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Case prompts calls for oversight of CN police

|Written By Shannon Kari

The private police force employed by the Canadian National Railway Co. is facing allegations that some of its officers acted improperly or even illegally in laying charges against a former employee, yet it appears no agency is willing to investigate the claims.

The unusual circumstances that led to the creation of a police force without an independent oversight agency stems from historical powers granted by the federal government to CN and the Canadian Pacific Railway Co. to ensure the safety of the national railroads.

The nearly 200 officers employed by the two companies have powers equal to those of municipal police services as long as their investigations relate to its operations or property within 500 metres of a rail line.

The government never revoked the special powers even though both are now private companies. It is believed they’re the only companies in Canada with statutory authority to retain private police forces.

The claims of wrongdoing by CN officers relate to its criminal investigation of Scott Holmes. The former track supervisor was accused of approving construction and maintenance contracts in southwestern Ontario to companies he controlled.

CN charged Holmes criminally a year after it filed a civil suit against its former employee. The provincial Crown stayed all charges in November 2010 after the preliminary hearing.

The court heard CN officers testify that the dual criminal and civil proceedings initiated by the company were a “joint venture” between its police force and corporate head office. Other testimony revealed that the CN police investigation began at the direction of company executives.

Holmes launched a countersuit against CN earlier this year in the Ontario Superior Court claiming the company had engaged in an abuse of process. The civil proceeding is ongoing, and none of the allegations have been proven in court.

Separate from the civil proceeding, the lawyer who represented Holmes in the criminal case has asked for an independent review of the actions of CN police.

CN officers were in a conflict of interest, allegedly misled justices of the peace to obtain search warrants and production orders, and used criminal law powers as leverage against Holmes, stated Michael Lacy in a letter to the chief of the CN police earlier this summer.

Stephen Covey, chief of CN police, replied that there would be no investigation until the civil proceedings are over.

The federal Railway Safety Act states that it’s up to the CN chief of police to determine whether to investigate a complaint. If the complainant isn’t satisfied with the decision, the only right of appeal is to the chief executive officer of CN.

“There is a complete lack of accountability for the actions of CN police officers,” says Lacy, a lawyer at Lacy Wilkinson LLP in Toronto.

The unwillingness to ask an outside police service to investigate the complaint suggests that “CN police have a real difficulty in recognizing a conflict of interest,” Lacy says.

Law Times attempted to obtain a response from CN police. A spokesperson for the company indicated that CN police aren’t permitted to speak independently to the media. CN declined to comment about the decision not to investigate the complaint or refer it to an outside police service.

Lacy asked the London Police Service, which was the nearest local police service, to launch a criminal investigation into allegations that CN police misled the courts in the Holmes case.

The deputy chief of the London Police Service, referring to the ongoing civil litigation as well as the powers of the CN police chief under the Railway Safety Act, declined to do so, says Lacy.

A spokesman for the London police tells Law Times “a response was provided to Mr. Lacy” after reviewing the documents he provided.

The provincial agencies that investigate civilian complaints about police conduct in Ontario don’t have jurisdiction over the CN authorities, so Lacy asked federal Public Safety Minister Vic Toews to consider an independent review of the matter.

“The minister is currently examining documents that have been forwarded to him,” says Jessica McDonald, a spokeswoman for Public Safety Canada.

The CN charges laid against Holmes aren’t the only recent example where the actions of its police force have come under scrutiny.

For instance, CN police criminally charged an employee involved in a physical altercation last year with a colleague. The Crown withdrew the criminal charges in that case for lack of evidence.

  • Ernest J. Guise
    This sounds all too familiar to me. I acted for an employee who was charged with fraud by this police service even thought the issue of his entitlement for the benefits which were the subject of the fraud were subject to a grievance arbitration hearing. CN Police somehow had the Crown call evidence in a criminal case to suggest that the client was not entitled to the benefits unde the collective agreement. I sought leave from the Supreme Court of Canada without success.

    Ernest J. Guiste
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