OFAC 90-007
IN THE MATTER OF
A RIGHTS ARBITRATION
Between
THE OTTAWA BOARD OF COMMISSIONERS OF POLICE
and
THE OTTAWA POLICE ASSOCIATION
Grievance of Constable Gregory Brown
Arbitrator:
R. L. Jackson
Appearances:
For the Board of Commissioners of Police
Lynn H. Harnden, Counsel
Brian Wilson, Staff Sergeant
For the Police Association
Allan R. O'Brien, Counsel
John Petersen, President
Hearings were held in this matter in Ottawa on May 18, July 5, 6
and 10, and November 21, 1989.
Background to the Case
This is the grievance of Constable Gregory Brown, of the
Ottawa Police Force.
Constable Brown alleges that the Board of
Commissioners of Police (hereinafter referred to as "the Board")
violated Article 32 of the collective agreement in refusing to
provide legal indemnification to him in respect of three charges
under the Criminal Code. Article 32 is set out below.
32.01 Subject to the other provisions of this Article,
a member charged with and finally acquitted of a criminal
or statutory offence, because of acts done in the
attempted performance in good faith of his/her duties as
a police officer shall be indemnified for the necessary
and reasonable legal costs incurred in the defence of
such charges.
32.03 Notwithstanding clause 32.01, the Board may refuse
payment otherwise authorized under clause 32.01 where the
actions of the officer from the charges arose amounted to a
gross dereliction of duty or deliberate abuse of his/her
powers as a police officer.
On April 15, 1988, Constable Brown was charged under the
Criminal Code because of an incident which had taken place on the
night shift of that date, the particulars of which were set out in
a letter from the Board to the President of the Ottawa Police
Association (hereinafter referred to as "the Association").
Constable Gregory Brown witnessed the arrest and
detention of an innocent man. Knowing all along that the
arresting officer's statements were a complete
fabrication, he allowed several hours to pass before
alerting his superior officers to this deliberate abuse
of police power.
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Constable Brown engaged the services of a lawyer and, pursuant to
Article 32, applied to the Chief of Police for indemnification. On
July 22, 1988, the charges were withdrawn by the Crown Attorney.
In September, the Board decided that it would not grant the
indemnification on the grounds that the act for which Constable
Brown had been charged,
first,
was not
"in the attempted
performance in good faith of his duties as a police officer" and,
second, constituted a "gross dereliction of duty as a police
officer."
On the first day of hearing, May 18, 1989, counsel for the
Association, Mr. O'Brien, submitted that, notwithstanding that the
Association was the moving party in this case, the Board should
proceed first and bear the burden of proof.
Evidence and
submissions on that day were therefore limited to those issues and,
in an interim award issued June 3, 1989, I agreed with Mr. O'Brien.
I found in my award that the onus should be on the Board in this
case since, in effect, it was asserting the essential affirmative
case - namely, the serious allegations that Constable Brown had
failed to carry out his duties as a police officer in good faith
and had been grossly derelict in his duty.
I also directed the
Board to proceed first with its evidence because it was bearing the
onus as well as because, in view of the nature of the issues, the
facts of the case were peculiarly within the Board's knowledge.
Accordingly, when the hearing reconvened in July, Mr. Harnden, for
the Board, proceeded with his evidence first.
As his first
witness, he called the grievor, Constable Brown, subject to the
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guidelines respecting examination and cross examination of an
adverse witness as set out in Re:
Royal Canadian Mint and Public
Service Alliance of Canada (Weatherill), 20 LAC (2d) 127.
The facts, in brief outline form, are as follows.
On April
15, 1988, Constable Brown was teamed up with Constable Daniel
Sullivan on the late watch in an unmarked police car on patrol in
north-central Ottawa.
Constable Sullivan drove, while Constable
Brown rode in the passenger seat and operated the Mobile Display
[Computer] Terminal (MDT), the principal means of communication
between patrol cars and police headquarters for non-emergency
messages.
At approximately 1:55 a.m., the Brown/Sullivan car met
another police vehicle driven by Constables Michel Gayer and
Lancelot Bennett, which was stopped at the corner of York and
Dalhousie Streets to deal with a traffic infraction.
Constable
Bennett was a new police office and, as a "rookie", the subject of
practical jokes by more-senior officers.
As a joke, Constable
Brown called Constable Bennett over towards the Brown/Sullivan car
and threw a lighted firecracker at his feet, after which the car
drove away. The firecracker failed to explode properly and fizzled
out at Bennett's feet.
However, as the Brown/Sullivan car moved
away, Constable Bennett took a swipe at its rear end with his night
stick, aiming at the bumper but missing and striking the right tail
light. This blow put a hole about the size of a quarter in the red
glass of the light.
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A short time later, Constables Brown and Sullivan received a
message over the MDT from Constables Cayer and Bennett to check
their tail light. They did this, found it broken, and communicated
a request to Cayer and Bennett to join them at the corner of Sussex
and George Streets, which they did.
While all four officers were
standing by the vehicle examining the light, Sergeant O'Donnell
stopped and was advised of the damage.
He instructed Constable
Sullivan to report it.
At approximately 3:15 a.m., Constables Brown and Sullivan were
dispatched to 160 George St., a luxury condominium, to deal with a
person in the lobby.
This individual turned out to be a Mr. John
Clarke, who was known to the police and, indeed, had been in police
custody less than 24 hours previously. Mr. Clarke, dishevelled in
appearance and acting and speaking in an incoherent and irrational
manner, had had previous dealings with Constable Michael Callaghan,
who was summoned to the scene to help.
The officers succeeded in getting Mr. Clarke out of the lobby
and Constable Callaghan attempted to make arrangements with the
Salvation Army hostel, right across the street, to take Mr. Clarke
in for the night. However, he was refused admittance. Mr. Clarke
then began banging on the door of the hostel and shouting to be let
in.
At that point, Constable Sullivan arrested Mr. Clarke,
handcuffed him, and put him in the back seat of his police car.
Mr. Clarke was charged by Constable Sullivan with mischief in
breaking the tail light of the Sullivan/Brown police vehicle - the
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false charge referred to in the Board letter supra, and the act on
which this entire case turns.
Constables Brown and Sullivan then drove Mr. Clarke to the
police station on Catherine St. and booked him in the cell block.
Then they separately proceeded to the General Assignment Office
(detective office) where Constable Sullivan made out an occurrence
report, and the process of documentation for the charging of Mr.
Clarke really began. By 4:17, this was completed and the officers
went back out on patrol.
At some point, they communicated with
Constable Callaghan the contents of the occurrence report and there
is a possibility they also met Constables Bennett and Gayer,
showing them the report also.
By approximately 5:40 a.m.,
Constables Brown and Sullivan joined approximately eight of their
colleagues, including Constables Callaghan, Bennett and Gayer, at
the Fontenelle Restaurant on Montreal Road for breakfast, where the
arrest report was the subject of some discussion.
Finally, upon
arriving back at police headquarters at the end of their shift at
approximately 6:30 a.m., Constable Brown approached a superior
officer, Staff Sergeant Sarault, and advised him that the charge
against Mr. Clarke was false.
It is this sequence of events - beginning with the throwing of
a firecracker as a practical joke and culminating with Constable
Brown's advising S/Sgt Sarault of the false charging of Mr. Clarke
- that is at the centre of this case.
Constable Brown is taking
the position that the decision to charge Mr. Clarke with the
breaking of the tail light was Constable Sullivan's alone and, that
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while there were some indications that Sullivan might be going to
do this, Constable Brown thought he was joking until he saw the
actual arrest report just before they left police headquarters at
4:17 a.m. Constable Brown takes the position that he was upset and
confused at finding out that Mr. Clarke had actually been falsely
charged but, within a short time, had resolved to report the truth,
after which the only question was how, and to whom.
He did so at
the first appropriate opportunity - that is, when the officers
returned to headquarters at the end of their shift.
There are two questions of fact in all of this.
First, at
what point did Constable Brown become aware that an innocent man
was going to be, was being, or had been falsely charged and,
therefore, how long (and why) did he wait before reporting it?
Second, was he part of the decision to charge Mr. Clarke?
The
answers to these questions must then be tested against the criteria
of Article 32:
in all of the circumstances, can it be concluded
that Constable Brown was attempting to perform his duties as a
police officer in good faith and can his actions be deemed to have
constituted a "gross dereliction" of his duty as a police officer?
Evidence
This case is unusual in that the principals were police
officers and discipline was involved. As a result, three different
accounts of events by Constable Brown are in evidence: his written
statement made on April 15, 1988, immediately after the events
described above, the transcript of his testimony in an internal
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police disciplinary tribunal which took place on July 29, 1988, and
his testimony in this hearing. For most of the witnesses, there is
a written statement taken immediately after the events as well as
their testimony at this hearing.
In view of the sequential nature of these events, the evidence
will be reviewed as it relates to a number of key events, phases or
elements which were part of this chain of events. Also, given that
much of the evidence is in conflict, a considerable amount of the
testimony will be set out verbatim in order to better reveal the
points of conflict as well as to present a clearer picture of the
unfolding of this series of events from the different perspectives
involved.
Constable Daniel Sullivan
Since this case turns on an act admittedly carried out by
Constable Sullivan, the other officers' perception of him and his
relationship with Constable Brown seem relevant.
First, the
evidence establishes that Constables Sullivan and Brown had been
teamed up only since the beginning of April.
Constable Brown, in
his testimony before me, made it clear that he was not particularly
happy to be assigned Sullivan as a partner, that he had heard
disturbing things about Sullivan prior to the assignment and had
asked to be reassigned.
Constable Sullivan was described by
Constable Brown as "sort of dangerous and unpredictable." Another
officer, Michel Gayer, characterized him as "a different person;
sometimes you didn't know how to take him."
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The Meeting at Sussex and George Streets - 1;50 a.m.
There is no dispute over whether or not Constable Brown
actually threw a firecracker at Constable Bennett nor over whether
or not Constable Bennett actually broke the tail light.
Hence,
this sequence of events began with the second meeting of Constables
Brown, Sullivan, Cayer and Bennett, together with Sgt. O'Donnell,
at the corner of Sussex and George Streets in order to inspect the
damage to the Brown/Sullivan car's tail light. This meeting itself
may be important because it was at this point that a linkage
between the broken light.and a thrown rock was first made.
Both
Constables Bennett and Cayer testified that, in the discussion at
this meeting, the throwing of a rock was suggested by Constable
Sullivan as the cause of the damage.
Their written statements,
given later that day, speak to this point.
Constable Cayer: On arriving at that location writer
(Constable Cayer) observed that they had a car pulled
over. Writer parked beside them. Sullivan and Brown
looked at the writer smiling. Sullivan stated "do you
know what your slug [police slang term for rookie
officer, i.e. Bennett] did to our car?" Writer asked
them what and Sullivan stated that the right rear
taillight lens was broken.
At this point writer believed that Sullivan and Brown
were setting up Bennett for a prank.
Writer, Bennett, Sullivan and Brown got out of the cars
and went to look at the damage.
Bennett stated that after the firecracker incident he
attempted to tap Sullivan's police car rear bumper with
his baton, missed and possibly hit the tail light lens.
He felt he hadn't hit it hard enough to break it.
Writer then commented to Bennett that he would be brought
to the station by writer so that he could write a memo to
S/Sgt. Lauzon explaining the incident. Sullivan then
commented that it wouldn't be necessary since someone had
earlier thrown something at their car possibly causing
the damage. Sullivan then said to Bennett, smiling, "I
own you".
Bennett: We met 301A (the Sullivan/Brown car) ...shortly
after Sgt. O'Donnell drove up and stopped. At this time
Constable Sullivan said that a person had just thrown a
rock at his car and broken his tail light.
Sgt.
O'Donnell told him to make a report on the incident.
Sgt. O'Donnell then drove away.
Constable Gayer had started to suggest that I make a
report to the Staff Sergeant re the damage to the vehicle
but Constable Sullivan took matters into his own hands
when he told Sgt. O'Donnell that the tail light had been
broken by someone else.
Constable Gayer's testimony in this arbitration hearing was
consistent with the above statement. Constable Bennett's evidence
was also consistent with his statement and,
further, placed
Constable Brown "at the same location, within earshot of O'Donnell11
so that, since it was very quiet, he would have had no trouble
hearing what Constable Sullivan had said.
Constable Brown's accounts present a slightly different
picture.
In his April 15, 1988 statement, he merely said that,
when Sgt. O'Donnell drove up, "we told him that our tail light had
been broken."
During his examination-in-chief in the internal
disciplinary hearing of July 29, 1988, Constable Brown gave a
rather more detailed account of this exchange.
I guess that the next point...would be regarding Sergeant
O'Donnell and what was said to Sergeant O'Donnell by
Constable Sullivan.
There were four of us gathered
around, myself, Constable Bennett, Constable Gayer and
Constable Sullivan and we were trying to figure out how
the tail light managed to get smashed and, at that point,
I don't believe that Lance knew that he had broken the
tail light. At least, this is what I was told. Lance
never told us that he broke the tail light and we were
uncertain as to how the tail light was broken. Sergeant
O'Donnell pulled up. I believe Dan - Constable Sullivan
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- told him that our tail light had been broken and we
were discussing ways that it could've been broken by a
rock flying up or somebody possibly throwing a rock at
the car.
That, to me, would be the most logical
explanation for how the tail light got broken, would be
that somebody - somebody threw a rock at our car.
In his
evidence
in this
arbitration hearing,
however,
Constable Brown gave what appeared to be a somewhat different
version of events.
In answer to Mr. Harnden's questions with
respect to the discussion between Constable Bennett and Sergeant
O'Donnell regarding the light, Constable Brown replied that,
"Sullivan talked to O'Donnell" and "I wasn't privy to that
conversation."
At 1:59 a.m., the Sullivan/Brown car sent a MDT message to
police headquarters, logged as follows:
Damage to rear right tail light - rock or object
apparently hit vehicle.
160 George St. - 2:53 a.m.
As noted earlier, Officers Brown and Sullivan were called to
a condominium at 160 George St. in order to deal with an intruder
in the lobby. This turned out to be John Clarke. The two officers
called for assistance from Constable Callaghan and together they
managed to get Mr. Clarke out of the lobby. At that point, another
MDT message was sent from the Brown/Sullivan car and logged at
police headquarters.
Unfortunately this person hasn't violated any laws, he's
on his way again, expect more calls.
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John Clarke's Arrest - 3;14 a.m.
In his April 15 statement, Constable Brown related that, when
Constable Sullivan had put the handcuffed Mr. Clarke into the back
seat of their police cruiser, he asked Sullivan "what did you
arrest him for?" to which Constable Sullivan replied "mischief".
After explaining that he would have arrested Mr. Clarke for
"causing a disturbance", Constable Brown's statement continued:
Anyhow, Dan put him in the back of the car.
Mike
(Callaghan) and I looked at each other with our eyebrows
raised. I'm not sure if it was at this point or some
point on the way to the station that I asked Dan what he
was talking about. He replied that this was the person
who had broken our tail light.
The evidence from the July disciplinary tribunal sharpens the
focus somewhat and slightly changes the timing on what may have
transpired at this point.
... Dan got out of the car and went up and put the
handcuffs on Mr. Clarke. He came back....Dan put him in
the back of the car. I asked him in the presence of
Constable Callaghan what's he under arrest for and he
didn't say mischief at first. He said "Damaging the tail
light of our car."
In his evidence-in-chief before this arbitration. Constable Brown
testified that "Sullivan told me this is the guy who smashed our
tail light" and that Constable Callaghan was present when he said
it. Constable Callaghan, who testified as a witness for Constable
Brown, could not recall if Constable Sullivan had said what the
arrest was for.
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The Drive to the Police Station
The only source of evidence with respect to what transpired in
the police car on the drive to the police station comes from
Constable Brown - his April 15 statement, his testimony at the
disciplinary tribunal and his evidence at the instant hearing. The
evidence from all three of these accounts paints the same picture:
that the thrust of the discussion in the car was Constable Brown's
arguing that the charge should be "causing a disturbance", that the
mood was tense, and that Constable Brown was getting agitated and
upset, to use his own words.
The Cell Block at Police Headquarters - 3;30 a.m.
Sgt. Anthony Yantha was in charge of the police cell block on
the morning of April 15. Mr. Clarke was already well known to Sgt.
Yantha because he had been in custody in the cell block twenty-four
hours earlier and had flushed his clothes down the toilet.
According to Sgt. Yantha's testimony, when Constables Brown and
Sullivan brought Mr.
Clarke in at approximately 3:30 a.m.,
Constable Sullivan took Mr. Clarke to the booking desk while
Constable Brown came to his desk. Sgt. Yantha asked why Clarke had
been brought in again, to which Constable Brown replied, "don't ask
me; it's Sullivan's case." In Sgt. Yantha's own words,
I repeated, "you must have an idea why he's being brought
in".
Constable Brown replied "something to do with
'damage to auto'".
Asked if he was certain that this was Constable Brown's reply, Sgt.
Yantha's response was that he was 99.9% sure. This account accords
13
with the written statement Sgt. Yantha gave upon his return to duty
on April 21, after his regular days off.
Constable Brown's three accounts of what transpired in the
cell block reveal some variances, both between each other and with
respect to Sgt. Yantha's version.
His April 15 statement:
Dan and I took the prisoner out [of the car] and I said
again, "causing a disturbance." I don't remember if Dan
said anything. At this point I wasn't sure what his
intention was to do, if he was fooling around or not
about the light.. .I'm not sure on this point, somehow Dan
mentioned to someone that the person we had was for
breaking our tail light; I'm not too sure who he said it
to or why. And I looked at him, with a "get serious"
type of look, a head nod....
In the testimony bufore his disciplinary tribunal, Constable Brown
specifically denied that he had mentioned "damage to auto" to Sgt.
Yantha.
He made the same specific denial in this hearing.
The Detective Office - 3;45 a.m.
There is, again, some variance in Constable Brown's three
accounts of what he knew or heard while in the detective office or,
i
at least, when he heard or learned it. In his April 15 statement,
Constable Brown se.id,
I went up the Detective Office to see what was keeping
Dan. He was talking with Jean Paris about . this guy
breaking the tail light. He had done his report and I'd
made up my mind at this point that I wasn't going to do
a report and be involved...
His evidence-in-chief before the disciplinary tribunal:
I went upstairs and S/Sgt. Sarault had some radios that
were confiscated and we were joking around on the radios
between S/Sgt Sarault and I...Constable Sullivan was
sitting four or five tables way typing the report, which
I assumed was going to be for causing a disturbance,
because I think that's what he had settled on in the car.
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He said, "don't worry, it's causing a disturbance". He
got up and we started going and I took his report and I
read it and the caption on the top was "Damage to
property - police force."
I started reading it.
Needless to say, I was quite taken aback by it by what he
had put in his report.
In his evidence in this arbitration, Constable Brown testified
that, upon entering the detective office, he neither saw Constable
Sullivan talking to anyone nor remembers hearing Sullivan say
anything about Mr. Clarke.
In his examination-in-chief, S/Sgt. Sarault testified that
Constable Brown arrived in the detective office approximately ten
minutes after Constable Sullivan, and that he sat down on the other
side of Sarault's desk, approximately five feet away. Sullivan was
sitting talking to Detective Jean Paris two desks and ten to twelve
feet away from Constable Brown. S/Sgt. Sarault and Constable Brown
talked for "almost the entire time he [Brown] was in the office."
Asked if he and Constable Brown would have been able to hear the
discussion between Detective Paris and Constable Sullivan, S/ Sgt.
Sarault responded that "we would've been able to hear it, yes,"
adding later that it is difficult to have a private conversation in
that office.
In cross examination, it was put to S/Sgt. Sarault by Mr.
O'Brien that it was not until he and Sullivan had left the
detective room that Constable Brown knew that Mr. Clarke had been
booked for "damage to auto." S/Sgt. Sarault's response:
It's my opinion that, with all the conversations going
on, if he was in the office while this [the conversation
and joking about the broken light] was going on, there's
no way he wouldn't have known. We were joking about it.
I don't remember at what point Greg came into the office.
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Question:
You don't know if Brown was present for the
joking?
Answer: When we were joking about the police car, I can't
say whether he was there, that's correct...If he was
present, there's no way he wouldn't be aware of what was
said.
Constable Gerard Sabourin was also present in the detective
room that morning.
He testified that,
when he entered the
detective room, both Constables Brown and Sullivan were there,
sitting perhaps fifteen to twenty feet apart.
Sullivan was
discussing the case with Detective Paris. Constable Sabourin heard
somebody mention damage to a police car by a rock thrown.
Constable Sabourin asked Constable Sullivan why the rock-thrower
had not been arrested at the time, to which Sullivan responded,
because Brown was too busy giving out traffic tickets.
Constable Sabourin's written statement adds more precision to
above account.
I recall at this time Constable G. Brown sitting on a
chair, in the front row, approximately in the middle of
the Detective Office. Constable Sullivan at this time
was sitting at a chair behind desk with a typewriter in
far corner close the bulletin board.
Det. Paris was handling their case and was asking
questions to Constable Sullivan. I was working on my
case at this time, where I remember Constable Sullivan
saying that the police vehicle got damaged. He also
added that it was the Fraud Car and that this guy, that
was presently in the cells, had thrown a rock at the back
light assembly and had broken the light.
I recall asking, why he wasn't arrested at the time and
Constable Sullivan answered jokingly that Brown was too
busy giving out his traffic tickets...
S/Sgt. Sarault at this time asked Brown jokingly, was
he worried about his traffic tickets...
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Constable Sullivan had also mentioned that the guy was
arrested in front of the Salvation Army on George St,
when he was arrested about half an hour later.
Leaving the Station - 4:17 a.m.
Constable Brown's statement of April 15, does not pinpoint the
exact time he realized that a false arrest report had been
submitted on Mr. Clarke.
In his examination-in-chief during the
disciplinary tribunal, Constable Brown identified the moment of
realization in the sequence noted supra at p. 13 - that is,
Constable
Sullivan finishing his report,
handing a copy to
Constable Brown and the two officers walking out of the detective
room towards the elevators with Constable Brown reading his copy
and realizing that, indeed, Mr. Clarke had been falsely charged
with "damage to auto".
This testimony goes on, dealing with
Constable Brown's reaction:
...I looked at him, like, is this [for real]? Did you
make a duplicate and - you know - the big joke is on Greg
and everyone going to laugh at me at breakfast in the
morning? But, he looked serious and I said - I knew at
that point that he had framed Mr. Clarke.
Constable Brown's evidence before this arbitration reinforces this
reaction - that, for a moment, he thought it was a dummy charge
report done up as a joke and then, when he realized this was the
report, he knew Mr. Clarke had been falsely charged.
Back on Patrol - 4:17 to 5;40 a.m.
There are perhaps three important elements in this phase Constable Brown's state of mind and thoughts, a meeting or
interchange between the Brown/Sullivan car and Constable Callaghan,
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and an alleged meeting between Brown and Sullivan and Constable
Bennett.
First, Constable Brown's state of mind and thinking
during this period.
April 15th Statement
I wasn't sure what to do at this point about what he
had said [i.e. that Clarke had broken the light]. He's
more senior than me. He'd already made a report and told
detectives about it. In my mind, I thought it was wrong,
but I didn't know exactly what to do about it. I wasn't
sure what to do about it. I was kind of confused. He's
a senior officer and I wasn't sure if I should just drop
it and let him take responsibility for what he did or
tell the truth and get him in a lot of trouble. There's
always the informal rule of police conduct to stick by
your partner and not be a rat or something...
Disciplinary Tribunal - Evidence-in-Chief
...I was confused for a few minutes. Needless to say,
I read the report and I was trying to figure out what to
do. My partner has just framed somebody for a serious
criminal offence; he's put himself in jeopardy and put
me in jeopardy and my mind was going, what can I do, what
should I do.
...On our way out, I pretty much formulated that idea
that I - that I had an obligation to see that this was
rectified. I wanted to know how to do that.
Arbitration Hearing Evidence
Direct Examination (by Board Counsel)
I realized it was serious; I didn't know what to
do.
I was pondering the whole thing.
I was
shocked that someone had done such a thing. I
thought about what had happened, what was going to
happen.
Cross Examination (by Association Counsel)
Question:
How long after the false report was
filed - that is, when you knew it was serious - did
you decide to report it?
Answer: Approximately 20 minutes to half an hour.
Question: If you did not report it, do you think
Sullivan's false report would have been discovered?
Answer: No. We were off for six days.
have been forgotten.
It would
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Question:
Why did you decide to report it?
Answer: He did something wrong. Clarke was going
to be charged for something he didn't do.
Some time later, the contents of the arrest report were
communicated to Constable Callaghan;
there are two somewhat
different versions of how this occurred, both of which came from
Constable Brown himself.
In his statement of April 15, Constable
Brown said the following.
We went out on the road, if I recall correctly.. . I
think I sent a computer message to Mike Callaghan, I'm
not sure. I explained what had happened and Mike sent
back on the computer, "A Travesty of Justice."
However, in his examihation-in-chief in the disciplinary hearing,
Constable Brown recounted this event in a different way - namely
that it took place in the form of a "drive-by" (two police cars
stopping with the officers remaining inside and talking briefly).
We went out and we ran into Mike Callaghan on York
Street, I believe, and Dan rolled down his window and
passed Mike the report and Mike looked over at me and I
looked at Mike and we raised our eye brows. I kind of
mouthed to him - you know - "what should I do?" He sent
me a message on the computer that said that this was a
travesty of justice and I sent back, "no, it's more like
a tragedy of justice." And at that point, I made up my
mind that something had to be done.
Constable Brown's testimony in this arbitration was consistent with
this latter account.
Constable Callaghan's written statement also speaks about this
event:
I saw Constable Sullivan and he showed me a copy of a
report for damage to property with Clarke's name on it,
as the accused. I then handed him back the report and
left. I then realized what was taking place and sent a
message to Cst. Brown and stated that this was a travesty
of justice and wasn't right. Cst. Brown then sent a
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message stating that he had nothing to do with it and
thought that Clarke had been placed under arrest for
causing a disturbance. There was then no other mention
of the incident until we were at breakfast...
The third and final incident of this phase was an alleged
meeting of the Sullivan/Brown and Cayer/Bennett cars at some point
between the departure from the station at 4:17 and arrival at the
Fontenelle Restaurant at 5:40.
However, the only evidence of such
a meeting came from Constable Bennett;
Constable Cayer did not
mention it in his written statement and denied in cross examination
in the arbitration hearing that such a meeting took place. Neither
did Constable Brown mention any such meeting in his April 15
statement or in either the direct or cross-examination stages of
his disciplinary hearing.
In his written statement of April 15, Constable Bennett made
the following comment:
Later during the shift, Cst. Sullivan and Brown met us
[Cayer and himself] again and showed us a report (typed)
that implicated a Mr. Clarke for the breaking of the tail
light.
Constable Bennett's testimony in this hearing with respect to the
meeting went as follows:
Later in the shift, I don't know when, I recall being
with Brown and Sullivan again.
During our regular
progress we bumped into them. We saw the officers' copy
of the police report. Neither of us paid much attention
to it.
Asked about the expression on their faces, Constable Bennett
testified that both Constables Sullivan and Brown were smiling, but
added that that would be normal on meeting a couple of fellow
20
officers. Asked what he thought at the time of the contents of the
report, Constable Bennett replied,
I knew nothing. I paid no attention to it at all, only
when I was brought back to the station [did he read it
and think about it carefully]. I believed I was in
trouble for breaking the tail light and not reporting it
right away.
Asked how he could have named Mr. Clarke in his written statement
of April 15 (supra), he said,
This was a statement made in retrospect. At the time I
didn't know who Clarke even was. We knew nothing of any
arrest. It was all news to us [later].
Asked what interpretation he had placed on Brown's and Sullivan's
smiles, Constable Bennett replied,
I assumed they referred to the tail light damage, the
report Sullivan said he would make reference to a rock.
I assumed it would be a fictitious person. There were no
suspects, no witnesses, merely a reporting of damage.
Constable Brown, in his arbitration evidence, could not recall
any such meeting.
The Fontenelle Restaurant - 5;40 to 6;10 a.m.
The two officers stopped for breakfast at the Fontenelle
Restaurant and joined approximately eight other officers, also
having breakfast. Constable Brown sat with Constable Callaghan and
another officer, Constable Constenzo. Constable Sullivan sat with
Constables Gayer, Bennett and Arbour. This meeting was mentioned
only in passing in both Constable Brown's April 15th statement and
in his
disciplinary
tribunal
examination-in-chief
in which,
however, he made clear that, by this time, he had decided to do
something. "We discussed the matter and I was quite upset about it
21
and I had - I was convinced in my mind that I had to do something
about it."
In the cross examination of the tribunal, Constable
Brown was asked why he did not do something by way of reporting it
by phone at that point.
At that time, I didn't know that the time factor was
going to be - you know - an issue. If I go in at the end
of shift and report it, what difference does it make -I
could be technically jeopardizing my life in the
Fontenelle, because of an armed man, I'm going to get up
and use the phone after he just committed a serious
criminal offence.
It didn't go into my mind that I
should use the phone.
Asked the same question at the arbitration hearing, Constable Brown
replied that using the phone to report it would not have allowed
him to go through the proper follow-up activities.
The testimony of Constables Brown and Bennett agree that, at
the restaurant, the damage report was passed around by the officers
and was the subject of discussion. There was some suggestion that
there was some laughing but, whether this was with respect to the
report or the breaking of the light by the rookie, Bennett, is not
clear.
Upon leaving the restaurant, Constables Brown and Sullivan
drove back to the police station where, at the first available
opportunity, Constable Brown reported what had happened to S/Sgt.
Sarault.
Findings of Fact
There are, again, two matters of fact to be decided: first,
at what point in this sequence of events Constable Brown did know
that Mr. Clarke was going to be, was, or had been falsely charged;
22
and second, was Constable Brown part of the decision to charge Mr.
Clarke.
It is clear that it was at the time of the meeting at the
corner of Sussex and George Streets (approximately 2:00) that the
suggestion that the tail light had been broken by a rock, and not
by Constable Bennett, was first made.
The evidence of both
Constable Gayer and Bennett corresponds on that point, as does
Constable Brown's testimony at the disciplinary tribunal. The MDT
message sent from Unit 301A, presumably by Constable Brown, "Damage
to rear right tail light - rock or object apparently hit vehicle",
makes any other conclusion insupportable:
not only was the
suggestion that it was probably a rock which had broken the glass,
but it was acted upon and reported that way. It is clear that, as
of
1:59
a.m.,
Constable Brown was well
aware of
the rock
hypothesis.
With Mr. Clarke's arrest at 3:14, the hypothesis was refined,
with Mr. Clarke as the thrower of the rock which broke the light.
All three of Constable Brown's accounts - his statement of April
15th, and particularly his testimony at the disciplinary tribunal
and his testimony before me - make clear that, when Mr. Clarke was
arrested, Constable Sullivan told Constable Brown that it was for
mischief, in the breaking of the tail light.
With the arrival of the officers at police headquarters at
3:30 a.m., we are faced with directly contradictory evidence: Sgt.
Yantha testified that Constable Brown said that Mr. Clarke had been
brought in for "damage to auto", while Constable Brown denied
23
saying this.
Given the certainty and precision of Sgt. Yantha's
testimony, the fact that there is no apparent reason why he would
tell other than the truth - all in the context of the foregoing
evidence which clearly establishes that Constable Brown must have
known what the charge was likely to be T I must conclude that,
indeed, Constable Brown did say, when asked a second time by Sgt.
Yantha, that Mr. Clarke had been brought in for "damage to auto".
With respect to what transpired in the detective office, we
again have contradictory testimony, not only between Constable
Brown on one hand and S/Sgt. Sarault and Constable Sabourin on the
other, but between Constable Brown's own statements. While in his
statement of April 15, Constable Brown stated that Sullivan was
talking to Detective Paris and was heard to say something about a
"guy breaking the tail light", in his testimony before me, he
denied this.
S/Sgt. Sarault's evidence on this was emphatic and clear: if
Constable Brown was in the room, then he heard the discussion and
could not have helped but know that Mr. Clarke was being charged
for breaking the light. The only element of doubt in this evidence
was whether or not Constable Brown was in the room at the time of
this discussion.
This doubt was eliminated by Constable Sabourin, both in his
written statement and in his evidence before me.
When Constable
Sabourin entered the room, Constable Brown was already there and,
indeed, participated in the banter about the breaking of the light.
Unless both S/Sgt. Sarault and Constable Sabourin are either
24
mistaken or not telling the truth, then Constable Brown knew that
Mr. Clarke was being charged with the breaking of the tail light.
Given that there are two disinterested witnesses, both of whom gave
testimony consistent with each other and with the sequence of
events which had preceded their roles, I must find that Constable
Brown heard, and was fully aware of, the fact that Mr. Clarke was
being falsely charged during his presence in the detective office.
There is a dispute in the evidence with respect to how
subsequent communications with Constable Callaghan took place whether through MDT messages between the cars or at a "drive-by".
However, both Constable Callaghan's written statement and testimony
as well as Constable Brown's written statement and testimony agree
that it was at a drive-by.
There is also directly contradictory
evidence with respect to the meeting between the Cayer/Bennett and
Brown/Sullivan cars which Constable Bennett testified took place.
However, neither of these meetings is material to the issues on
which this case turns.
There is general agreement in the evidence with respect to
breakfast at the Fontenelle:
Constable Brown was concerned, and
the report was passed around.
It seems clear on the evidence that
Constable Brown had resolved to report what had happened, and that
it was only a question of how and to whom.
It was argued on behalf of Constable Brown that, for all of
the time between Mr. Clarke's arrest and Constable Brown's reading
of the damage report, to the extent he was aware of the possibility
of a charge over breaking the light, he thought it was a joke,
25
given Constable Sullivan's well-known penchant for fun. What came
out much more strongly in the evidence, however, was that Sullivan
was perceived by his fellow officers, especially Constable Brown,
to be "unpredictable", "different", "dangerous1^'. This perception
could only have lent credence to the notion that Sullivan, in fact,
was going to charge Mr. Clarke with damaging the light.
Constable Brown also testified that, having sent the 3:07 a.m.
message that "this person hasn't violated any laws" - that is,
documentary evidence that the officers knew before the fact that
Mr. Clarke was innocent of breaking the light - he did not think
his partner could be foolish enough to then proceed with a charge
based on the light.
This argument is weakened by the above
characterization of Constable Sullivan, but it is undermined
entirely by Constable Brown's own testimony when, in responding to
Mr. O'Brien's question as to whether or not he thought Sullivan's
false charge would ever be discovered, he replied, "No.
off for six days.
We were
It would have been forgotten."
Given all of the foregoing evidence, I must conclude that
Constable Brown was aware of the false charge against Mr. Clarke,
probably from the outset, but certainly by the time the officers
reached the detective office. With everything that had transpired
- the statement at the meeting at Sussex and George, the reporting
of the broken light, Constable Sullivan's statement when arresting
Mr. Clarke, Constable Brown's statement of "damage to auto" to Sgt.
Yantha in the cell block - Constable Brown could only have been
26
very close to certain what was going to happen by the time he
arrived at the cell block.
I would go so far as to say that Constable Brown knew - even
if he did not have absolutely conclusive evidence to support his
belief - what Constable Sullivan planned to do.
This knowledge
could only have been further confirmed to the point of absolute
certainty by the conversation that he heard in the detective
office. Thus, I find that Constable Brown knew about the impending
false charge upon arrival in the cell block and, most likely, from
the time Mr. Clarke was arrested.
The other question is whether or not Constable Brown actually
took part in the decision to falsely charge Mr. Clarke.
There
would be a superficial plausibility to the suggestion that he did,
at least at the beginning.
The story about the rock was a
relatively innocent one until Mr. Clarke became part of it;
that point, it acquired a dramatic degree of seriousness.
at
The
evidence, and particularly Constable Brown's sending of the MDT
message about "a rock or object" apparently hitting the vehicle,
suggests that he may have gone along with the rock story as long as
it only involved "a fictitious person", to borrow Constable
Bennett's term.
However, the evidence suggests very strongly that, by the time
the officers arrived back at headquarters, Constable Brown was very
unhappy with Constable Sullivan and with how Sullivan was handling
the case.
His statement to Sgt. Yantha, "Don't ask me; it's
27
Sullivan's case", makes that clear.
Accordingly, I find that,
while he may have gone along with the rock story before Mr. Clarke
entered the picture, he did not approve of, nor participate in, the
charging of Mr. Clarke with breaking the light.
He was aware of
it, however.
Award
In his submission, Mr. Harnden did not argue that Constable
Brown's actions constituted gross dereliction of duty;
is not necessary for me to deal with that.
hence, it
The question remains,
however, as to whether or not the actions for which he was charged
- namely, the delay in reporting the false charge - constituted an
attempt to perform his duties as a police officer in good faith.
The Board argued that the lapse of almost four hours between the
arrest and Constable Brown's report did, in fact, represent failure
to so perform his duties.
Let me work backwards on this.
Mr. O'Brien argued for the
Association that it simply was not feasible for Constable Brown to
report what had happened from the patrol car on the road.
with that.
I agree
Constable Brown was faced with the prospect of making
an extremely serious charge against a fellow police officer. Such
a charge would
immediately generate
numerous questions
and
requirements, such as the giving of statements and the confronting
of Sullivan, which could not feasibly or practicably be carried out
while on patrol, particularly while communicating via the MDT. The
same is true for the Fontenelle; a public restaurant equipped only
28
with a pay phone offering no privacy would hardly be an appropriate
venue to take the first step in what amounted to a serious charge
against another officer. Had Constable Brown reported from the car
or restaurant, the inevitable result would have been an order for
both to return to headquarters immediately anyway.
As well, I accept Constable Brown's evidence that, at that
point, he did not appreciate that time would be so vital.
He had
no way of knowing, for example, that he might have headed off the
starting-up of the court machinery against Mr. Clarke, nor that his
delay could turn out to be a pivotal factor in an arbitration
hearing.
Thus, when Constable Brown got back into the car at 4:17, he
was committed to not reporting the false charge until the end of
the shift, unless some other assignment brought them back to
headquarters in the meantime.
Therefore, the decision turns on
Constable Brown's failure to take action while at headquarters
between 3:30 and 4:17.
I have found that Constable Brown knew, with a very high
degree of certainty, what Constable Sullivan was going to do as the
two officers arrived back at headquarters with Mr. Clarke. I must
therefore find that Constable Brown had adequate opportunity to
take action while at headquarters. First, he could have spoken to
Sgt. Yantha in the cell block;
he remained in the cell block for
some time after Constable Sullivan had gone upstairs to the
detective room, and could have voiced his suspicions to Sgt. Yantha
in confidence. Second, he could have told S/Sgt Sarault, with whom
29
he spent considerable time in the detective room. Finally, once he
had seen the report, he could have gone back to the detective room
and reported it to S/Sgt Sarault.
While Constable Brown had adequate opportunity, I am not
suggesting for a moment that this would have been easy. Constable
Sullivan was a fellow police officer, senior to Brown and, most
important of all, his partner. Reporting on Constable Sullivan's
actions would have required Constable Brown to violate three
important police norms:
not "ratting"
on another officer;
respecting the judgements of more experienced officers;
and
protecting one's partner.
Having said that, however, when a police officer has knowledge
of a false charge being laid against an innocent person, it is
clear where his/her duty lies: that is, in seeing either that the
charge is not laid or that it is reported to competent authorities
as soon as possible.
evidently valid.
It seems to me that this conclusion is self-
In addition, however, the Police Act speaks to
the concept of the duty of a police officer.
Regulation 791 and
the Code of Offenses include "Neglect of Duty" which takes place
when an officer
(vi) fails to report a matter that it is his duty to
report
or
(vii) fails to report anything that he knows concerning
a criminal or other charge, or fails to disclose any
evidence that he, or any person within his knowledge,
can give for or against any prisoner or defendant.
30
Clearly, both of these - but particularly the latter - apply
to Constable Brown's actions in this situation.
Thus, while he
faced a very difficult choice, it must be concluded that Constable
Brown did not carry out his duty as a police officer - in good
faith or otherwise - when he failed to take some action either to
prevent the laying of a false charge against Mr. Clarke, to stop
the process while it was in progress, or to report it immediately
afterwards.
It is to Constable Brown's credit that he reported the
incident at the end of the shift, given that it might never have
come to light otherwise.
It must also be reiterated that, for
Constable Brown to have taken action while at the police station
would not have been at all easy, for the reasons cited above.
Nevertheless, in view of the facts of this case, it cannot be said
that the criminal charges arose "because of acts done in the
attempted performance in good faith of his duties as a police
officer."
Accordingly, then, the Board was absolved of its
responsibility under Article 32 to indemnify Constable Brown and
for that reason, the grievance must fail.
Dated at Kingston, this 30th day of March, 1990.
L. Jackson