRA may sometimes be abusive or threatening or even result in personal assault. The CCRA will provide you with protection, support and assistance. You must promptly report full details of any incident to your manager and cooperate in any subsequent investigation.

Additional information can be found in the CCRA’s policy on Abuse, Threats, Stalking and Assaults Against Employees.

688 The respondent suggested to the grievor that the grievor did not comply with the following requirement in paragraph (f) of the Code of Ethics and Conduct (Exhibit E‑22), as the grievor did not report the incident:

…

The actions of persons from outside the CCRA may sometimes be abusive or threatening or even result in personal assault. The CCRA will provide you with protection, support and assistance. You must promptly report full details of any incident to your manager and cooperate in any subsequent investigation.

…

The grievor said that he did not consider the incident worthy of reporting as he had not been threatened. I note that most of the respondent’s witnesses and the grievor’s witness, Off. Sullivan, noted the importance of reporting incidents involving the use of force.

689 The grievor was cross-examined about the Agency’s values — professional values, ethical values, people values and integrity — set out in the Agency’s Code of Conduct (Exhibit E‑19). He was aware of those values. The grievor denied the suggestion of the respondent that the grievor breached those values.

690 The grievor was aware that he was obliged to assist in the conduct of investigations, including those run by Internal Affairs. He was also aware that he could be called to attend in court and that truthfulness was important.

691 The grievor was aware of the following expected standard of conduct set out in the Agency’s Code of Conduct (Exhibit E‑19):

…

At all times, you must be courteous and respectful towards the public and people you work with, even under difficult circumstances such as in times of personal stress and in the face of provocation.

You must never make abusive, derisive, threatening, insulting, offensive or provocative statements or gestures to or about another person.

…

The grievor denied the respondent’s suggestion that the grievor breached that standard of conduct.

692 The grievor was aware that, in serious cases, breaching the Agency’s Code of Conduct (Exhibit E‑19) could result in termination.

c. Re-examination

693 A number of questions were asked that were not the proper subject of a re‑examination as they had already been asked in the grievor’s examination-in-chief, or alternatively did not arise from his cross-examination.

694 The grievor did not believe that the testimony that he allegedly grabbed Mr. Tse‑Chun by the neck was honest. The grievor testified having grabbed Mr. Tse‑Chun by the jacket.

695 The grievor did not believe that Supt Ashikian’s testimony was honest that travellers are allowed a $50 exemption when they return to Canada after less than24 hours in the U.S.

696 The grievor stated that buses are processed one at a time and that, at the time of the incident, he was the only border services officer working that area. He affirmed that he was directed to gather E‑311 cards and that, if they were not gathered, a memo would be issued. He said that the night shift bundled up the E‑311 cards and sent them to the Agency’s headquarters in Ottawa. The grievor believed that the E‑311 cards’ information was used as intelligence. He believed that the E‑311 cards were prescribed by the minister. The grievor was not aware that using the E‑311 cards was discretionary.

697 The grievor said that Ms. Backman’s statement (Exhibit E‑2) that the grievor said, “How do you feel that the bus driver can’t read? You should all ask for your money back,” was not in the statements of Mr. Tse‑Chun (Exhibit E‑20) or Ms. Hellsten (Exhibit 1).

698 The grievor said that he saw Mr. Tse‑Chun present pre-assault cues outside the bus, which led the grievor to believe that Mr. Tse‑Chun might have had an issue.

699 The grievor said that there were maybe 20 steps from the bus to the land border office.

700 The grievor said that, after the incident, he and Supt Anderson bantered about Mr. Tse‑Chun after Mr. Tse‑Chun left the land border office. The grievor said that Supt Brezden was also present. However, Supt Brezden’s testimony disagreed, as Supt Brezden stated that Supt Brezden conversed with Supt Anderson only a couple of days after the incident, at the grievor’s request.

701 The grievor maintained that he did not exert any force by placing his hand on Mr. Tse‑Chun’s shoulder. The grievor said having neither pushed nor pulled Mr. Tse‑Chun. The grievor had his elbow locked so that, if Mr. Tse‑Chun turned around, Mr. Tse‑Chun would push against a solid object (the grievor’s elbow).

702 The grievor claimed that he did nothing to conceal his actions. The grievor stated that he had been truthful and honest in reporting the incident.

703 The grievor recalled Supt Ashikian reading excerpts of the statements of the witnesses during the interview on April 12, 2007.

704 The grievor explained the difference between his testimony and those of the witnesses. He stated that two people could be in the same room, witness an incident unfold and report it differently. Such a demonstration occurred during his training at the Agency’s Rigaud Training Centre. When Supt Ashikian confronted the grievor with the differences, the grievor’s only explanation for why they were different was that a difference of perception had occurred. People see things differently based on their life experience, ability to perceive and bias, depending on what part they play in an incident. The grievor said that inconsistencies present themselves if a delay occurs.

705 The grievor testified that, when he worked as a border services officer, he accepted overtime shifts when they were offered and that he received additional pay. He worked normal business hours at the CANPASS Processing Centre. He believes that his salary dropped by $15 000 to $20 000 per year on his T4 tax receipt after he was posted to the CANPASS Processing Centre as he did not receive overtime, shift differential or statutory holiday pay. It affected his family, as he was the sole income earner.

706 The grievor indicated that the full notes taken of his interview were not attached to Supt Ashikian’s report (Exhibit E‑9).

707 The grievor stated that the documents in Exhibit E‑21 — the oath of allegiance and his receipt of the Agency’s Code of Conduct (Exhibit E‑19), the Code of Ethics and Conduct (Exhibit E‑22), the Standards of Conduct booklet and the Conflict of Interest booklet — were not shown to him during his interview. However, it is clear that he signed an acknowledgement of receiving them. He said that no suggestion was made that he breached his oath of allegiance.

12. Sgt Johnston’s testimony

708 Sgt Johnston is a sergeant with the Vancouver Police Department. He has extensive experience as a police officer and in analyzing the use-of-force by police officers, as illustrated by his resume (Exhibit G‑1) and testimony. Through his business, Defensive Tactics Institute Inc., he is involved in use-of-force training and policy development. Sgt Johnston was qualified to give expert testimony in the use of force. He prepared a written opinion (Exhibit G‑4) after considering the investigation report (Exhibit E‑9). He also gave testimony explaining the IM/IM and different scenarios that would or would not permit a border services officer to use force. He opined as follows at page 6 of his written opinion:

…

If one accepts the perception and account of [Mr. Tse‑Chun] as fact, then excessive force was used by BSO Newman in dealing with him as a “Cooperative” subject, since no physical force is appropriate under such circumstances.

On the other hand, if one accepts the perception and account of BSO NEWMAN, then the force that he used was lawful, reasonable and justified – it was also minimal in the scheme of intervention options. BSO NEWMAN would have been justified in using more force that he did in dealing with a “Resistive” – “Combative” subject.

…

709 Sgt Johnston testified that, when examining a use of force, it is most important to focus on the behaviour during an incident and not before or after the incident, as behaviour can change. Sgt Johnston discounted the information of Ms. Backman and Ms. Hellsten, as their perceptions of what occurred outside the bus were influenced by what occurred inside the bus. Unlike the grievor, they are not trained observers. I note that this type of testimony trenches on the adjudicative function as it is an adjudicator’s proper function to find facts.

710 Sgt Johnston testified that many police forces, such as the RCMP, would not require an officer to report the touching of a bus driver in the circumstances represented by the grievor in his statement (Exhibit E‑9, Appendix A) to Supt Ashikian. Sgt Johnston said often touching individuals when engaged in police work. However, in cross-examination, Sgt Johnston conceded that, given the Agency’s policy as set out in section 59 of the Customs Enforcement Manual, the grievor had an obligation to submit a use-of-force report after the incident.

D. Summary of the arguments

1. For the respondent

711 The respondent stated that the grievor used excessive force with Mr. Tse‑Chun and that the grievor was dishonest during the investigation. The grievor’s dishonesty during the investigation broke the bonds of trust required by the employment relationship; therefore, the termination should stand, according to Trenholm v. Staff of the Non‑Public Funds, Canadian Forces, 2006 PSLRB 66.

712 The respondent submitted that the first thing to consider is whether force was used. It was. The evidence was overwhelming on that point.

713 Mr. Tse‑Chun’s evidence was straightforward and credible. No evidence was adduced that he made up or embellished the story. His story was consistent, and he hadnothing to gain from attending the hearing. He never filed a complaint. Mr. Tse‑Chun testified having been poked, dragged and led by the grievor the 10 to 15 metres to the land border office. The grievor pulled Mr. Tse‑Chun by the shoulder as one would drag a dog.

714 Ms. Hellsten testified that the grievor grabbed Mr. Tse‑Chun by the shirt near the back of the neck to usher Mr. Tse‑Chun into the land border office, which is corroborative evidence that the grievor used force. Ms. Backman said that the grievor grabbed Mr. Tse‑Chun by the neck and led Mr. Tse‑Chun into the land border office. Sgt Johnston opined that the grievor used force, even in the grievor’s version of the facts. The grievor is the only one who denied that he used force. The grievor continues to claim that he used no force.

715 There is no doubt that the force used by the grievor was excessive. Supt Ashikian, Chief Clarke and Sgt Johnston testified that unnecessary force is excessive force. If force was unnecessary, it was automatically excessive. There was no reason for force to be used in the incident. Mr. Tse‑Chun testified that Mr. Tse‑Chun did not make any comments, did not say anything, did not resist the grievor and was scared to death to say anything to the grievor. Ms. Hellsten stated in her statement and her testimony that there was no reason to use such force to lead Mr. Tse‑Chun into the land border office. Ms. Backman testified being able to see and hear what was going on outside the bus. Ms. Backman said that the grievor grabbed Mr. Tse‑Chun and that Ms. Backman did not see or hear Mr. Tse‑Chun resisting the grievor in any way. There was no need to use force, and the force used was unnecessary and excessive.

716 The grievor testified that he did not use any force, which is completely different from what the witnesses reported in their statements. He expressed his concern about the possibility of a complaint to Supt Anderson shortly after the incident — Supt Anderson’s statement of October 18, 2007 (Exhibit E‑7) — and told Supt Brezden being worried about a complaint — Supt Brezden’s October 24, 2007 email to Chief Clarke (Exhibit E‑15). That indicated the grievor’s consciousness of guilt and fear of a complaint.

717 The respondent submitted that this case turns on the credibility of witnesses, which should be assessed in accordance with the test in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). The grievor’s testimony that he did not use any force and that Mr. Tse‑Chun was resistant does not accord with the preponderance of the probabilities and should not be believed. The respondent identified the following portions of the grievor’s statement (Exhibit E‑9, Appendix A) to Supt Ashikian that were refuted by the testimonies of M s. Hellsten, Ms. Backman and Mr. Tse‑Chun:

• when asked for the E‑311 cards, Mr. Tse‑Chun said that he had never heard of that “ridiculous” rule;
• Mr. Tse‑Chun tried to argue that the grievor was “the only one” and that the grievor had to be joking;
• Mr. Tse‑Chun continued to be irascible;
• Mr. Tse‑Chun continued to berate the grievor in front of the passengers in the bus;
• Mr. Tse‑Chun continued to shout at and to berate the grievor outside the bus;
• Mr. Tse‑Chun shook his finger in the grievor’s face or gave the grievor “the finger”; and
• Mr. Tse‑Chun half-turned in the grievor’s direction and waved his arms about.

718 The respondent identified the following portion of the grievor’s statement (Exhibit E‑9, Appendix A) to Supt Ashikian, which was refuted by the testimonies of Mr. Tse‑Chun and Supt Anderson; “The driver continued to shout and be difficult when the grievor and Superintendent Anderson returned to the driver.”

719 The respondent submitted that the grievor was not a credible witness and that the grievor ought not to be believed.

720 The grievor concealed his actions as follows:

• he did not inform Supt Anderson of his use of force; and
• he did not complete a use-of-force report, contrary to the requirement in section 59 of the Customs Enforcement Manual to complete one in “all situations/incidents where force is applied”; he knew that, had he done so, his actions would have been investigated, because the force that he used was inappropriate and excessive.

721 The grievor breached several provisions of the Agency’s Code of Conduct (Exhibit E‑19). He was untruthful during the investigation.

722 The grievor was invited to explain the discrepancies between his side of the story and those of the witnesses. He maintained his story and raised the issue of Supt Anderson’s statements of mid December 2006 (Exhibit E‑5) and September 16, 2007 (Exhibit E‑6). Chief Clarke sought further clarification from Supt Anderson, and Supt Anderson’s information was consistent.

723 The grievor was given a second opportunity to explain himself, and he maintained his story.

724 The grievor irreparably breached the Agency’s trust, which is an essential element of the employer-employee relationship. A lie during an excessive-force investigation, particularly when no remorse is demonstrated, is evidence of an unpromising foundation for rehabilitation; see Roberts v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 28, at para 317, 320 and 324.

725 Initial dishonest conduct can be compounded by dishonesty during an investigation and can be just cause for termination, despite long service and a good work record, as it undercuts the bond of trust;see Thomson v. Treasury Board (Revenue Canada – Customs & Excise), PSSRB File No. 166‑02‑27846 (19980402), at para 180 and 208;

726 Failure to acknowledge wrongdoing during an investigation and at a hearing and attempting to blame others prevents an adjudicator from mitigating a penalty on the basis of rehabilitative potential; see Morrow v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 43, at para 193, 195 and 198.

727 The grievor was not forthcoming during the investigation, attempted to minimize his conduct, cast the blame on others and alleged unsubstantiated problems with the investigation. That shows that the grievor does not accept responsibility for his conduct; see Shaver v. Deputy Head (Department of Human Resources and Skills Development), 2011 PSLRB 43, at para 120 to 122, 124 and 140. At paragraph 121 of Shaver, an adjudicator stated the following: “. . . What was required of the grievor when confronted with the allegations against him was an early, complete and consistent explanation of what he had done. He did not do so during the respondent’s investigation or in his evidence in this adjudication.”

728 A higher standard is expected of employees engaged in law enforcement as they occupy positions of trust. A loss of trust or confidence, as a result of dishonest conduct, will result in dismissal; see McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, at para 80.

729 Overall, on the evidence, it is clear that the grievor used excessive force during the incident. He was a peace officer. He was not candid during the investigation. He has no credibility, given his conduct, and the Agency would not trust him to give evidence in any future proceeding.

730 The respondent stated that Supt Brezden was not present during the incident. Supt Brezden spoke to Supt Anderson, but Supt Anderson was able to tell Supt Brezden only what Supt Anderson heard from the grievor about the incident.

2. For the grievor

731 The grievor submitted that the issues are whether he did what he is alleged to have done and whether the penalty was appropriate in the circumstances. I have attempted to summarize the main points of his argument. I note that much of his argument was not supported by evidence.

732 The grievor submitted that this case turns on the credibility of the witnesses, which should be assessed in accordance with the test in Faryna. The grievor stated that his evidence was the more credible and that it should be accepted. He stated that the best actor, the best speaker, or he or she with the highest position is not the important point. The grievor pointed to the contradictions between the testimonies of the respondent’s witnesses as evidence that he provided a more cogent story in harmony with the balance of probabilities.

733 The grievor submitted that neither Ms. Hellsten nor Ms. Backman saw him put his hands on Mr. Tse‑Chun’s shoulder and that Ms. Hellsten and Ms. Backman saw neither the grievor’s application of force nor the incident outside the bus. The grievor’s version has remained intact for six years.

734 The grievor challenged Mr. Tse‑Chun’s testimony as follows:

• Mr. Tse‑Chun gave three different versions of the incident, including the grievor placing his hands on Mr. Tse‑Chun’s jacket, dragging Mr. Tse‑Chun, pushing Mr. Tse‑Chun or walking beside Mr. Tse‑Chun, whereas the grievor’s version has remained intact for over six years;
• Mr. Tse‑Chun’s testimony and his statement to Supt Ashikian (Exhibit E‑20) were so different that one wonders whether Mr. Tse‑Chun was recalling the same incident;
• Mr. Tse‑Chun told Supt Ashikian that Mr. Tse‑Chun was pushed by the jacket, but at the hearing, Mr. Tse‑Chun said having been pulled into the land border office;
• Mr. Tse‑Chun stated that he could not see the bus‑traffic instructions (Exhibit E‑11) that were clearly readable;
• Mr. Tse‑Chun claimed that the grievor asked Mr. Tse‑Chun to sign a blank of the bus‑traffic instructions (Exhibit E‑11), but there is no place on the document for a signature;
• Mr. Tse‑Chun provided contradictory information in his statement to Supt Ashikian (Exhibit E‑20) and claimed having made many trips and provided E‑311 cards, but in Mr. Tse‑Chun’s dealings with the grievor, Mr. Tse‑Chun said not having done so;
• Mr. Tse‑Chun made no notes following the incident; and
• Supt Ashikian reported that Mr. Tse‑Chun was thinking out loud when Mr. Tse‑Chun gave a statement (Exhibit E‑20) but Mr. Tse‑Chun needed an interpreter in order to testify.

735 The grievor relied on Mr. Tse‑Chun’s testimony, as follows:

• Mr. Tse‑Chun did not think that it was a big deal;
• Mr. Tse‑Chun’s entire interaction with the grievor consisted of 10 sentences;
• under cross-examination, when Mr. Tse‑Chun became excited, he also became argumentative; his voice got louder, and he talked with his hands, which was consistent with what the grievor and Off. Duthie saw Mr. Tse‑Chun do; and
• Mr. Tse‑Chun apologized before leaving the land border office;

736 The grievor challenged Ms. Hellsten’s ability to perceive what occurred, as follows:

• Ms. Hellsten was sitting too far back in the bus;
• Ms. Hellsten described Mr. Tse‑Chun as a small man, but, had Ms. Hellsten seen Mr. Tse‑Chun next to the grievor, Ms. Hellsten would have noticed that Mr. Tse‑Chun and the grievor were within five pounds of each other, so Ms. Hellsten tried to mislead the hearing as to Mr. Tse‑Chun’s size;
• Ms. Hellsten noticed the grievor pushing on Mr. Tse‑Chun’s neck, but the grievor and Mr. Tse‑Chun said it was on the shoulder;
• Ms. Hellsten said that the same border services officer boarded the bus and cleared the bus, but other evidence suggested that it was a different border services officer than the grievor who cleared the bus;
• had excessive force been used, Ms. Hellsten would not have waited on the bus and would have immediately raised it with Supt Anderson; and
• Ms. Hellsten prepared her statement (Exhibit E‑1) six weeks after the incident, after discussing the matter with Ms. Backman and others at a hockey game.

737 The grievor relied on Ms. Hellsten’s comment that Mr. Tse‑Chun was upset inside the bus.

738 The grievor challenged Ms. Backman’s testimony, as follows:

• Ms. Backman did not see the grievor and Mr. Tse‑Chun exit the bus but only saw the grievor’s hand on Mr. Tse‑Chun’s neck;
• Ms. Backman said the same border services officer re‑boarded the bus;
• Ms. Backman made Mr. Tse‑Chun appear smaller than Mr. Tse‑Chun’s actual size;
• Ms. Backman discussed the incident at hockey games;
• Ms. Backman guessed as to what was required at a border crossing, but she is not allowed to make that determination; and
• Ms. Backman did not immediately report a use-of-force issue to Supt Anderson.

739 The grievor relied on the following parts of Ms. Backman’s testimony:

• Ms. Backman admitted that Mr. Tse‑Chun was agitated;
• Ms. Backman said that Mr. Tse‑Chun said that he could not see; and
• Ms. Backman admitted that she interjected in the conversation between the grievor and Mr. Tse‑Chun.

740 Were Mr. Tse‑Chun as experienced as he said he was, he would have known about the use of E‑311 cards for clearing bus traffic at Pacific Highway Crossing.

741 The grievor took issue with the following parts of Supt Anderson’s testimony:

• Supt Anderson’s statements of mid‑December 2006 and September 16 and October 18, 2007 (Exhibits E‑5, E‑6, E‑7) were prepared long after the incident;
• Supt Anderson should have requested a use-of-force report from the grievor and called in the use-of-force team, and it is too late to consider the grievor’s failure to provide a use-of-force report; and
• Supt Anderson made an admission against interest to Supt Brezden.

742 The grievor stated that the following parts of Supt Anderson’s testimony were more consistent with the grievor’s testimony:

• Supt Anderson confirmed that E‑311 cards were mandatory;
• Supt Anderson raised her voice to obtain compliance from Mr. Tse‑Chun;
• Supt Anderson said that Mr. Tse‑Chun apologized; and
• Supt Anderson said that Ms. Hellsten never raised the use of excessive force with Supt Anderson.

743 The grievor submitted that, if the Agency wanted him to submit a use-of-force report, it should have asked him for one. It is unfair to characterize that lack of a report as concealment when the Agency did not call in the use-of-force team. The grievor took issue with Supt Ashikian’s investigation and report (Exhibit E‑9) on the following bases:

• Supt Ashikian never carried out a use-of-force investigation and was not a use-of-force expert;
• Supt Ashikian’s report (Exhibit E‑9) was based on hearsay;
• Supt Ashikian inaccurately paraphrased what others said and changed the evidence to fit his conclusions;
• Supt Ashikian never tested discrepancies that he found and admitted that he would not test them;
• Supt Ashikian made leaps of judgment not supported by evidence; e.g., the grievor grabbing Mr. Tse‑Chun by the neck as opposed to grabbing Mr. Tse‑Chun’s jacket by the shoulder, as related by Mr. Tse‑Chun and the grievor;
• Supt Ashikian made no effort to speak with others who had worked the night in question;
• Supt Ashikian never explained why Supt Anderson provided no notes, even though Supt Ashikian requested them;
• Supt Ashikian’s report (Exhibit E‑9) was missing pages 1 to 5;
• Supt Ashikian took a long time to gather information; in the meantime, detail was lost from Mr. Tse‑Chun’s account;
• Supt Ashikian delayed interviewing the grievor;
• Supt Ashikian took a very long time to write his report (Exhibit E‑9) and then changed it at a request from the Agency’s headquarters in Ottawa;
• Supt Ashikian did not talk to Mr. Delgaty about the investigation report (Exhibit E‑9) or how Supt Ashikian reached his conclusion;
• Supt Ashikian tainted all the witnesses by sharing documents;
• Supt Ashikian never explained the missing schedules;
• Supt Ashikian characterized Mr. Tse‑Chun as compliant when Mr. Tse‑Chun said not needing the E‑311 cards;
• Supt Ashikian offered no explanation for the missing notes from the investigation, which was the first time he ever lost notes, and pages were missing in Exhibit E‑9, Appendix A;
• Supt Ashikian considered information about the bus’ location from people who had not been there;
• border services officers were required to collect E‑311 cards and this was not discretionary, contrary to what was suggested by Supt Ashikian;
• Supt Ashikian did not obtain the video surveillance tapes, without explaining why; the tapes would have supported the grievor’s version of events;
• Supt Ashikian indicated that he believed Ms. Hellsten’s version of events as Ms. Hellsten is an Agency director; and
• Supt Ashikian failed to challenge the information provided in any of the witnesses’ statements.

744 The grievor took issue with Chief Clarke’s testimony, as follows:

• Chief Clarke never talked or met with Supt Ashikian or any person other than the grievor during the truthfulness investigation;
• Chief Clarke never considered the differences that perspective could have had in his investigation or analysis of the grievor’s untruthfulness;
• Chief Clarke made no effort to secure evidence, including videotapes or shift schedules;
• Chief Clarke never prepared a report or recommendations;
• Chief Clarke did not provide the grievor with a fair hearing; and
• Chief Clarke’s investigation was unreasonable, capricious, arbitrary and done in bad faith.

745 The grievor took issue with Mr. Delgaty’s approach, as follows:

• Mr. Delgaty had no concerns about the delay carrying out the investigation;
• Mr. Delgaty had no concerns about missing evidence;
• Mr. Delgaty had no concerns about missing pages from the investigation report (Exhibit E‑9), and his decision was based on an incomplete document;
• Mr. Delgaty did not verify the information in the investigation report (Exhibit E‑9);
• Mr. Delgaty never checked the grievor’s personnel file for mitigating factors;
• Mr. Delgaty denied the grievor natural justice, as Mr. Delgaty did not invite the grievor to a meeting to state the grievor’s case or give the grievor an opportunity to explain; and
• Mr. Delgaty did not consider information that Supt Brezden provided when making Mr. Delgaty’s decision.

746 Mr. Tse‑Chun’s information was not straightforward, as follows:

• Mr. Tse‑Chun claimed that he gave the passengers E‑311 cards;
• Mr. Tse‑Chun never complained until he was asked to;
• Mr. Tse‑Chun was not calm during the incident — he was agitated inside the bus and in the land border office; and
• Mr. Tse‑Chun said that he was scared to death and that he did not wish to argue, which is inconsistent with what Off. Duthie reported, which was that Mr. Tse‑Chun was agitated, argumentative and aggressive.

747 The grievor’s explanation of the incident was consistent and was more clear and cogent than the different accounts given by Mr. Tse‑Chun, Ms. Hellsten and Ms. Backman. The grievor was not out to pick a fight. The grievor’s choice of words that Mr. Tse‑Chun was irascible was not much different from the words used by the witnesses, who stated that Mr. Tse‑Chun was agitated inside the bus.

748 The grievor asked for E‑311 cards, which was the proper exercise of his duty. As Off. Sullivan said, bus drivers often feign ignorance of the requirement to have their passengers fill out E‑311 cards.

749 The grievor admitted to using force. However, he used the least force possible in the situation and did not cause Mr. Tse‑Chun pain or discomfort. The grievor kept Mr. Tse‑Chun at arm’s length. Ms. Hellsten and Ms. Backman did not see the initial application of force or the earlier problem with Mr. Tse‑Chun just off the bus.

750 The grievor made no effort to conceal his actions; he went directly to Supt Anderson. The grievor’s evidence as to his conduct inside the land border office was supported by Off. Duthie’s eyewitness testimony and Supt Brezden’s testimony of Supt Anderson’s admissions.

751 The grievor did not fill out a use-of-force report, which is consistent with what other border services officers would have done in similar circumstances. The grievor found support in the testimonies of Off. Sullivan, Supt Brezden and Sgt Johnston that it is not unusual for a border services officer to place his or her hands on a subject’s clothing to guide the subject into a land border office.

752 The grievor’s evidence accords with the balance of probabilities; see Faryna. He did not mislead the Agency in the investigation and admitted at the outset that he grabbed Mr. Tse‑Chun’s jacket.

753 In the alternative, the grievor argued that, if there are grounds for discipline, the worst that can be said of the grievor’s conduct is that he grabbed Mr. Tse‑Chun’s jacket. It was an instantaneous reaction to a threat. The grievor did not inflect pain; it was a defensive technique.

754 The grievor submitted that termination was excessive in the circumstances and that he has rehabilitative potential. He acted on the spur of the moment when he felt threatened. He used the least amount of force possible. He worked for 13 months at the CANPASS Processing Centre without incident. He is the sole breadwinner in his family. He had a newborn and had just returned from paternity leave when he provided his statement (Exhibit E‑19, Appendix A) to Supt Ashikian. There is no evidence that the bond of trust was severed, as the grievor went on to work at the CANPASS Processing Centre. The termination was an overreaction. A proper substitute penalty might range from a written warning to a suspension for a reasonable period.

755 The grievor submitted that the respondent bears the burden of proof, following Canadian Labour Arbitration, at para 7:2300. The grievor submitted that the decision to terminate employment must be made reasonably and not arbitrarily, discriminatorily or in bad faith; see Canadian Labour Arbitration, at para 4:2326. Given that this is a termination case, the evidence must be clear and cogent. The balance of probabilities should be applied on a sliding scale of more severe consequences. The standard should be raised if the consequences become severe.

3. Respondent’s rebuttal

756 The grievor’s submissions did not reflect the evidence. He argued that he never denied using force, but his evidence at the hearing was that he did not use any force, although he grabbed the back of Mr. Tse‑Chun’s jacket.

757 The grievor suggested that Ms. Backman and Ms. Hellsten colluded, but the evidence was that they did not discuss their evidence when they prepared their statements (Exhibits E‑2 and E‑1). Ms. Backman and Ms. Hellsten each said that their respective statement was based solely on their own recollection of the incident.

758 The grievor said that Mr. Tse‑Chun never complained about the grievor’s conduct and that Mr. Tse‑Chun said that the incident was not a big deal. However, Mr. Tse‑Chun stated having thought that the grievor had the power or authority to do what the grievor did and that, therefore, there was no point complaining.

759 Supt Ashikian was called to explain the investigation. He met with all the individuals involved. All the witnesses were called to testify and were cross-examined. The statements given to Supt Ashikian were established in evidence.

760 As for the grievor’s claim that the investigation was deficient, it is important to remember that the incident became fully known only with the receipt of the statements of Ms. Hellsten and Ms. Backman (Exhibits E‑1 and E‑2). It took one month before Chief Clarke became fully aware of the incident. As soon as Chief Clarke learned of it, Chief Clarke asked for an investigation. The surveillance video was overwritten after 7 to 10 days if videotapes were being used at that time. The Agency did not destroy the evidence; it simply did not exist. No real explanation was ever given for the Agency’s failure to provide shift schedules to Supt Ashikian.

761 The respondent stated that Off. Duthie’s testimony must be seriously considered as it goes against Supt Anderson’s testimony and was not provided to Supt Ashikian. The grievor should have made Supt Ashikian aware of the fact that Off. Duthie had evidence about the incident.

762 No evidence was adduced that Supt Ashikian tainted the evidence by sharing documents with witnesses.

763 This case did not require a use-of-force expert. This case turns on whether the force used was necessary. A use-of-force investigation could not have been launched, as the grievor did not fill out the proper use-of-force report, contrary to what he was required to.

764 The evidence about the use of the E‑311 cards was mixed, as some testimony was that the use of those cards was not mandated by statute or by any other legal requirement.

765 The grievor suggested that Mr. Delgaty did not investigate the allegations or conduct a hearing to get the grievor’s side of the story. Mr. Delgaty considered the investigation report (Exhibit E‑9). By the time the matter reached Mr. Delgaty for a decision, the grievor had had three occasions to explain himself — once to Supt Ashikian, and twice to Chief Clarke. The respondent relied on paragraph 133 of Shaver and submitted that, if unfairness occurred in the investigation or in the Agency’s decision-making process, it was cured by this adjudication.

766 The respondent stated that, if deficiencies occurred in the investigation, which it denied, the witnesses interviewed by Supt Ashikian, who also testified at the hearing, provided ample evidence. The respondent stated further that the hearing de novo before me cured any deficiency in the investigation; see Shaver andTipple. The respondent stated further that the standard of proof is the simple balance of probabilities.

767 In response to the grievor’s submission about the E‑311 cards, it is clear that Supt Brezden and Off. Sullivan also testified that they were not aware of any legal requirement to use those cards.

768 The termination letter (Exhibit E‑18) set out the grounds for the termination, which included many examples of why the grievor was found untruthful during the investigation.

769 In reply to the grievor’s argument that others would not have submitted a use-of-force report in similar circumstances, the cross-examinations of Off. Sullivan, Supt Brezden and Sgt Johnston also illustrated that, given the facts, each would have filled out such a report. The respondent submitted that it does not matter what the witnesses think as section 59 of the Customs Enforcement Manual is clear, and a use-of-force report was required. No further enforcement incidents involving the grievor occurred after the grievor was posted to the CANPASS Processing Centre, but the grievor had no further contact with the public.

770 The respondent submitted that the Supreme Court of Canada recently made a decision on the burden of proof: see F.H. v. McDougall. It is clear that the law is no longer written as the grievor stated it was and that the balance of probabilities depends on the seriousness of the allegations. There is no sliding scale. The balance of probabilities is satisfied if simply 51% of one side can be proven. The respondent met its burden of proving that the grievor used force, that that force was unreasonable and that he lacked candour during the investigation.

4. Grievor’s further argument

771 I asked the grievor to address three further points before the hearing concluded.

772 The grievor’s submission did not set out a remedy. He seeks the remedy set out in his grievance, which is that he be reinstated, that the discipline be rescinded, that he be paid all lost pay and benefits with interest, and that he be granted any other remedy that the adjudicator may allow. The grievor also asked that I reserve jurisdiction over the award’s implementation.

773 I asked the grievor to respond to the respondent’s argument that a hearing before me cures any procedural defect in the investigation (see Shaver, at para 133, and Tipple). The grievor referred to the following as evidence that the Agency acted improperly:

• the loss of Supt Ashikian’s notes;
• the failure to secure evidence, including the surveillance videotapes; and
• the failure of Chief Clarke to provide a written report on the dishonesty issue to Mr. Delgaty before Mr. Delgaty made the decision to terminate the grievor.

774 I asked the grievor to comment on the fact that Off. Duthie’s evidence was not brought forward earlier. The grievor said that Off. Duthie expected that someone would talk to Off. Duthie, as Off. Duthie was scheduled to work on the evening at issue.

III. Reasons

775 I must analyze this termination case in accordance with the usual approach, as set out as follows in William Scott:

• was there conduct that gave rise to discipline?
• if so, was termination an excessive response in the circumstances? and
• if so, what alternative remedy should be substituted?

776 The respondent had the burden of proof of establishing the facts on a balance of probabilities with clear, convincing and cogent evidence; see F.H. v. McDougall, at para 45 and 46.

777 I note that this is a case in which the facts were disputed. The Agency relied on the oral testimonies of eyewitnesses in its decision to terminate the grievor’s employment. Common experience suggests that all people perceive the world differently and that people observing the same event can see and recall it differently, particularly with the passage of time. Unfortunately, the witnesses were testifying 3.5 to 4.5 years after the incident. They were cross-examined, and any frailties with observation, recall, reliability and credibility were exposed.

778 After hearing the oral testimony, my view is that the grievor never admitted that the witnesses had a better recall of the incident. In particular, the grievor denied the following suggestion at page 6 of Supt Ashikian’s report (Exhibit E‑9): “The RESPONDENT stated verbally, as well as wrote in his amended report, that he accepts full responsibility for his role in the incident. Further, he agrees that the witness accounts are a more accurate reporting of the incident.”

779 This matter could perhaps have been cleared up had Supt Ashikian’s record of the grievor’s interview been available. I note that investigators’ reports are prepared from paraphrased notes. The conclusion added by the grievor at page 6 of the investigation report (Exhibit E‑9), which reads as follows, is not a full admission of wrongdoing: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.”

780 Other than Supt Ashikian’s report at paragraph 12(e) on page 15, which reads as follows, there is no documentary proof that the grievor accepted that the witnesses’ accounts were a more accurate reporting of the incident:

…

e) The RESPONDENT was provided an opportunity to absorb the information and findings gathered through witness interviews before answering further to the allegation. The RESPONDENT stated that he was side tracked by the driver’s claim of not being able to see and this led him to an incident with the bus driver which was not what he had intended. The RESPONDENT requested an opportunity to rewrite the ‘conclusion’ to his written incident report. The RESPONDENT stated verbally, as well as wrote in his amended report, that he accepts full responsibility for his role in the incident. Further, he agrees that the witness accounts are a more accurate reporting of the incident.

…

Given the grievor’s denial in his testimony before me, and in the absence of independent documentary evidence, which would have been Supt Ashikian’s notes, I do not consider that the grievor amended the conclusion of his statement (Exhibit E‑9, Appendix A) to add an admission of his wrongdoing and any admission that the witnesses were more accurate than the grievor was.

781 This is a case in which the grievor has not admitted any misconduct. Further, he disagreed with the conclusions of Supt Ashikian’s report (Exhibit E‑9) and with Supt Ashikian’s interpretation of the grievor’s amended conclusion (Exhibit E‑9, page 6) about his conduct that he supplied to Supt Ashikian, which reads as follows: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.”

782 I note further that, when the grievor was asked about the matter at issue, the only thing he thought would have helped was backup in the bus clearance area.

783 I have attempted to set out the disputed evidence in more detail than is usual as I expect that the grievor still believes he did nothing wrong and that he is not at all remorseful for his actions.

A. Alleged failures relating to the investigation

784 The grievor raised issues with the investigation and Supt Ashikian’s report (Exhibit E‑9). What seems clear is that, until Ms. Hellsten pushed this case forward, the Agency did not investigate any issue involving the grievor’s conduct on October 22, 2006. It did not secure information such as the shift schedules, video recording information or statements from border services officers on duty.

785 The grievor commented on the disappearance of the video recordings and shift schedules. Neither the Agency nor Supt Ashikian had a duty to preserve evidence in the absence of a complaint. Had the grievor reported his use of force in a timely manner, it might have had a bearing on the availability of that evidence. It is clear from the evidence that the grievor did not disclose to Supt Anderson having touched Mr. Tse‑Chun’s neck, back or shoulder. The grievor did not record the incident in his border services officer notebook and did not submit a use-of-force report. Until Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2) were received, there was little for the Agency to investigate. My view is that no steps were taken with respect to the incident, as the Agency was not fully aware of the allegation that the grievor used force until it received Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2) approximately one month after the incident.

786 The use-of-force investigation was delayed, as the grievor did not submit a use-of-force report, contrary to what is required by the Customs Enforcement Manual. I find it more probable than not that, by the time Chief Clarke became aware of the incident through Ms. Hellsten’s allegations and had a reasonable opportunity to consider and respond, any video recording had been overwritten. I note that Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2) were received on November 20, 2006, that the grievor was removed from enforcement duties and posted to the CANPASS Processing Centre on November 24, 2006, and that the 30-day video retention period from the incident on October 22, 2006 would likely have expired by then. The video evidence might have been overwritten much earlier if the surveillance system had a 7- to 10-day retention period, as suggested by some witnesses. I draw no adverse inference against the Agency or the grievor. That video evidence, if available, might have helped. I am obligated to determine the grievance based on the available evidence.

787 Once the Agency became aware of the incident, it asked Internal Affairs for an investigation report. It moved the grievor to an administrative, non‑enforcement capacity. It later terminated him, based on Supt Ashikian’s report (Exhibit E‑9), for excessive or unnecessary force as well as for dishonesty during the investigation.

788 Although it is surprising to me that Supt Ashikian did not receive the degree of cooperation that he expected in terms of being provided with shift schedules, I find this of little consequence to this case as the incident that caused concern occurred inside and outside the bus and not in the land border office. At the relevant time, the grievor was the only border services officer working the bus area, as the other border services officer was called away from the bus inspection area to the primary-inspection lane for cars.

789 After hearing Supt Ashikian’s evidence in both direct and cross-examination, it is my view that he had each witness, including the grievor, initial Supt Ashikian’s notes and that Supt Ashikian permitted each an opportunity to make changes before Supt Ashikian’s wrote the investigation report (Exhibit E‑9). Supt Ashikian provided the Agency with a draft report and issued a final report with grammatical or spelling changes, but no one from the Agency attempted to interfere with the report’s substance. Generally, Supt Ashikian’s report was consistent with the written statements provided to him and with the oral testimonies of the witnesses at the hearing.

790 The first five pages of Supt Ashikian’s notes were of his interview with the grievor. Those pages, although not attached to the investigation report (Exhibit E‑9), were incorporated into the report, and the sixth page was a full copy of the grievor’s amended conclusion. The grievor made much of the five missing pages in Supt Ashikian’s report. Off. Sullivan did not identify any major problems with the report nor with Supt Ashikian’s reporting of the information provided by the grievor during the investigation. Nothing suggests that Supt Ashikian inaccurately reported the grievor’s answers given during the investigation. I note that the grievor’s testimony at the hearing, as well as the testimonies of the witnesses, was largely consistent with the facts reported by Supt Ashikian in his report.

791 Clearly, the Agency relied properly on the investigation report (Exhibit E‑9) in its decisions to investigate what it perceived as the grievor’s dishonesty and then to terminate him. There is no need for managers such as Chief Clarke or the decision maker, in this case Mr. Delgaty, to redo an investigation or to provide a formal hearing. There are no elements of bad faith in the Agency’s investigation of the alleged misconduct or its subsequent decision to dismiss the grievor. The grievor had full opportunity to participate in the investigation, and the material points from the witnesses were raised for his consideration. Chief Clarke gave the grievor two opportunities to comment on the investigation report and to provide further explanations of the grievor’s behaviour. Chief Clarke followed up on all the further information that the grievor provided. Mr. Delgaty considered the investigation report and made a decision based on it. I adopt the following reasoning from Shaver, at paragraph 133, in which a similar argument was made:

[133]  … First, I do not agree with the grievor that they amount to bad faith. The respondent was entitled to rely on the findings of the August 13, 2008 report of Ms. Heon and she made findings based on her interpretation of the information before her. There is no evidence that she or the person who conducted the review of the grievor’s security status were biased or that they otherwise acted improperly. The respondent’s risk of adopting the findings of the August 13, 2008 report was that they could turn out to be incorrect in some respects, as they did, but that is not bad faith. And, in any event, the security review of October 6, 2008 included a good deal of information that was correct. The second response to the grievor’s concerns about procedural fairness is that the hearing has [sic] had in this adjudication serves to cure any unfairness in the respondent’s process (Braun, supra, para 192; citing Tipple, supra).

Further, as the Federal Court of Appeal decided in Tipple, “Assuming that there was procedural unfairness … that unfairness was wholly cured by the hearing de novo before the Adjudicator …” because “… the Applicant had full notice of the allegations against him and full opportunity to respond to them…” The Court added that “… it was no error of law for the Adjudicator to give such weight as he thought right to those statements which were, in our view, properly admitted in evidence by him…”

792 Finally, I have not relied on Supt Ashikian’s conclusions for any findings of fact in this case. My decision was based on my appreciation of the testimony that I heard and of the documentary evidence that was adduced at the hearing.

 B. Was there conduct that gave rise to discipline?

793 A substantial difference exists between the grievor’s testimony and the testimonies of other witnesses. There is little common ground between the parties other than that they agree that this is a case involving the assessment of the credibility of witnesses. I have considered and applied the following credibility test, found in Faryna, at page 357:

…

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.

…

794 After reviewing the testimonies of all the witnesses, my view is that each testified with a conviction that they were telling the truth. I can draw no conclusions from demeanour alone, which at any rate does not assist me in reconciling the differences between the testimonies of the respondent’s and the grievor’s witnesses. The grievor, in particular, testified in an apparently straightforward, confident and unruffled manner and with the apparent conviction that he was telling the truth. There were no indications in his demeanour that he was fabricating his evidence; he patiently answered all the questions put to him in cross-examination. However, I note that there was a substantial difference between his demeanour when he testified at the hearing and that observed by the witnesses at the time of the incident.

795 Despite all the appearances of being truthful, in applying the test in Faryna, I regretfully conclude that I do not accept the grievor’s explanation of his conduct to Supt Ashikian, during the pre-disciplinary process or at the hearing. I further conclude that he was not candid from the outset of his dealings with Supt Anderson.

796 The grievor argued that Ms. Hellsten and Ms. Backman discussed the evidence. I find that argument unsupported by any evidence. Differences and nuances appear in the written statements (Exhibits E‑1 and E‑2) and oral testimonies of Ms. Hellsten and Ms. Backman that are sufficient for me to conclude that Ms. Hellsten and Ms. Backman did not collude about their testimony and that they provided their best independent recollections of what they observed. I account for the differences by Ms. Hellsten’s and Ms. Backman’s relative abilities to observe and recall the incident, as they sat in different parts of the bus.

797 Ms. Hellsten, Ms. Backman and Mr. Tse‑Chun are truly independent witnesses with no stake in the outcome of this grievance. Although they might have been inconvenienced by how long it took the bus to clear the border, and although Ms. Hellsten might have been embarrassed by observing an Agency employee behave as the grievor behaved, there is no reason to believe that Ms. Hellsten, Ms. Backman and Mr. Tse‑Chun tailored their evidence to fabricate events. I have no basis to disbelieve Ms. Hellsten’s, Ms. Backman’s and Mr. Tse‑Chun’s testimonies that the grievor behaved aggressively toward Mr. Tse‑Chun. In particular, Ms. Hellsten, who had some knowledge of the proper behaviour of Agency employees, was shocked by the grievor’s treatment of Mr. Tse‑Chun. There was simply no basis for Ms. Backman to fabricate her very clear evidence about the grievor’s tone and words used toward Ms. Backman and Mr. Tse‑Chun.

798 The grievor also vigorously challenged the abilities of Ms. Backman and Ms. Hellsten to observe what occurred. It is apparent that both Ms. Backman and Ms. Hellsten were able to observe the grievor’s conduct inside the bus. Given Ms. Backman’s position inside the bus at the front, it is clear that she was able to see and hear both the grievor and Mr. Tse‑Chun at all material times. It is apparent that Ms. Backman had a clear view of what occurred inside the bus. Ms. Hellsten was less able to observe, particularly the area immediately outside the bus door.

799 I note that there were difficulties with Mr. Tse‑Chun’s testimony. I had the sense that he was telling the truth and that he was trying to do his best to answer questions. There was obviously a language barrier, and in my view, he may not have fully understood the tone of the cross-examination and the suggestions of the grievor. However, from Mr. Tse‑Chun’s testimony, I conclude that Mr. Tse‑Chun understood that the grievor was upset with Mr. Tse‑Chun but not why the grievor was upset, that Mr. Tse‑Chun was frightened by how the grievor was treating Mr. Tse‑Chun, and that Mr. Tse‑Chun offered no physical resistance or threat of resistance to the grievor. I accept that Mr. Tse‑Chun could not read the bus‑traffic instructions (Exhibit E‑11) when they were presented to him on the bus.

800 I prefer the testimonies of Ms. Hellsten and Ms. Backman as to the details of Mr. Tse‑Chun’s interaction with the grievor on the bus. Ms. Hellsten and Ms. Backman had a better capacity to use English to express what the grievor said and did, in comparison to Mr. Tse‑Chun’s capacity.

801 In terms of what happened off the bus before the grievor and Mr. Tse‑Chun entered the land border office, there is no support for the grievor’s version of the events. Thus, I do not accept his testimony on that point.

802 Mr. Tse‑Chun said having been grabbed by the grievor from behind and that the grievor walked beside Mr. Tse‑Chun to the land border office. Ms. Backman said that the grievor had Mr. Tse‑Chun by the back of the neck immediately upon exiting the bus. Neither Mr. Tse‑Chun nor Ms. Backman testified about any discussions or events outside the bus.

803 Although neither Ms. Hellsten nor Ms. Backman saw the grievor’s initial application of force, Ms. Hellsten saw the grievor holding Mr. Tse‑Chun’s clothing and pushing Mr. Tse‑Chun forward and Ms. Hellsten was unshaken in cross-examination about the degree of force used to propel Mr. Tse‑Chun into the land border office.

804 I am satisfied that Ms. Backman had full opportunity to observe almost all that occurred on and off the bus. I prefer her evidence over the grievor’s testimony as to what occurred on and off the bus.

805 I consider that there is no significant difference between the grievor grabbing Mr. Tse‑Chun on the upper back, neck or collar. Clearly, the grievor grabbed Mr. Tse‑Chun in the vicinity of Mr. Tse‑Chun’s shoulder and neck, held Mr. Tse‑Chun’s clothing, pushed Mr. Tse‑Chun forward and retained physical contact until Mr. Tse‑Chun was at the door or, alternatively, inside the land border office. Even if one accepts the grievor’s testimony that the grievor had his hand on Mr. Tse‑Chun’s clothing and that the grievor applied minimal force, it is clear that the grievor applied force. It is somewhat astonishing that the grievor does not perceive that he used force and that he maintained before me at the hearing that he did not use force.

806 The grievor’s touching of Mr. Tse‑Chun cannot be considered accidental. I note that Sgt Johnston considered it possible that the grievor touched Mr. Tse‑Chun as a reflex action. Clearly, determining whether it was deliberate or accidental is solely within the adjudicator’s purview, and I decline to accept Sgt Johnston’s view on this point. According to the grievor’s own admission in testimony, the grievor intended to touch Mr. Tse‑Chun, which the grievor then did.

807 The question of whether the grievor was justified using force turns on the circumstances of the case. I do not accept his testimony that Mr. Tse‑Chun turned and waved his hands in the air outside the bus. That behaviour would be inconsistent with Mr. Tse‑Chun’s behaviour as observed by Ms. Hellsten and Ms. Backman shortly before, inside the bus, and would be inconsistent with Ms. Hellsten’s and Ms. Backman’s observations of what occurred outside the bus.

808 I appreciate that behaviour can change quickly, but I note that the grievor was younger and larger than Mr. Tse‑Chun, behaved authoritatively, was in uniform and clearly had intimidated Mr. Tse‑Chun. The grievor’s story of a physical confrontation with Mr. Tse‑Chun or of a fear of an imminent physical confrontation does not have any ring of truth and does not accord with the balance of probabilities.

809 Supt Anderson testified not having seen Mr. Tse‑Chun behave uncooperatively. The grievor challenged Supt Anderson’s testimony through cross‑examination and by calling Supt Brezden and Off. Duthie at the hearing. Both Supt Brezden and Off. Duthie were called to impeach Supt Anderson’s observations inside the land border office.

810 Evidence showed that the grievor’s testimony at the hearing was not truthful on a material point about Supt Brezden. In his re-examination, the grievor claimed that Supt Brezden was one of the border services officers on duty the evening of the incident who heard Supt Anderson discuss Mr. Tse‑Chun’s conduct and that Supt Anderson’s account on the day of the incident differed from Supt Anderson’s testimony at the hearing and Supt Anderson’s statements of mid‑December 2006 and September 16 and October 18, 2007 (Exhibits E‑5, E‑6 and E‑7). Supt Brezden clearly stated not having been on duty at the time of the incident and having become involved in the discussion with Supt Anderson at the grievor’s request a couple of days after the incident.

811 The grievor relied on Supt Brezden’s statements that Supt Anderson apparently informed Supt Brezden that Mr. Tse‑Chun was being difficult. However, it must be remembered that Supt Anderson did not witness the grievor’s earlier interactions with Mr. Tse‑Chun. Supt Brezden’s allegations of what Supt Anderson said have to be interpreted in light of the grievor’s failure to disclose having used force and the grievor’s representations to Supt Anderson that Mr. Tse‑Chun was being difficult.

812 According to Supt Anderson’s testimony, Supt Anderson did not give Mr. Tse‑Chun the chance to argue, which is a reasonably prudent approach given what the grievor told Supt Anderson about Mr. Tse‑Chun’s alleged conduct. Furthermore, I note that the grievor did not cross-examine Supt Anderson on the full particulars of Supt Brezden’s testimony. In my view, that is fatal to the argument that Supt Brezden’s second-hand information about what Supt Anderson said should be preferred over Supt Anderson’s oral testimony at the hearing and Supt Anderson’s statements of mid‑December 2006 and September 16 and October 18, 2007 (Exhibits E‑5, E‑6 and E‑7): Browne v. Dunn (1894), 6 R. 67 (H.L.).

813 Off. Duthie’s testimony creates concern as it differs from that of Supt Anderson. The grievor did not identify Off. Duthie as a witness to Supt Ashikian during the investigation or to Chief Clark at the pre-disciplinary meetings. At the time of the incident, Off. Duthie was a junior border services officer, with about three months of on-the-job experience. I do not accept Off. Duthie’s testimony on Mr. Tse‑Chun’s level of aggression. Off. Duthie did not see anything out of the ordinary and did not report anything to management. However, it appears that, even on Off. Duthie’s testimony, Mr. Tse‑Chun was compliant with the grievor’s demands and with Supt Anderson’s inquiries inside the land border office.

814 Furthermore, Off. Duthie’s testimony did not shed any light on the transaction between the grievor and Mr. Tse‑Chun either in the bus or outside the land border office. It certainly did not compel a conclusion different from the testimonies of Ms. Hellsten or Ms. Backman.

815 One of my concerns about how the grievor dealt with Mr. Tse‑Chun is that it should have been readily apparent to the grievor that the grievor was dealing with someone whose first language was not English. The grievor did not take much care to determine whether Mr. Tse‑Chun understood the grievor; it seems the grievor leapt to the conclusion that Mr. Tse‑Chun was deliberately non-compliant. The grievor presented the bus‑traffic instructions (Exhibit E‑11) to Mr. Tse‑Chun, whose reading comprehension the grievor assumed but did not take the time to assess, in the relative darkness of the bus. The grievor spoke in an intimidating voice. The grievor belittled Mr. Tse‑Chun in front of the passengers. Although the instructions were not in fine print, they were sufficiently complex that a person under stress, without reading glasses, and whose second language was English would have had difficulty reading or interpreting the instructions in the relative darkness of the bus.

816 It is difficult to understand why the grievor leapt to the conclusion that Mr. Tse‑Chun had a health and safety issue as opposed to a language and comprehension issue. The grievor did not take much care to sort out the issue in the bus. This might have been because the grievor was the only border services officer working the bus lane at the relevant time, which was busy. Supt Anderson easily sorted the issue out inside the land border office. In my view, the grievor, a trained border services officer, should have been able to easily deal with that issue on the bus, had the grievor behaved professionally.

817 I do not think that there was any problem with the grievor asking Mr. Tse‑Chun to leave the bus for a private conversation. I do not accept that the situation escalated as presented by the grievor. It is more probable than not that the grievor intended to take Mr. Tse‑Chun directly into the land border office to sort out the eyesight issue, given the grievor’s testimony that it was raining. In doing so, the grievor immediately grabbed Mr. Tse‑Chun by the shoulder or by the neck of Mr. Tse‑Chun’s shirt because the grievor was frustrated by the dealings with Mr. Tse‑Chun in the bus. However, the situation was of the grievor’s own making. The grievor leapt to the conclusion that there was a health and safety issue when, in my view, a reasonable person should have considered the lighting issues in the bus and the competency of Mr. Tse‑Chun to speak and read English in a stressful situation. I note that the grievor did not give this testimony at the hearing, but on the whole of the credible evidence, I find that this is what happened.

818 I note that the grievor did not put to Mr. Tse‑Chun the version of the events which the grievor later testified about. The grievor did not suggest to Mr. Tse‑Chun that Mr. Tse‑Chun turned to face the grievor and that Mr. Tse‑Chun gesticulated with his arms or hands. Further, the grievor never put to Mr. Tse‑Chun the grievor’s version of the following:

• Mr. Tse‑Chun deliberately tried to be difficult;
• suggestions that Mr. Tse‑Chun engaged in any gamesmanship or that he played to the bus audience; or
• Mr. Tse‑Chun berating the grievor in front of the passengers.

Mr. Tse‑Chun was a difficult witness to examine and cross-examine, but it is incumbent on a party calling contradictory proof to put that main issue or defence to a witness that the party intends to contradict: Browne.

819 The grievor’s version of the events could possibly be true. However, having examined his version and having considered all the circumstances, I am not satisfied that it makes sense. The grievor did not advance that version at the first possible moment to Supt Anderson, contrary to what a reasonable person would have done in similar circumstances, particularly as the grievor was under a work plan requiring him to report enforcement problems and the use of force. The grievor never advised Supt Anderson being worried for his safety and having had to touch Mr. Tse‑Chun.

820 After the grievor saw Supt Anderson speak to two women from the bus and was made aware that one was an Agency director, the grievor expressed to Supt Anderson being worried about a complaint. Had the grievor done everything properly, as the grievor suggested at the hearing, the grievor would have had nothing to fear except the stress, embarrassment and inconvenience of an investigation. However, the grievor made no notes about the incident, which I find surprising, as I would have thought that a trained border services officer would record an incident, as obliged by section 58 of the Customs Enforcement Manual, and would prepare a use-of-force report, as required by section 59. Clearly, the incident was important to the grievor, because he touched Mr. Tse‑Chun and escorted Mr. Tse‑Chun to the examination area and had to call in a supervisor for assistance, all of which the grievor knew was witnessed by an Agency director, whom he saw talking to Supt Anderson. The grievor was concerned enough to relate the incident to Supt Brezden and to ask Supt Brezden to speak with Supt Anderson within the two days after the incident.

821 The Agency trained the grievor in the use of force, including training on the policies controlling the use of force. I do not accept the grievor’s testimony that he was unaware of the requirement to make notes in his notebook about a use-of-force situation, as required by section 58 of the Customs Enforcement Manual. It is a basic aspect of training, and his denial does not ring true. Further, I do not accept the grievor’s testimony that a use-of-force report is submitted only if an arrest takes place. It is a requirement when any force is used, and the grievor did not file a report. The Customs Enforcement Manual places the onus on a border services officer to file the report and not on the Agency to ask for it. It is no defence to allege that the Agency failed to ask for the report.

822 It is clear that the Agency was not aware of the full nature of the Ms. Hellsten’s allegations until Chief Clarke received Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2) about a month after the incident.

823 I note that, unlike the witnesses for the respondent who witnessed what occurred inside and outside the bus and who have no interest in the outcome of these proceedings, the grievor has a clear financial and reputational interest in the outcome.

824 The grievor did not behave respectfully when he dealt with Mr. Tse‑Chun in the bus. There is no reason to doubt the testimonies of Ms. Hellsten, Ms. Backman or Mr. Tse‑Chun in this regard.

825 My view is that Ms. Hellsten would not have come forward with her allegations and Ms. Hellsten and Ms. Backman would not provided statements (Exhibits E‑1 and E‑2) to Chief Clarke had Ms. Hellsten and Ms. Backman not been concerned about the grievor’s treatment of Mr. Tse‑Chun. The fact that Mr. Tse‑Chun did not file a complaint does not concern me as Mr. Tse‑Chun thought that the grievor had the authority to treat Mr. Tse‑Chun as the grievor did.

826 The grievor violated the following public service values of the Agency’s Code of Conduct (Exhibit E‑19) in his treatment of Mr. Tse‑Chun on the bus:

…

Public Service Values

• Ethical Values: Acting at all times in such a way as to uphold the public trust;
• People Values: Demonstrating respect, fairness and courtesy in their dealings with both citizens and fellow public servants.

…

827 It is clear that the grievor violated the following parts of the Customs Enforcement Manual:

…

38. Officers must complete a Use of Force Report (E642) within 24 hours, or as soon as practical, each and every time they employ force to control a situation.

…

58. Officers will, as soon as possible after an event involving use of force, record the details in their Customs Notebook (CE1).

59. A Use of Force Report (E642) will be completed within 24 hours, or as soon as practical, and submitted to the shift superintendent after all situations/incidents where force is applied.

…

828 It is my sense that the grievor exaggerated his concerns about Mr. Tse‑Chun’s behaviour in the bus in his statement (Exhibit E‑9, Appendix A) to Supt Ashikian and in his oral testimony at the hearing. Clear to any objective observer is that the grievor was sidetracked on an issue of whether Mr. Tse‑Chun was able to see, when it was apparent that the grievor was dealing with a person who used English as a second language and who was having trouble reading in the diminished light conditions of the bus. That scenario is more probable than the one advanced by the grievor.

829 I accept that the bus passengers reacted to how the grievor was treating Mr. Tse‑Chun. It made sense for the grievor to remove Mr. Tse‑Chun from the bus and to bring Mr. Tse‑Chun to the land border office, but the grievor’s inappropriate behaviour created the situation where it was appropriate to leave the bus. In the land border office, the grievor would have had Supt Anderson’s assistance and would have been better able to determine any vision issues, rather than outside the bus, where no supervisor was present and where the lighting was worse than inside the bus.

830 In my view, the grievor acted within the scope of a border services officer’s duty to request E‑311 cards. He had that discretion. It is clear that verbal declarations are a method of clearing a bus and that that method was still being used at Pacific Highway Crossing at that time and that that method was how another border services officer cleared the bus after the grievor brought Mr. Tse‑Chun to the land border office. How the grievor asked for the E‑311 cards and how he dealt with Mr. Tse‑Chun were improper.

831 Perhaps the grievor had a duty to follow up on the eyesight issue, but according to the Agency’s values, it should have been done privately and not by ridiculing Mr. Tse‑Chun, contrary to what the grievor did on the bus. I accept the testimonies of Ms. Backman and Ms. Hellsten that the grievor berated and belittled Mr. Tse‑Chun in front of the passengers for not being able to see.

832 The Agency terminated the grievor in part because excessive force was used or because of an unjustified use of force. I agree with the testimonies of Chief Clarke and Mr. Delgaty that no force was necessary, as Mr. Tse‑Chun was not resistant but was cooperating and responding.

833 The grievor’s job was to clear the bus. He did not focus on that but on Mr. Tse‑Chun’s eyesight. I note that it seems that the grievor was sidetracked from his main duty. In the course of escorting Mr. Tse‑Chun into the land border office, the grievor used more force than was necessary, as none was necessary. My view is also that the grievor did not provide a truthful account of his actions, either during the investigation or at the hearing.

834 I find that the respondent established that the grievor’s conduct gave rise to discipline and that disciplinary action was justified in the circumstances.

C. Was termination an excessive response in the circumstances?

835 The grievor was on a work plan because of problems with his dealings with the public. He showed a serious lack of judgment by pursuing a vision issue during a primary inspection of the bus driven by Mr. Tse‑Chun and lacked courtesy in his dealings with Mr. Tse‑Chun. The grievor used excessive force because no force was necessary in the circumstances. If the grievor had to apply force because of fear of an imminent assault, common sense would suggest that the grievor would have informed Supt Anderson at the earliest opportunity, particularly when the grievor was on a work plan that required him to.

836 I note that, were this case simply about discipline for the use of excessive force, in my view, terminating the grievor’s employment would have been inordinate in the circumstances.

837 The most troubling aspect of this case is that the grievor was not candid about his dealings with Mr. Tse‑Chun in his contact with Supt Anderson immediately after the incident, during the investigation or at the two pre-disciplinary meetings. The grievor did not submit a use-of-force report. That failure of a clear requirement of the Customs Enforcement Manual is troubling. Further, my view is that the grievor was not candid at the hearing when he stated that he did not know that he needed to record the incident in his notebook.

838 The grievor was not entirely cooperative with Supt Ashikian as initially the grievor refused to provide a statement (Exhibit E‑9, Appendix A) until the grievor saw the statements of others. In the end, the grievor did not provide the notes that he should have taken to record the incident but a statement instead. Everything indicates that the grievor concealed the true facts of the incident when he was concerned about his conduct as he was under the terms of a work plan for his past behaviour in enforcement situations. He realized that an Agency manager was on the bus and witnessed his conduct.

839 Furthermore, the grievor appears to have concocted a story to attempt to explain his conduct, rather than admit to his wrongdoing. He provided that story to Supt Ashikian and maintained it at the hearing. The grievor strongly suggested that there was “nothing to the incident” in the bus, that Mr. Tse‑Chun was to blame, or that Ms. Hellsten and Ms. Backman misconstrued the incident or that Ms. Hellsten and Ms. Backman colluded in their statements (Exhibits E‑1 and E‑2). I do not accept the grievor’s evidence that his testimony and that of the different witnesses had simple honest differences based only on their observational capacities.

840 The grievor was a peace officer, and his observations about the incident should have been recorded in his notebook. That was a basic aspect of his employment and is fundamental to a border services officer’s role. In my view, the Agency had the right to be concerned about the grievor’s conduct, as it is a fundamental requirement that border services officers are expected to give evidence in court in a candid and straightforward way. The best way to ensure candid, accurate and straightforward evidence when one is called upon to make an account of conduct or to testify at a hearing is to make notes at the time of the incident. One has to wonder about a border services officer, knowing that he is on a work plan, who gets involved in an enforcement situation that he knows is witnessed by an Agency director and does not take the required steps of documenting the incident.

841 Progressive discipline is used in work environments to correct behaviour. The last time the grievor had discipline imposed on him, he received a one-day suspension. It appears that he was candid and remorseful for that episode, as set out in the letter of discipline of July 28, 2006 (Exhibit E‑4) with respect to another incident on November 22, 2005.

842 I note that dishonesty during an investigation is a serious employment offence. The dishonesty in this case relates to a fundamental part of the employment relationship. The Agency has to place substantial trust in its border services officers to facilitate the flow of people and goods into Canada. Border services officers are left to work alone. Complaints can arise about their conduct, and the Agency expects a full and truthful account of its border services officers’ enforcement actions. There is no room for dishonesty in investigative processes, and border services officers and similar officers are held to a higher standard because of the position of trust they occupy; see McKenzie and Thomson.

843 The grievor is a trained border services officer with some seniority. Obviously, the termination had a personal impact on him and his family, and I am empathetic to those personal circumstances. Without hearing the full detail of his financial losses, I accept that it is probable that he suffered significant financial consequences from his removal from enforcement duties and his placement at the CANPASS Processing Centre. Removal from regular duties can be a blow to one’s self-esteem.

844 It is true that the grievor had no further incidents, but he had been removed from all enforcement duties during the investigation once the Agency received Ms. Hellsten’s and Ms. Backman’s statements (Exhibits E‑1 and E‑2).

845 From the grievor’s attacks on the witnesses, including suggestions of collusion and bad faith, and his attacks on Supt Ashikian, Chief Clarke and Mr. Delgaty, I have the strong sense that the grievor does not admit to any wrongdoing. The grievor still fails to see that he did anything wrong, and the only suggestion he had about his claim that one can always do better, as outlined in the changed conclusion of his statement (Exhibit E‑9, page 6) in Supt Ashikian’s report (Exhibit E‑9), which reads as follows, was that more personnel should have been on duty that night: “I could have handled the incident in a more appropriate manner and still reached a satisfactory outcome for all stakeholders.” I regretfully conclude that the grievor has no rehabilitation potential.

846 I find that termination was not an excessive response in the circumstances of this case, as the bond of trust was clearly broken by the grievor’s conduct. As a result of my findings, it is not necessary for me to consider an alternative remedy to be substituted for that imposed by the Agency.

847 For all of the above reasons, I make the following order:

IV. Order

848 The grievor’s objection to the admissibility of prior complaints made against him is allowed.

849 The grievor’s objections to the admissibility of the following evidence are denied:

• the July 28, 2006 suspension letter (Exhibit E‑4);
• the investigation report (Exhibit E‑9);
• Mr. Tse‑Chun’s statement (Exhibit E‑20);
• Supt Anderson’s testimony about use of force and its reasonableness;

850 The grievor’s application for the production of Supt Ashikian’s notes is denied.

851 The grievance is dismissed.

August 21, 2012

Paul Love,
adjudicator