IN THE MATTER OF AN ARBITRATION

between

The City of Police Services Board

and

The Barrie Police Association

Grievance of Constable Keith Blackmore

Before : R. L. Jackson Sole Arbitrator

Appearances: For the Grievor: Ian Roland, Counsel Constable Tom Sinclair, President, Police Association Constable Keith Blackmore, Grievor

For the Board: Malcolm Winter, Bass Associates Ltd. J. Delcourt, Reg Bornor, Vice Chair, Police Services Board Shirley Hrynyk, Secretary to the Board

A hearing was held in this matter in Barrie on 20 June 1994. Introduction This is a grievance of the Barrie Police Association against the Barrie Police Services Board for its refusal to pay the legal costs of defending one of its members, Constable Keith Blackmore, against the criminal charge of sexual assault. The relevant provision of the collective agreement is Article 16.01, which is set out below. The Board agrees to maintain a liability policy protecting all members of the Association from any costs arising from civil or criminal actions. The Board shall pay the legal costs that any member of the Association may incur in defending himself against any criminal charge arising out of the performance of his duties. This shall include any legal costs incurred as a result of a Coroner's Inquest or other legal tribunal, subject to: (a) Approval for retaining legal counsel must first be obtained from the Board through the Chief of Police. (b) This section does not apply when charges are made under the Police Act. In the event that a member is found guilty of a criminal offence arising out of the performance of his duties, the Board will review the circumstances and may pay the legal costs in defending him. In the event the Board refuses to pay such costs, the member may appeal to a third party to settle the issue. The basic facts of this case, set out in an agreed statement of fact submitted by the parties, are that Constable Blackmore was on traffic patrol on the night shift (7:OO p.m. to 7:OO a.m.) on March 31/~pril1, 1990. At approximately 2:30 a.m., he picked up a female adult civilian, Lucy Gualtieri, and, at her request, drove her to her home in Angus, approximately 12 miles from Barrie. In doing so, he was absent from his patrol area (the City of Barrie) for perhaps twenty minutes without the permission of his supervisor and, apparently, without the knowledge of his supervisor or the department. As a result of a complaint by Ms Gualtieri, Constable Blackmore was charged with sexual assault. He was tried and acquitted of this charge in October of 1992. In December of 1992, constable Blackmore was disciplined by the Barrie Police Service with a penalty of eight hours of overtime; he did not grieve this discipline. The Barrie Police Association paid the legal costs associated with defending Constable Blackmore - some $30,000, according to the evidence - and, upon his acquittal, requested reimbursement from the Police Services Board, pursuant to Article 16.01 of the collective agreement. The Barrie Police Services Board subsequently refused to reimburse the Police Association for these costs, thus giving rise to the grievance which is the subject of this arbitration. In addition to the issue of indemnification, there is some dispute with respect to the proper amount of legal fees which should be subject to the provision. ~ccordingly,the parties asked that, should I find for the ~ssociation,I remain seised so that, in the event the parties cannot agree on the appropriate amount, we can reconvene to deal with that issue.

The issue placed before me by the parties was a very narrow one and was simply izhis: In driving Ms. Gualtieri home, was Constable Blackmore performing his duty, or was he not? As far as this arbitration is concerned, there can be no issue with respect to sexual assault, since the Board did not call any evidence in that regard or in any other.

Evidence Constable Blackmore was on duty in a marked traffic vehicle and in uniform on the night shift on the night of March 31/April

1, 1990. Being on traffic patrol, he was responsible for the entire City of Barrie, not just a particular patrol zone. At the time of the incident, Constable Blackmore had had some fifteen years of experience as a police officer. When Constable Blackmore first encountered Lucy Gualtieri, at approximately 1:30-1:45 a.m., he was on traffic patrol with Fielding, who was riding in the passenger seat. Since the bars were in the process of emptying, this was a busy time for the police. Lucy Gualtieri first approached the police car in the parking lot of Mike's Milk Store in Barrie. Ms Gualtieri came up to the car on the passenger side, spoke to Constable Fielding, and requested a ride to her home in Angus, approximately twelve miles from ~arrie. It was evident from the way she was walking that she had been drinking. Constable Fielding told Ms Gualtieri that they could not drive her home because it was out of their patrol zone. She asked again, and he repeated that the officers could not drive her home. She angrily pushed away from the car and started walking in an easterly direction on Highway 11. One of the officers shouted after her that she was going the wrong way. Nevertheless, she continued walking in that direction. The officers continued their patrol and, at approximately

2:00 a.m., Constable Fielding was dropped off at the police station. Constable Blackmore went back out on patrol and again saw Lucy Gualtieri, this time in a phone booth at Simcoe St. and Fred Grant Square. He stopped the car to make sure she was all right, and she came over to it. By this point, she was upset and crying. She again asked for a ride home, saying that she wanted to see her son. She still showed signs of drinking, and Constable Blackmore characterized her condition as similar to that of an impaired driver: "If she'd been driving, she would have been impaired." Constable Blackmore decided to take her home to Angus. He did not inform the dispatcher because, he said, he figured he could do it quickly enough that there would not be any difficulty. He did not send her home in a cab because he did not have enough cash to pay the cab. He justified this decision on the basis of the risks to MS ~ualtieriif she were left alone in her condition: she could have fallen; she could have wandered out onto the highway and been hit by a vehicle; she could have been victimized by someone. He did not take her to the police station, he said, because he did not consider it appropriate for her to spend the night in jail and also because it was departmental policy to minimize the number of people in custody. Asked in cross-examination why he agreed to take her home at this point when he had refused before, he replied that Ms Gualtieri had first been encountered just as the'bars were getting out - that is, at a very busy time. Additionally, on the second encounter, she was very much more upset, and crying. At about the outskirts of the city while driving Ms Gualtieri to Angus, Constable Blackmore received a call from the dispatcher to check out three illegally parked cars. He stopped the car, made a note of the details, and then drove on to Angus, intending to carry out his tasks after he returned to Barrie. He did not mention to the dispatcher that he was driving Ms Gualtieri out of the city. Constable Blackmore and four other officers gave evidence for the Association with respect to the driving home of civilians by the Barrie Police Service. Constable Blackmore testified that he had taken people home before without permission, albeit not as

far as Angus - to Midhurst, approximately five minutes away from Barrie, and Stroud, approximately seven minutes away. Constable Mark Hyatt testified that he had worked the 3:00 p.m. to 3:00 a.m. shift on March 31/April 1, 1990, and was patrolling as "RoamerH - that is, an extra car, not assigned to one particular patrol zone. Constable Hyatt testified that he gave two women a ride home that same night. They had been drinking (although they were not intoxicated) and were looking for a ride to their homes in the east end of Barrie at the time the bars were getting out. He did this without getting permission first. He also testified that, from time to time, he had driven people to destinations outside the City of Barrie, sometimes without permission - although he usually (but apparently not always) advised his supervisor afterwards. Sometimes he had asked permission beforehand, and had never been turned down. Constable T.M. Conroy testified for the Association that he, too, had driven individuals to destinations outside the City of Barrie. On one occasion, he had taken a vagrant, at his own request, to a farmer's field outside the City and, in another instance, had driven victims of a car fire to their home. He testified that he had also driven members of the Force home, sometimes outside the city. In the latter instance, however, this would be at the direction of his supervising NCO. Constable Randy Carson testified that, in his sixteen-year service with the Barrie Police, he had driven perhaps a dozen people home, outside the city limits, without permission and without the knowledge of the Force. Typically, such people would be intoxicated pedestrians, impaired drivers, victims of motor vehicle accidents, and so on. He had also driven people home after notifying the police dispatcher, and permission had never been withheld. Finally, Constable Tom Sinclair testified that, over his nine-year service with the Barrie Police Service, he had driven a number of people home, even if it meant leaving his zone and the city boundary: Such individuals would typically be intoxicated persons, -vagrants with no money and no way of getting home, victims of accidents or sexual-assault;.etc. Constable Sinclair testified that such actions, with or without the permission and/or knowledge of the supervising NCO, were a common practice. A typical trip would be five to ten minutes from Barrie.

Section 2.10 of the Barrie Police Service regulations, submitted in evidence as part of the parties' agreed statement of fact, states the following with respect to the duties of a Barrie police officer:

2.10 A CONSTABLE shall:

(a) carry out duties as may lawfully be assigned to him by a Sergeant, Staff Sergeant or a Senior officer; (b) be accountable to his Sergeant for his activities; (c) remain within the boundaries of his patrol area unless permitted to leave by the exigencies of the duties, his supervisor or the Communication Clerk on duty; (dl in the case of a Constable assigned to Criminal Investigations, be responsible for the thorough investigation of matters of a criminal nature, under the direct supervision of the Sergeant or Staff Sergeant.

Aside from the agreed statement of facts, no testimony or evidence was offered by the Board.

Arsuments Mr. Roland, for the Association, argued that the criminal charges in this case arose out of Constable Blackmore performing his duty, because his duty, in the largest sense, was to assist citizens. Ms Gualtieri was a citizen in danger and in some distress; she was intoxicated, upset, without money, and some distance from home. Further, the evidence made clear that taking people home, even out of one's patrol zone or out of the city entirely, and with or without notification and/or permission, was not an uncommon practice for officers of the Barrie Police Service. While Angus was somewhat further than other officers had taken people, it was not very much further, and could still be considered to be in the same set of destinations in terms of time and distance. Thus, according to the Association, while he breached in a technical sense the Force regulation not to leave his zone, he did so for a larger good. Indeed, even the Force treated the breach as relatively trivial, as reflected in the disciplinary penalty of just eight hours of overtime. Counsel for the Association submitted three legal indemnification cases for my consideration: Re Corporation of the

Town of Wiarton and the Wiarton Police ~ssociation (Dempster), 1986, Re Hamilton-Wentworth Police Association and Hamilton- Wentworth Regional Board of Commissioners of Police (Langille), 1988, and Re Haldimand-Norfolk Police Services Board and the Haldimand-Norfolk Police Association (Jackson), 1994. Also submitted was Professor Swan's 1982 interest award of a legal- indemnification provision for the Metropolitan Toronto Police collective agreement. Mr. Winter, for the Police Services Board, argued that it is logically impossible for me to conclude that Constable Blackmore's legal costs arose out of his performing his duties. Constable Blackmore's duties are defined by Regulation 2:10 and, particularly in this case, Regulation 2:10(c). Since he was disciplined for breaching 2:10(c), and since he did not grieve the discipline, one must conclude that he did not dispute that he had violated 2:10(c). More specifically, one must conclude that his action of driving Ms Gualtieri home was not an exigency of his duties, to use the terminology of 2:10 (c), which would allow him to leave his patrol zone. One must therefore conclude that he could not have been performing his duties and, accordingly, I must therefore find for the Board.

Award In a broad sense, the central issue of this case is whether or not these charges arose out of Constable Blackmore performing his duties. In a narrower sense, however, given the way the parties have defined it for me, the issue is really this: Can it be said that Constable Blackmore was performing his duty in driving Ms Gualtieri home, when both parties acknowledge, and he conceded, that in doing so, he violated a regulation of the Barrie Police Service? Again, there can be no issue of sexual assault since the only evidence that was placed before me in that regard was the trial judgment acquitting him, albeit in an ambivalent manner, of that charge. Mr. Roland argues that Constable Blackmore was, indeed, doing his duty in the largest sense - protecting the public. Mr. Winter argues that, logically, since Constable Blackmore, in effect, pleaded guilty in an informal disciplinary proceeding to violating the regulation (2:lO) which partially stipulates the duty of a Barrie police officer, it cannot now be said that he was doing his duty in driving Ms Gualtieri home.

This case really turns on the meaning of the phrase, "arising out of the performance of his duties" and what the parties intended by it when they wrote it into their collective agreement. The problem in this instance, of course, is that the parties are disagreed as to what it means. In order to properly understand it, therefore, it must be viewed in its larger context

- namely, the arbitral jurisprudence dealing with legal- indemnification clauses in police collective agreements. The most thorough canvassing of legal-indemnification cases was conducted by Arbitrator Michel Picher in his 1990 Thunder Bay award. In that award, Mr. Picher identified several themes running through police legal-indemnification awards.

. . .the awards disclose some acceptance on the part of labour arbitrators that the rights of police officers as employees often involve special considerations which might not obtain in another workplace. . .In the exercise of their functions police officers share a certain solitude, as well as other sources of stress that reflect a realm of experience that may not be readily understood by all civilians. and A further theme reflected in the jurisprudence is an understanding that police officers frequently function in relatively undefined, gray areas where the limits of lawful conduct may not be readily discernible or easily measured. and, finally,

Additionally, since they are necessarily in contact with crime, they are exposed to the stress of dealing with some of the most unsavoury of society's characters, as well as some of life's most unfortunate victims.

Mr. Picher drew these themes together and concluded,

An appreciation of these various factors has caused boards of arbitration to apply both caution and compassion in the assessment of the Conduct of police officers, particularly in relation to defining in a fair and realistic way the ambit of the exercise of an officer' s duty. In other words, arbitrators are mindful of and sensitive to the unique working environment of the police officer and try very hard to be fair and realistic in defining the word "duty" for purposes of legal-indemnification provisions. While the wording of the legal-indemnification clauses featured in the various cases on record varies somewhat - for example, "flowing from his police duties" [Durham], "during the legal execution of his duty" [Waterloo Region], "while in the lawful execution of his duties as a police officer" [Brantfordl, "because of actions done in the attempted performance in good faith of his duties as a police officer" [Metro Toronto and Hamilton-Wentworth], Ifwhile engaged in the legal execution of his duties as a police officer" [Haldimand-Norfolk], and (now)

"arising out of the performance of his duties" [Barriel - they all mean, essentially, the same thing. Mr. Picher put it this way :

The common thread. . .which appears to run through successful claims is that in virtually all instances the officer has erred in the means applied to achieve the end of his or her professional duty. . . .

At the heart of the matter lies this question:

. . .was the officer's action - overzealous, mistaken or misjudged as it might have been - truly "directed towards the ends of law enforcementff?

If it can be said that it was so directed, that the officer was acting - or even thought he or she was acting - to further the ends of law enforcement, then the claim for indemnification should succeed. This jurisprudence makes clear, then, that the term "duty" is used, not in a narrow, detailed and technical way, but in a higher-level and larger sense.

Professor Swan discussed this notion in his 1982 Metropolitan Toronto interest arbitration award. The Board of Commissioners of Police had proposed three conditions which would disentitle an officer to indemnification, even if he or she had been acquitted: gross dereliction of duty, deliberate abuse of power, and failure.to comply in any material way with established police procedures and regulations. While agreeing with the first two conditions, Swan said this about the third:

A failure to comply in any material way with established police procedures and regulations simply does not fit into the same category as gross dereliction of duty or a deliberate abuse of powers. Indeed, given the wide range of police procedures and regulations available for the guidance of members of the force, the third provision constitutes a dramatic derogation from the right of a police officer acquitted of a crime to legal indemnification. Moreover, the criterion could cover a broad range of departures from normal practice, from the very trivial to the extremely serious.

He awarded the first two conditions, but not the third. Professor Swan's view of the matter is consistent with all of the other legal-indemnification awards which followed, including three by this arbitrator. The key element of this jurisprudence as it pertains to this case is simply this: specific procedures and regulations do not exist at the same level as a police officer's "dutyf1in the sense in which it is used in legal-indemnification provisions. Thus, an officer can make a mistake; he or she can be guilty of bad judgment; he or she can even fail to adhere to a regulation, but nevertheless still be found to have been performing his or her duty in the sense in which it is used in these clauses. The heart of the issue, always, is whether or not the officer was attempting in good faith to carry out the most fundamental duty of a police officer . In this context, and given the circumstances on the night of March 31, 1990, just what was Constable Blackmore's duty? Was it his duty to take Ms Gualtieri home that night? No, clearly not. On the other hand, it was Constable Blackmore's duty to do something; she was a member of the public, a woman, in distress and in some jeopardy by virtue of her condition and location. Indisputably, Constable Blackmore could not simply have left her in that location, situation, and condition and done nothing. This conclusion accords, not only with his uncontradicted testimony, but with common sense. If an ordinary civilian were asked for a ride by a woman in that condition, at that time, and in those circumstances, he or she would in all likelihood feel some obligation to try to help out. In short, Constable Blackmore had to do something. The problem, of course, is that he did the wrong thing; he drove her home and out of the city without advising the dispatcher and without getting permission. He should have done something else. He could have driven her to the police station and let it get sorted out there, but he testified that this would not have been welcomed at the station. He might have given her cab fare, but he testified he did not have enough money. He might have driven her home, having first informed the dispatcher and, perhaps, obtained permission from the Duty Sergeant. Instead, he just drove her home, without advising the dispatcher or obtaining permission. He characterized this as a mistake in judgment, citing as the reason in evidence that he thought he could get her home and get back without difficulty. Again, all of his evidence was uncontradicted. As well, the uncontradicted evidence of four Barrie police officers supports the conclusion that driving members of the public home, in certain circumstances, even when home was outside their ordinary patrol zone or the city limits, was considered a proper and legitimate element of police service. In effect, it was a practice of the Force. In some sense, then, the seriousness of Constable Blackmore's mistake or misjudgment is mitigated. I might note, too, that it would not appear that the Barrie Police Service itself deemed it to have been terribly serious. After all, the disciplinary penalty - just eight hours of overtime - was informal, agreed-upon discipline that was not imposed until after the trial judgment, two and a half years after the incident. Looked at in this way, then, there can be no doubt that Constable Blackmore was carrying out his duty as a police officer which was, in the largest sense, to take some action to help Ms Gualtieri, who was clearly in a situation where she needed some help. There is equally no doubt that the action he took was misjudged and inappropriate. However, as the arbitral jurisprudence on police legal indemnification makes clear, mistakes and misjudgments do not disentitle an officer to indemnification so long as it is concluded that the mistake or misjudgment was made in an effort to carry out his or her fundamental duty as a police officer. Since there is no evidence before me to the contrary, it is not possible to conclude otherwise. For all of these reasons, then, the grievance must succeed. Constable Blackmore is entitled to indemnification for the legal costs associated with defending him against the criminal charge.

As the parties requested,-Iremain seised in the event that they are unable to agree on the actual amount which appropriately falls within this award.

Dated at Kingston, this 26th day of July, 1994.

P. Jackson