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HomeMy WebLinkAbout1990-1392.Giberson et al.94-12-01DES GRIEFS BEFORE: Ii TEE NATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD OPSEU (Giberson,et al) - and - The Crown in Right of Ontario (Ministry of the Attorney.General) J. Samuels vice-Chairperson M. Lyons Member F. Collict Member FOR THE UNION J. Andrew ~Counsel Cavalluzzo, Hayes & Shilton Barristers & Solikitors ' FOR THE EMPLOYER S. Patterson Counsel Management Board Secretariat HEARING October 3, 1994 Grievor Employer Ij ~.. , ,,. _..; .:’ .._- 1 - - _!~.. /. /. 2 I The grievors are Sheriffs Officers in the Toronto Region.~ They were’dassified as Sheriffs Officer 2 and they claimed that they were improperly classified. Our first hearings took place in 1.991 and 1992, and ! in our award dated May 25, 1992, we.concluded that the grievors were not properly classified. At page 6 of that award, we said: We order that the Ministry prepare a class standard appropriate for the grievors, and that this be done within a reasonable time. After the new standard is written, the parties will negotiate suitable salaries, and we order that the grievors receive compensation so that they will have been paid according to the new salary levels from twenty days before their grievances were filed on June 27, 1990.. They should also receive interest on any sum which ought to have been paid at a rate of 8% compounded annually from the date on which the sum ought to have been paid to the date on which it is paid. While we leave the writing of the new ‘standard to ~the Employer, we have a brief comment to make concerning this. Though we heard no evidence concerning the work of Sheriffs Officers elsewhere than Toronto, it may be the case that, in Toronto, these officers face situations which are quite different from elsewhere. In particular, we have the feeling that in smaller centres there is much’less of the type of “peace officer” work which is so significant in Toronto-the under-cover investigation involved with “John and Jane Doe Orders” and the peace- .keeping at the Morgenthaler Clinic and~the Sikh temple. If our feeling is correct, then it may be useful to write the new standard so that it applies only to Sherrffs Officers in Toronto, or in large centres with similar problems. c: _ ,r; I;.. 3 Pursuant to our order, the Employer prepared a draft standard which is appended to this supplementary award.- And there arose several issues;elated to this draft standard. Firstly, the Union took exception to the title “Sheriffs Officer 2A”, preferring ‘Sheriffs Officer 3” or “Sheriffs Officer, Metro Toronto”. When we reconvened to hear and determine the new issues, we told the partiesthat this Board has no interest in the title of the new standard. The Employer can call the position anything it wishes. Our concern ,is the contents of the stat&d. Secondly, the parties had a difference of opinion concerning the reference to the power of arrest possessed by the grievors. What is the legal basis and legal extent of the power? To what extent is the power. exercised? What should the standard say about the power of arrest? In the Employer’s draft new standard, it is said that “As Peace Officers these employees have the power of arrest; however, they are not .required to exercise this power in the normal course of their duties.” The Union objects to the part of this sentence which appears after the semi-colon, and proposes that the sentence ought to end at the semi-colon. In the alternative, the Union suggests that the sentence could read “These employees keep the peace and have the power of arrest which is used as applicable during the course of their duties”. In its written submission, the Employer reversed course and suggested that the standard say nothing about the power of arrest. .It was suggested that it say instead “As peace officers the employees have the benefit of the protections of the Criminal Code”. The problem’with this suggestion his that it. appears to deny a finding ‘we made in our earlier award-we said that these Sheriffs Officers do have the power of arrest. The Union proposed to call evidence concerning the way in which the power of arrest is exercised in the field. We told.the parties that this .Board had already heard and determined any issue relating to what is 4 actually done on the street. That phase of our deliberation is finished. We, would not re-open that phase. ‘however, we agreed that we should say something about the source . and nature of the grievors’ power of arrest, so we would receive written- - --i- -- argument and issue a supplementary award concerning these matters. The critical point is that the focus of the work of these officers is the enforcement of various orders, awards, judgments, and other directions ” . which flow out of civil processes pursuant to various pieces of legislation. For example, if a court orders a party to pay a sum of money to another. and the debtor refuses to pay, the Sheriffs Officers may seize property ’ belonging to the debtor under a Write ,of Seizure and Sale in order to reahze monies to satisfy the judgment. Or, if a court orders that people cease picketing certain premises, the Sheriffs Officers may attend to ensure that the order is complied with. If it is necessary to arrest an individual during the course of accomplishing the enforcement, the officers have the authority to effect an arrest. The power of arrest itself is authorized and circumscribed in the Criminal Code. Section .2 defines “Peace Officer” to include “(a).....sheriffs officer..“, and section 495 sets out the circumstances in which a Peace Officer may arrest without warrant, and when a Peace Officer shall not arrest a person without warrant. In addition, section 494 sets out the circumstances under which any person may arrest without warrant (a “citizen’s arrest”). We were referred to several cases in which the Criminal Code power to arrest of a Peace Officer, such as a Sheriffs Officer, was considered. As counsel for the Union put it in his written submission, the full scope of this power to arrest is “unclear and fraught with Constitutional considerations”. The Employer relied heavily on Nolan v. The Qulen (1987), 34 , CCC (3d) 289 (SCC) in which the Supreme Court of Canada considered the r i 5 case of a man arrested by a military police officer for speeding on the grounds of a Canadian forces base. The officer had chased the man off the base ‘&to the public highway, stopped him, brought him back to the base, and there demanded a breathalyzer- sample. The military police officer,-- --- --- -- like our Sheriff’s Officer, is included as a “Peace Officer” in section 2 of the Criminal Code.. The Supreme, Court held that the military police officer had the authority to take the action he did, because the ojficer had ~authority to detect and arrest impaired drivers under the Queen’s Regulations and the Trespass Regulations. The power of arrest given in the Code does not confer any additional jurisdiction on a “Peace Officer”. The officer’s essential authority is to exercise the powers and duties given in the various enabling statutes, or in the common law. The power of arrest under the Code-is given to complement the ,exercise of authority vested in the officer,by other sources. As Chief Justice Dickson put it (at page 299 l/2): . . ..the definition of “peace officer” in s. 2 of the Criminal Code serves only to grant additional powers to enforce the criminal law to persons who must otherwise operate within the limits of their statutory or common law sources of authority. And (at page 298 213): . . . . the definition of “peace officer” in s. 2 of the Criminal Code is not designed to create a police force. It simply provides that certain persons who derive their authority from other sources will be treated as “peace officers” as well, enabling them to enforce the Criminal Code within the scope of their pre-existing authority, and to benefit from certain protections granted only to “peace officers”. The Court reasoned (at pages 301-303) that: l Section 22.01(2) of the Queen’s Regulations gave the military i police officer the power of a peace officer with respect to the detection and, arrest of inebriated drivers, if the officer was performing “Lawful duties” that are the “result of a specific order or established military custom or practice”. (page 302,1/4) l The military police officer had the authority of a “security guard” under the Trespass Regulations, and in the circumstances of the case,‘as a “security guard’, he had statutory authority to arrest the speeder without warrant to enforce the criminal law. (page 303 l/3) Furthermore, a military police officer who has clear statutory authority to enforce the law and who is sent out on a routine patrol on a base is abiding by established military practice in fulfilling his role by attempting to enforce the law. (page 303 l/3) ’ Thus, the officer met the conditions imposed by section 22.01(2) of the Queen’s Regulations. l Being a “peace officer”, the military police officer was entitled to invoke the statutory authorization of s. 235(l) of the Code and to issue a breatbalyzer demand. (page 303 3/4) l The officer. had the power to stop the vehicle and detain the driver off the base, given that Nolan was seen speeding on the base and it was necessary to follow him off the base in order to stop him, ,and the detention took place immediately outside the gates. There was a clear nexus between the offence committed on the base and the detention off the base. (page 304) We don’t ‘think it is necessary for us to explore ~the margins of the Sheriff Officer’s power to arrest in order to determine the content of the Class Standard describing their job. In our view, following the reasoning c 7 of the Supreme Court of Canada in the Nolan case, the most that needs to be said about the power of arrest vested in these officers is that it is incidezal to their enforcement work, and that it can be used as necessary during the course of their duties. It is not possible to say what will be the----- ~- frequency of the exercise of the power of arrest. This will depend on the nature and circumstances of the enforcement carried out by the. officers. Thus, the new Class Standard ought to say simply “As Peace Officers, these employees have the power of arrest, which is used as applicable during the course of their duties”. We continue to remain seized to deal with any matters arising out of our original orders and this supplementary award. Done at London, Ontario, this 1st day of December ) 1994. M. Lyons, Member F. Colhct, Member l,.: ADDENDUMS i Be: Giberson et al - G.S.B. #X392/90 Kotkowicz - G.S.B. #3000/91 This member is in agreement with the award in this case. The issue before the Board is the question as to how the authority of Sheriff’s’ Officers to effect an arrest shall be set out as a duty in the new class standard to be drafted by the Employer. / It would Seem to be common ground between the parties that the Sheriff’s Officers, (a) & have the power to arrest, (b) .in law, are “peace officers”, and, (c) in law, do not have the broad powers of criminal enforcement which apply to “police officers”. As stated at page 4 of the award, “The critical point is that the focus of the work of these officers is c the enforcement of various orders, awards, judgments, and other directions .which flow out of civil processes pursuant to various pieces of legislation. . . . . (but) . . . . If it is necessary to arrest an individual durina the course of accomplishinq the enforcement, the officers have the authority to effect an arrest. Accordingly, the language to be included in the class standard to describe this authority, as proposed by the Union, is not offensive to this Member. That is, “As Peace Officers, these employees have the power of arrest, which is used as applicable during the course of their duties.” -. . On the other hand, the Employer’s contention with reference to the nature of this “power of arrest” for Sheriff’s Officers probably is quite correct. That is, I- “.... they are not required to exercise this power in the normal course of,their duties.” (p. 3 of Award) or, as expressed at page 7 of the award, ,I . . . . the power of arrest vested in these officers is . . . . incidental to their enforcement work, and, . it can be used as necessary during the course of their duties. It is not possible to sav what will be the freauencv of the exercise of the Power of arrest...” (underscoring added) Clearly, the “power of arrest” is a compensable factor to be considered when determining the wage rate to be paid for the new class standard in this case. However, the’ compensable value to be ascribed to this power of arrest will be determined, (4 through negotiations between he parties; or, in the event of no agreement between them, (b) through the process of an interest arbitration as provided for in accordance with the provisions of Article 5.8 of the Collective Agreement. But establishment of the wage rate for the new class standard in this case is not the~role of this Board. It’s role is restricted to the description of job duties of the,Sheriff’s Officers in the new class standard: and, as stated at page 6 of the award, ” We don’t think’it is necessary for us to explore the margins of the Sheriff Officer’s power to arrest in order to determine. the content of the Class Standard describing their job.”