They Fire Whistleblowers, Don’t They? (Part II)

Note: This is the second of two articles on the recent firing of three Cape Breton Regional Police Service officers. You can read Part I here — and you probably should because we’re just going to dive right in where we left off.

 

Were the cops involved the staffkenney affair whistleblowers?

Somebody at the Chronicle Herald thought former Constable Wade Lavin was. Here’s the headline of a (no longer accessible story) about his trial verdict:

CBRP whistleblowing cop found guilty

Frank magazine apparently did, running a 25 January 2016 story under the headline:

Is CBRP whistleblower Wade Lavin getting railroaded?

Lavin’s lawyer David Bright did, telling the court in his final summation:

This is strictly a whistleblowing case.

So let’s, for a moment, entertain the possibility that this was a whistleblowing case; that there were problems with CBRPS managers’ use of police vehicles and credit cards that Lavin, acting at the behest of the union executive, was trying, however hamfistedly, to bring to the public’s attention.

 

Cars & Cards

In the case of the police vehicles, we know the union was right. In fact, the union’s position was confirmed by no less a personage than the real Staff Sgt Ken O’Neill when he took the stand during Lavin’s trial:

O’Neill testified that he had used his police vehicle for personal use prior to these incidents and that his golf clubs were once stolen from the car and later recovered.

According to this report in the Cape Breton Post, an unnamed CBRPS police officer (surely O’Neill) had his golf clubs stolen from the trunk of his police-issued vehicle on 3 September 2015 — after Lavin sent his email alleging managers were using their police vehicles for personal use.

And O’Neill’s testimony was corroborated by that of Supt. Walter Rutherford, who:

…acknowledged that in his RCMP interview he said he did sometimes use his police-issued vehicle for personal use, which included trips to the golf course on his way home from work and occasionally for errands that he ran from home.

And by Chief Peter McIsaac:

McIsaac said the managers were told that police vehicles are not to be used for personal use and in one case he issued a verbal reprimand.

So it was happening.

As to why the union might be concerned about 13 vehicles being assigned to managers, a passing glance at the CBRPS budget would suggest they don’t have vehicles and equipment to spare. This is from 2014-2015, but it gives you a sense of how the force spends its money:

Source: CBPRS Report to the Community https://www.cbrps.ca/13-cbrps-report-to-the-community-final-nobleed/file.html

Source: CBPRS Report to the Community 

As for the credit cards, the union claimed managers were using each other’s cards to hide expenses:

Chief Peter McIsaac testified there may have been instances when individuals may have surpassed the limits on their cards, for example if attempting to book airfare for travel on police business, and may have had to use another card, but the charges had to be accounted for with receipts in order to verify them. Each year, people are chosen at random to have their expenses audited, he added.

I may be a little slow on the uptake, but I don’t think anything in that statement is inconsistent with “hiding expenses.” If I blow my budget and then buy something on a colleague’s credit card, there’s going to be receipt. That’s kind of how “hiding expenses” works.

But let me be clear: I’m not saying there was anything untoward happening with the credit cards, I’m just saying the court case didn’t prove there wasn’t anything untoward happening with the credit cards. And that’s worth noting, because if McIsaac were really interested in defending the honor and integrity of the police force, he probably should have focused on proving the union’s allegations were baseless.

Instead, he opted to come down like a ton of bricks on the whistleblowers.

And to fire the president and vice president of the union, towards whom he bears a degree of animosity he has not been at pains to hide. In his year-end interview with the CBC’s Steve Sutherland in January 2017, McIsaac said:

I’ll be honest with you Steve, we have a wonderful union that we get along great with, there’s certain individuals sometimes take positions within those union ranks that necessarily don’t have the best interests of the police service at heart…

 

Nothing personal?

And while he claimed he was defending the honor and integrity of the police force, it sometimes seemed like McIsaac saw the whole incident as a personal attack.

That’s probably because he told the Post in July 2015:

This is a personal attack.

And knowing that he took it personally makes you wonder about the way he responded to it. Makes you wonder about the steps he took that he was under no legal obligation to take.

For example, he didn’t have to press criminal charges against Lavin. In that year-end interview with McIsaac in January 2017, Sutherland asked the chief why, given that Lavin had admitted to sending the emails, the force chose to pursue criminal charges rather than in-house disciplinary action. McIsaac answered:

Well, as a police officer, you certainly should know the law in relation to stepping outside of it. When an individual impersonates another person, particularly another police officer, and relays false messages to the public and the media…

[At this point, Sutherland interjected to remind the chief that the falsity of the information Lavin shared has yet to be proven in court.]

Well, yeah, that’s right but certainly the evidence was there to proceed with an investigation, right? And that’s exactly what we did there. And I can tell you some of the stuff in the email was related to myself personally, and I was disgusted with it, I found it defamatory and slanderous and I’m gonna tell ya, I’m just not gonna stand for it. And that’s why I asked for an investigation.

Sutherland asked why, if he felt he’d been defamed, McIsaac wasn’t pressing defamation charges, to which our chief gave the following, measured reply:

  Who says we’re not?

For the record, McIsaac never did press defamation charges against Lavin, which presumably means the RCMP investigation found no evidence of defamation.

And despite the ostensible severity of his crimes, Lavin was given nothing like the maximum sentence for any of them. Forgery alone carries a maximum sentence of 10 years. Identify fraud alone carries a maximum sentence of 10 years. Lavin was given a year’s probation.

And can we say a word about the identity fraud here? Lavin was found guilty of posing as Staff Sgt Ken O’Neill, but no one actually believed the emails were from O’Neill because they accused O’Neill, among others, of using his police-issued vehicle for personal purposes. While cross-examining O’Neill, Lavin’s lawyer, David Bright, noted that “it was unlikely anyone would believe that O’Neill would be blowing the whistle on himself by sending the email.”

And when Bright pressed Chronicle Herald reporter Andrew Rankin about the source of the email, their exchange went like this:

BRIGHT: It looks like Ken O’Neill, the originator…

RANKIN: Yes

BRIGHT:…is reporting on Staff [Sgt] Kenny O’Neill using a police car for a non-police purpose.

RANKIN: Yes

BRIGHT: Did that make any sense to you?

RANKIN: No

BRIGHT: I suggest sir, at no time did you ever think that Staff Sergeant Ken O’Neill had sent you this email

RANKIN: No, of course.

“No one believed the emails were from Ken O’Neill,” Bright said in his summation, noting that even Chief Peter McIsaac testified he didn’t believe O’Neill was involved.

 

Internal discipline

Furthermore, compare what happened to Lavin for sending those emails to what happened to him in 2006 and 2008, when he seems to have been spending his off-duty time drinking and getting into bar fights.

In 2006, while off duty, Lavin hit a man in a Sydney club and was “subsequently disciplined by the force because of his conduct in failing to heed bar staff instructions.”

And in 2008, he was the complainant in an assault case that centered around a drunken fight in the parking lot of another Sydney club. The jury found the accused, who had punched Lavin in the head, not guilty because most of the witnesses (including Lavin) were too drunk to be reliable and Lavin’s story was inconsistent and the accused claimed the cop had been the aggressor.

There’s no indication in the news stories that Lavin faced any internal discipline from the CBRPS for this second incident, but even if he did, it didn’t result in his dismissal.

Discussing Lavin’s decision to send the “staffkenney” email with the CBC’s Steve Sutherland in January 2017, McIsaac said:

I was embarrassed that one of our officers would even do that.

I would think having one of your officers participating in drunken bar brawls would also be embarrassing.

But the CBRPS (under then-Chief Myles Burke) chose to handle that incident in-house.

 

Discretion

And finally, look at the series of decisions McIsaac made in relation to Constable Greg Livingstone, Sgt. Jerome Kelly and his wife Constable Roberta Kelly, culminating in their termination last week.

I presume (although I stand to be corrected) that it was McIsaac or the CBRPS who lodged the complaint that triggered the internal Police Act investigation into the three (for reasons that have never been disclosed). That investigation began in July 2016, and McIsaac immediately suspended the officers, although Jason MacLean, the president of Nova Scotia Government Employees Union (NSGEU) to which the officers belong, told the Post that didn’t have to be the case:

MacLean said in situations where there is an internal manner in a police force, the members involved are regularly put on administrative duty, doing work that can be done in the police station, such as taking statements or dealing with motor vehicle matters.

“He (the chief), didn’t need to suspend them, there were no criminal charges.”

We also know, from media reports, that McIsaac “requested” the RCMP look into the case, which suggests he also had the option of “not requesting” the RCMP look into the case. And since the 15-month RCMP investigation ended without criminal charges, it seems there was no real need to request it.

When the RCMP probe ended, MacLean told the Post that Livingstone, and the Kellys werecleared to return to work” and were “no longer suspended.”  Although they would not be returning to work, because all had been battling “serious illnesses” and were on sick leave. Moreover:

According to MacLean, the suspended officers were notified about being cleared in the RCMP investigation by a senior member of the CBRPS, but when they asked about the status of the internal investigation under the Nova Scotia Police Act they were informed that CBRPS Chief Peter McIsaac hasn’t made up his mind about that yet.

“(This senior member of the CBRPS) said the chief is still thinking about pursuing the investigation under the Police Act,” MacLean said.

McIsaac decided to pursue the Police Act investigation anyway and left the officers on suspension (although, as MacLean had stated, there was no need for this given there were no criminal charges involved). That investigation concluded this month and resulted in the termination of Livingstone and Jerome and Roberta Kelly — again, McIsaac’s decision.

The CBRPS gave no reason given for the terminations, other than spokesperson Desiree Vassallo’s statement that an internal investigation under the Police Act:

“…which included new evidence not previously uncovered during the criminal investigation, has resulted in the disciplinary action to terminate these employees for discreditable conduct under the Police Act,” said Vassallo.

But remember, these three officers were cleared of any criminal wrongdoing by a 15-month RCMP investigation. So we know they committed no crimes.

Moreover, if the “discreditable conduct” under the Police Act was discreditable enough to justify termination — the highest degree of internal discipline possible — then perhaps it was serious enough that it should be made public.

And in fact, it might be made public, as MacLean told the Post the matter was being appealed to the Police Review Board and review board decisions are made public. So we may eventually learn more about the charges against the officers.

But what we may never know is why, exactly, Chief McIsaac pushed this rather ludicrous (to the civilian observer) case as far as he did. Because if all of these suspensions and investigations and charges and sentences were intended to protect the reputation of the CBRPS,  I would argue they’ve had precisely the opposite effect.

On the other hand, if they were intended to scare the bejesus out of any other potential whistleblower in the CBRPS ranks, they may well have worked.

 

 

 

 

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