IN THE MATTER OF A PROCEEDING UNDER THE POLICE ACT, S.N.B. 1977, c. P9.2.
BETWEEN:

THE CHIEF OF POLICE, BATHURST POLICE FORCE
Complainant,
- and CONSTABLE MATHIEU BOUDREAU
Respondent.

IN THE MATTER OF A PROCEEDING UNDER THE POLICE ACT, S.N.B. 1977, c. P9.2.
BETWEEN:

THE CHIEF OF POLICE, BATHURST POLICE FORCE
Complainant,
- and CONSTABLE PATRICK BULGER
Respondent.
DECISION
Merits

Appearances:

Basile Chiasson, Q.C., for the Complainant in both matters
Thomas J. Burke, Q.C., for the Respondent Boudreau
Brian D. Munro, for the Respondent Bulger

Hearing (on merits): October 16, 17, 18, 21, 22, 23, 24, November 4, 22, and December
9, 2019.
Decision:

December 24, 2019.

 Table of contents

Page
I.

INTRODUCTION

1

II.

BACKGROUND

4

Introduction

4

NEIIU – the Unit

4

Cst. Bulger and Cst. Boudreau

6

January 12, 2015

8

Project Harmon and the Aftermath

12

III.

ISSUES

13

IV.

ARGUMENT OF THE PARTIES

13

V.

Argument on behalf of the Complainant

13

Argument on behalf of the Respondents

17

ANALYSIS

19

Introduction – Reliability and Credibility

19

Standard of Proof

24

Analysis

24

The planning – police station (until arrival at the train station)

25

The planning – train station (decision to arrest)

27

The shooting

34

VI.

FINDINGS RESPECTING EACH COUNT

53

VII.

DECISION

55

Appendix A – List of Exhibits

56

 Page 1 of 56

I.
1.

INTRODUCTION
I was appointed on June 26, 2018 to arbitrate the Complaints of Chief Ernie
Boudreau (Chief Boudreau) of the Bathurst Police Force against Constables
Patrick Bulger (Bulger) and Mathieu Boudreau (Boudreau). Chief Boudreau’s
Complaints date back to December 3, 3015. The parties requested that I hear both
matters at the same time, as permitted by section 15 of the Regulation 2007-81,
under the Police Act, S.N.B. 1977, c. P-2 (the Act). I agreed. This Regulation is
known as the Code of Professional Conduct Regulations – Police Act, and I will
refer to it later in these reasons as “the Code”. The parties raised a number of
preliminary issues including four requiring that I provide written rulings1. This
explains the delay between my appointment and the hearing of evidence which
only began in October 2019. I also issued a 14-page decision on October 28, 2019
finding that a prima facie case had been made out by the Complainant for purposes
of sections 29 and 30 of the Code.

2.

The charges levied against both officers are the same:
Count 1
It is alleged that you, [both constables], On or about January 12,
2015, did improperly use and carry a firearm, as per subsection
35(g), of the N.B. Police Act (sic) and as described in s. 422
42
A member of a police force improperly uses and cares for
firearms if the member
(c) fails to exercise sound judgment and restraint in respect of
the use and care of a firearm.

1

Exhibit 3, tabs 9 to 12.
All of the references to the Police Act in the various counts should be to the Code instead. The Notices of
Arbitration Hearing – found at tabs 3 and 4 of Exhibit 3 – clearly and appropriately state that the allegations
are of breaches of the Code.
2

 Page 2 of 56

Count 2
It is alleged that you, [both constables], On or about January 12,
2015, did abuse his authority, as per subsection 35(f), of the New
Brunswick Police Act and as described in s. 41
41
A member of a police force abuses his or her authority if the
member
(b) uses unnecessary force on a person.
Count 3
It is alleged that you, [both constables], On or about January 12,
2015, did neglect your duty as per subsection 35(b), of the New
Brunswick Police Act and as described in s. 37
37
A member of a police force neglects his or her duties if the
member
(b) fails to work in accordance with official police force policies
and procedures.
Count 4
It is alleged that you, [both constables], On or about January 12,
2015, acted in a discreditable manner as per subsection 35(a), of the
New Brunswick Police Act and as described in section 36,
36(1) A member of a police force engages in discreditable conduct
if the member
(a)
while on duty, acts in a manner that is
(ii) likely to bring the reputation of the police force with which
he or she is employed into disrepute.
Count 5
It is alleged that you, [both constables], On or about January 12,
2015, acted in a discreditable manner as per subsection 35(a), of the
New Brunswick Police Act and as described in section 36,

 Page 3 of 56

36(1) A member of a police force engages in discreditable conduct
if the member
(b) while on duty, is oppressive or abusive to any person
3.

These charges relate to a tragic incident which took place in the morning of
January 12, 2015 at the Bathurst train station and which resulted in the death of
Michel Vienneau. It is undisputed that Boudreau shot and killed Vienneau. I must
decide if Boudreau and Bulger breached the Code on that day, and if they did, I
must determine what sanction is appropriate in the circumstances3.

4.

I will not to rule on the conduct of anyone other than that of Bulger and Boudreau.
I state this obviosity for two reasons: First, I have to make findings on the reliability
of the evidence proffered by a number of witnesses – which will entail rejecting
some testimonial evidence. I also have to make findings of fact which may paint
certain witnesses in a bad light. These findings are not intended to cast aspersions
on the character of anyone and ought not to be interpreted as such. Second, it is
not my role to make an exhaustive analysis of the factors that lead to Michel
Vienneau’s untimely demise. I may consider some of these intervening factors but
my goal is not to provide definite answers on anything other than the conduct of
the Respondents and whether this conduct violates their obligations. In other
words, this decision will not provide answers to all unanswered questions
surrounding the death of Mr. Vienneau.

5.

In the course of this part of the hearings, I heard evidence from 13 witnesses and
received 16 exhibits4 comprised of hundreds of pages. I also took copious notes.
Counsel also submitted Briefs on Law and copies of authorities, and I was provided
with recordings of parts of the proceedings.

3
4

Section 32.6 of the Act, and section 6 of the Code.
Listed at the end of this Decision.

 Page 4 of 56
II.

BACKGROUND
Introduction

6.

Michel Vienneau died on January 12, 2015 as a result of being shot by Cst.
Mathieu Boudreau at the Bathurst train station. Vienneau was coming back from
Montreal on the train. He was accompanied by his spouse, Annick Basque.
Boudreau fired his weapon four times and hit Vienneau twice. According to
Boudreau, he had no choice. If he didn’t stop Vienneau, Bulger would be hurt or
killed. Bulger was in the area of the front of Vienneau’s vehicle with his back to a
snowbank when Boudreau shot Vienneau. Bulger shot at the back tire of
Vienneau’s vehicle, but missed.

7.

Aside from Boudreau and Bulger, four other police officers were at the Bathurst
train station when the shooting took place: RCMP Cst. Denis Lajoie5, BNPP6 Sgt.
George Richard, Miramichi Police Force Cst. Larry Matchett, and Bathurst PF Cst.
Julie Daigle. Other than Daigle, the other officers were members of the Northeast
Integrated Intelligence Unit (NEIIU, the Unit).
NEIIU - the Unit

8.

The Unit operated out of the Bathurst Police headquarters and was managed by
Sgt. Ron DeSilva7 who was seconded to the Unit from his position in CIS (the
Criminal Intelligence Section of the RCMP). Formed a few years before, the Unit’s
mandate was to gather intelligence, collect information, evaluate it, and hand it out
to other police forces in the area. Its purposes included facilitating information
sharing between the police forces with jurisdiction in the area: RCMP, BNPP,
Bathurst PF, and Miramichi PF. The Unit’s focus was drugs and organized crime.

5

Since then promoted to the rank of Sgt.
Beresford, Nigadoo, Petit-Rocher, Pointe-Verte police force.
7
Since then promoted to the rank of Inspector in the RCMP.
6

 Page 5 of 56

9.

DeSilva was the NCO i/c8 of the Unit and supervised its operations. In his absence,
another member of the Unit would assume these responsibilities. While working in
the Unit, its members would report to DeSilva but also retained their status in their
respective home force and reported to their own unit on employment-related
issues. Bulger and Boudreau both came from the Drug Section in the Bathurst PF9
and they continued doing their “drugs work” with the Bathurst PF while assigned
to the Unit, including tactical work related to warrants and acting on information on
drugs.

10.

Bulger was assigned to the Unit in 2013 and Boudreau in July of 201410. According
to the Project Harman Report, they “added an operational component to what had
been primarily an intelligence gathering Unit”11. In order to have status as a peace
officer throughout Canada, which would be necessary if their work in the Unit
required them to work outside of the province, they had been appointed
Supernumerary Special Constables12.

11.

All members of the Unit normally reported for work at the Bathurst PF
Headquarters. Their space was next to the Bathurst PF Chief’s office. They were
not expected to wear a police uniform. They wore civilian clothing which enabled
them to conduct surveillance covertly. The Bathurst PF members of the Unit got a

8

Non-commissioned officer in charge of.
Part of the GIS or General Investigation Section, now called CID or Criminal Investigation Division.
10
Bulger’s and Boudreau’s status as members of the Unit is not straightforward: Cst. Matchett stated that
they weren’t part of the Unit “but they worked out of our office”. Sgt. George Richard said that Bulger and
Boudreau were members of the Bathurst PF’s drug unit “on loan… they moved into our offices and were
assisting us in investigations”. DeSilva testified that they were “part of the Bathurst Unit”. He added, on
cross-examination by Mr. Burke that he thought they were part of the Bathurst PF Drug Unit. In redirect, he
stated that Bulger and Boudreau were used as a tactical unit as needed. Finally, in his Performance &
Development Evaluation of Boudreau covering the period of September 2014 to February 2015, DeSilva
wrote that Boudreau had been “transferred under my supervision in September 2014 following a decision
by the Bathurst Police department to re-organize the reporting structure of the two Bathurst Police
department drug members. As of July 2014, both Bathurst Drug members report to the NCO i/c of NEIIU”.
(Exhibit 5, tab 28, at page 83). Bulger’s and Boudreau’s relationship with the Unit is similarly described at
pages 5 and 30 of the “Project Harman” Report, found at tab 42 of Exhibit 5.
11
Exhibit 5, tab 42, page 5.
12
Exhibit 5, tabs 24 and 25.
9

 Page 6 of 56
yearly stipend for clothing. The Force provided them with a firearm, handcuffs, a
badge, soft body armour, pepper spray, notepads etc. The Unit also had access
to binoculars and cameras. Its members communicated with each other using a
digitally encrypted system (DES) radio so that their communications would not be
intercepted with scanners.
12.

As members of the Drug Unit, Boudreau and Bulger were assigned a 2009 Pontiac
G6 by the Bathurst PF. Boudreau drove it home at night. The vehicle was outfitted
with the following emergency equipment:
-

Police Radio (Bathurst PF);

-

Police Light Bar;

-

Blue light in passenger headlight assembly (not operational)13;

-

“Wig wags” (alternating flashing lights) in high beams;

-

Red light in the driver headlight assembly (not operational)14;

-

Siren (not operational)15; and,

-

P.A. system (not operational).

Cst. Bulger and Cst. Boudreau
13.

Bulger joined the Bathurst PF as a casual officer in January 2006. He was
appointed to a regular position in the late summer 2008. He initially worked in
“general duty” – patrolling and responding to 911 calls – until 2013, when he was
assigned to the Drugs section. This is also the year he was assigned to the Unit.
Prior to joining the Bathurst PF, he had worked as a paramedic since 1997.

13

Exhibit 5, tab 42, page 43.
Ibid.
15
Ibid.
14

 Page 7 of 56
14.

Bulger’s Performance & Development Evaluations16 show steady improvement in
his work. His 2015 evaluation, completed by DeSilva on February 10, 2015, is quite
complimentary:
Cst. Bulger is an asset to both the NEIIU and the Bathurst Police
Department. His persistence towards drug investigations and his
tenacity towards the recruitment of new confidential human sources
will begin to pay off in the near future as the Bathurst Police drug
members along with NEIIU begin to target dealers in the greater
Bathurst area17.

15.

Chief Ernie Boudreau himself concurred with a very positive review for 2018,
writing:
Concur Cst Bulger has made big strides during such a difficult time
in his career. Keep up good work18.

16.

By all accounts, Bulger is a conscientious and dependable police officer. According
to DeSilva, Bulger “is the consummate professional” 19.

17.

The same also applies to Boudreau, who joined the Bathurst PF in 2009. All of his
evaluations are very positive, with his performance often rated as being excellent.
His supervisor concludes, in an October 2014 evaluation, that he “has the potential
to be the future leadership of Bathurst PF.”20 This is an extremely strong
endorsement for a junior officer. DeSilva stated on cross-examination that he had
no concerns with Boudreau’s performance in January 2015 and that he was a good
officer.

16

Exhibit 5, tab 27 : evaluations for 2010-2011, 2012, 2012-2013, 2014-2015, and part of 2018 were
provided.
17
Idem, at page
18
Idem, at page 77.
19
Stated not long before the end of his cross-examination by Mr. Munro.
20
Exhibit 5, tab 28, at page 69.

 Page 8 of 56
January 12, 2015
18.

All members of the Unit were at work on Monday January 12, 2015, save for
Bathurst PF Sgt. Roger Melanson, who was away on training, when DeSilva read
an emailed Crime Stoppers tip reporting that Michel Vienneau and Annick Basque
would arrive by train in Bathurst at 8 am on January 12, 2015, and that they would
be carrying drugs. The email confirmed that Vienneau drove a white 2013 Cruze.
It was approximately 9:50 am. The tip was dated January 11, 2015, the previous
day (a Sunday, when no one from the Unit was at work). Given that it was past 8
am, DeSilva told Bulger that he had “missed a load of drugs”. Bulger called the
train station and was told the train was delayed and would arrive at approximately
10:45 am.

19.

DeSilva received a second Crime Stoppers tip a few minutes later, this one dated
January 12, 2015, and time-stamped 8:26 am. In it, the tipster revealed that the
drugs were pills, that Vienneau was 50 years old, that Basque was 38 years old,
that they were from Tracadie, and that they had been drinking21.

20.

DeSilva assigned Bulger and Boudreau to investigate the tip and asked the “intel
unit” to assist them. He ran Michel Vienneau’s name in “PROS” (Police Reporting
and Occurrence System), an RCMP database of information on individuals who
have criminal records or who have been documented by police. He found nothing
useful.

21.

Richard checked the Service NB portal where he obtained a picture of Vienneau
from his driver’s licence and he was able to confirm that Vienneau was the
registered owner of a white Cruze and obtain its licence plate number.

21

All versions of this event were pretty consistent. Additional information was found in a “Can-Say
Statement” of DeSilva of January 14, 2015 found at page 33 of tab 33 of Exhibit 5.

 Page 9 of 56
22.

Matchett left for the train station. He arrived there first and confirmed the white
Cruze was in the parking lot. He reported this information back to the Unit and
parked his unmarked police vehicle (a black Ford Explorer) at the corner of
Thornton Avenue and Queen Street, where he could keep an eye on the Cruze.

23.

In the meantime, still at the police station, Boudreau walked to the GIS section of
the Bathurst PF to ask if any officers could come assist in the drug investigation or
drug bust. Cst. Julie Daigle sought her supervisor’s permission. Sgt. Marc Cormier
gave her his blessing and the keys to his unmarked vehicle, a Chevrolet Impala.
She grabbed her gear (side arm, vest, and notebook) and left shortly after. Bulger
briefed then Sgt. Ernie Boudreau (he would later be promoted Chief), who was the
sergeant on shift, about the situation possibly involving drugs coming to the train
station from Montréal so that he would make sure no marked vehicles were in the
vicinity and to advise a marked cruiser might be needed in case an arrest was
made.

24.

As Bulger and Boudreau were getting ready to leave, DeSilva told them not to “get
into a chase” – or words to that effect. They arrived at the train station at
approximately 10 am and parked one parking space away from the Cruze, facing
the tracks (west).

25.

Daigle arrived shortly after and parked between Bulger and Boudreau’s G6 and
the Cruze. Bulger, sitting in the passenger’s seat, handed her a DES radio through
the window, and she left to go park across the street from the train station, on the
East side of Thornton Avenue.

26.

Richard and Lajoie, who had difficulties starting the unmarked Dodge Caravan
police vehicle they were going to use in this operation, were the last two members
of the Unit to arrive at the train station. They got there approximately 15 minutes
after Bulger and Boudreau. Lajoie contacted Bulger who told him to cover the
northbound route, north of the train station on Thornton Avenue. Lajoie and

 Page 10 of 56
Richard parked facing south in a school parking lot on Duke St. They could not see
the Cruze and would have to rely on updates from Bulger to know what was going
on.
27.

While they waited, Bulger refined his plan to intercept Vienneau and Basque.

28.

The Unit was communicating using the DES system and text messages. Bulger,
who was the “lead” on this operation, advised the team that they would be arresting
Vienneau. If Vienneau left northbound, they would let him drive beyond the train
station to give him the opportunity to pick up any luggage (drugs) he might have
left at the station. Under this scenario, Lajoie and Richard would block him after he
left the station, with Daigle and the others blocking a southbound escape. If he
headed south, Boudreau and Bulger would block him by positioning their vehicle
in front of and facing the Cruze, and Daigle would block him from behind, again
with the other officers moving in.

29.

The train finally arrived at approximately 11:20 am. Vienneau and Basque walked
over to their vehicle. They placed a backpack and possibly another article in the
trunk of the car and Vienneau brushed the snow off. He then took a few pictures
or a video of the train and returned to the car.

30.

Vienneau backed up in a northerly direction on Thornton Avenue, confirming his
intention to head south. Bulger advised the other members of the Unit of what was
happening and told Daigle to proceed (to block Vienneau from behind). At the
same time, Boudreau backed the G6 on Thornton Avenue so that the cars would
face each other. Boudreau activated the emergency lights on the G6 as he started
backing up or while backing up.

31.

Bulger got out of his vehicle first, quickly followed by Boudreau. They both yelled
“Stop, Hands-up”, and according to the Respondents, “Police”. Vienneau did not
stop. He pressed the gas, heading forward. The Cruze came into contact with the

 Page 11 of 56
G6 then headed east, in Bulger’s direction. He continued yelling and backing away
from the Cruze, at one point falling then getting back on his feet, always heading
to the right of Vienneau’s Cruze, which kept heading in his direction, motor revving
and tires spinning, heading east and eventually northeast, until it drove into the
snowbank on the east side of Thornton Avenue.
32.

As the Cruze proceeded towards the snowbank, Boudreau, who was initially
behind and then on the driver’s side of the Cruze, continued yelling, eventually
firing two shots through the driver’s side rear window. He kept moving towards the
front of the Cruze, reassessed the situation, and fired two more shots in Vienneau’s
direction, through the driver’s door window. When these latter shots were fired, the
Cruze was either stopped or about to stop in the snowbank22. At approximately the
same time, Bulger, who was on his side in front or on the passenger’s side of the
Cruze, took a shot aimed at the back tire of the Cruze. He missed.

33.

After Boudreau’s last shots, the revving stopped, and Vienneau put his hands out.

34.

By this time, all Unit members were close by. Vienneau was taken out of his vehicle
by Lajoie and Richard. Lajoie, a former paramedic started providing medical
assistance to Vienneau and was soon joined by Bulger and others. One of
Boudreau’s bullets had pierced both of Vienneau’s lungs and his heart. He was
taken away by ambulance and passed away.

35.

Annick Basque was placed under arrest by Cst. Jeff Chiasson of the Bathurst PF
and later released.

36.

Nether Basque nor Vienneau had any drugs with them. The Crime Stoppers tips
were false. There is no evidence that Michel Vienneau was ever involved in drug
trafficking.

22

This is an important issue and will be discussed in more detail later in these reasons.

 Page 12 of 56
37.

These events were witnessed by Gérald Jean who was at the train station to meet
his sister and mother, and by Joseph Sutton and Wayne Coster, both locomotive
engineers for VIA, who were operating the train. They had gotten off the train by
the time the incidents took place. There were other non-police witnesses to the
incident, but only these 3 were called to testify.
Project Harmon and the Aftermath

38.

Later that day, Insp. Larry Wilson, the Officer in Charge of Major Crime for RCMP
– “H” Division in Nova Scotia was directed by his superior, C/Supt. Marlene
Snowman, to conduct an investigation into the events to determine if there were
grounds for criminal code charges against Boudreau and Bulger. Specifically, he
was required to determine if “the level of force used by the police officers was an
appropriate response to their situation”. He immediately started assembling a team
of 20 or so officers and experts who began arriving in Bathurst the following
morning.

39.

Wilson produced a detailed 52-page report in July 2015 – the “Project Harman –
Assist Bathurst Police Force” report23 to which was appended a 23-page “Use of
Force Review” prepared by S/Sgt. Kevin M. Surette, RCMP.

40.

Both the Report and the Review, which are generally favourable to the officers,
were submitted to NB Public Prosecutions. The New Brunswick Crown laid
charges against the officers on November 19, 2015, but these were dismissed on
February 24, 2017 following preliminary hearing proceedings held from August to
October 2016. A judicial review of this decision was dismissed on October 20,
2017. The Crown did not appeal24.

23

Exhibit 5, tab 42.
This background information on Criminal Code charges was discussed during the hearing. More
specific information is also found in the Notices of Arbitration Hearing, found at tabs 3 and 4 of Exhibit 3.
24

 Page 13 of 56
41.

At one point, the officers were suspended with pay under section 26.8 of the Act
and remain so to this day.
III.

42.

ISSUES
Section 32.6 of the Act requires that I determine whether the officers are guilty of
a breach or of breaches of the Code, and if so, that I impose one of the sanctions
listed at section 6 of the Code.

43.

I must, for each of the counts reproduced at paragraph 2 of the decision, decide if
the Respondents engaged in the alleged misconduct.
IV.

ARGUMENT OF THE PARTIES
Argument on behalf of the Complainant

44.

The Complainant’s main theme is that the unfortunate events of January 12, 2015
are the result of an “officer-created jeopardy”. In his view, the two officers decided
to “effect a joint venture … to arrest Michel Vienneau and Annick Basque on the
strength only of two Crime Stoppers tips”, which are unreliable. Three episodes
are to be considered: 1 – at the police station, 2 – at the train station, before
Vienneau and Basque arrive at their vehicle, and 3 – after the train arrived, before
and after Vienneau and Basque got into their vehicle. Mr. Chiasson filed a 96-page
Brief on Law outlining his main arguments and referencing relevant case law. He
also commented on the evidence of all witnesses at pages 12 through to 59. Oral
arguments to supplement the briefs and to respond to the opposite party’s
submissions were heard on December 9, 2019.

45.

According to the Complainant, the mandate of the Unit, including that of the
Respondents that morning, was to investigate the Crime Stopper tips – not to take
tactical action (detention or arrest). That is what was expected of them by their

 Page 14 of 56
supervisor and by the other members of the Unit. On the way to, or at the train
station, the Respondents hastily came up with a plan to arrest Vienneau and
Basque, to “show their mettle”, says the Complainant. They had no right nor
authority to attempt to detain or arrest Vienneau and Basque, and could not
conduct an investigative detention in order to determine if they were up to no good.
Instead of waiting for Vienneau and Basque to leave in their vehicle, the
Respondents could have, and should have if they felt the need to confront them,
do it while they were still outside of the vehicle. The Complainant argues that the
Respondents did not properly identify themselves and that is why Vienneau and
Basque reacted as they did. The Respondents are therefore to blame for how the
events unfolded.
46.

Mr. Chiasson rightly argues that much of the evidence presented was contradictory
and that I will have to assess not only credibility but also reliability of the evidence.
He provides a useful roadmap for this exercise at paragraphs 23 through to 42 of
his Brief on Law. Citing precedent, Mr. Chiasson argues that I must be guided in
this exercise by the following:
1.

Not all or nothing: I can accept or reject some, none or all of
the evidence of any witness: R. v. Clark, 2012 CMAC 3
(CanLII);

2.

Memory: I must be leery of the witness who displays “selective
memory”;

3.

Demeanor: the demeanour of a witness, while testifying, is
revealing. I should have some concerns with the evidence of
a witness who is not responsive, not straightforward in their
answers, evasive, hesitant or argumentative;

 Page 15 of 56
4.

Fantasies and Fallacies: a credible witness may provide
reliable evidence, but may also provide non-reliable evidence.

5.

Personal Interest: having a personal interest in the outcome
may affect impartiality: R. v. Gobin, 2018 CM 2007 (CanLII);

6.

No Presumption of Truth: no witness is “presumed to tell the
truth”. The trier of facts must assess each witness’ testimony
in light of the totality of the evidence adduced: R. v. Thain,
2009 ONCA 223 (CanLII), at para. 32; and,

7.

No Guarantee of Testimony Acceptance: a trier of facts is not
required to accept the evidence of any witness simply
because it is uncontradicted by other testimony. He or she
may rely on reason, common sense and rationality to reject
uncontradicted evidence: Aquilera v. Canada (Minister of
Citizenship and Immigration), 2008 FC 507 (CanLII), at para.
39 and Lubana v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 116 (CanLII), at paras. 9-11.

47.

Mr. Chiasson submits that there are 14 critical areas25 on which fundamental
findings of facts are required:
(a)

whether, on a balance of probabilities, it can be concluded that Michel
Vienneau and Annick Basque sincerely believed that they were not facing
police officers;

(b)

whether the operation of the motor vehicle effected by Michel Vienneau was
meant to evade a perceived mortal and unacceptable threat;

25

At para. 19 of his Brief.

 Page 16 of 56
(c)

whether Cst. Patrick Bulger properly identified himself, both in his clothing
and by his demeanor as a police officer;

(d)

whether Cst. Mathieu Boudreau showed himself both in the way he was
dressed and in the way he acted as an officer before taking the first of his
four shots;

(e)

whether Michel Vienneau's vehicle was in motion when the first two shots
were fired by Cst. Boudreau;

(f)

whether Michel Vienneau's vehicle was stopped and stuck in the snowbank
at any point in time where the two last shots were fired by Cst. Boudreau;

(g)

whether Cst. Bulger acted with restraint and with good judgment when he
took a shot at Mr. Vienneau's vehicle with a view to render it no longer
useable, given the risk to the people attending the train station on that day;

(h)

whether Cst. Mathieu Boudreau acted out of panic and fear rather than with
restraint when he took the actions he took;

(i)

whether the unmarked police vehicle used by both constables had the
proper equipment to make it, when needed, an obvious police vehicle;

(j)

whether both constables acted on their own without proper orders from their
superior, RCMP Ronald DeSilva;

(k)

whether both constables acted without showing proper judgment in allowing
Michel Vienneau to operate his motor vehicle or to move his motor vehicle
when one of the two tips received was that he and his companion, Annick
Basque, were intoxicated with alcohol, thus potentially creating an

 Page 17 of 56
immediate and extreme danger to those who were attending the train station
on that day;
(l)

whether, on the face of the record, it can be determined that there would
have been less dangerous and more effective alternate ways to intercept
Michel Vienneau and Annick Basque, none of which would have required
an overt display of violence by both constables;

(m)

whether the arrest of Annick Basque and her forcible detention thereafter
were necessary and appropriate under the circumstances;

(n)

whether both constables created by their actions a very dangerous situation
for themselves, which then forced them to use lethal measures to escape a
perceived risk of bodily injuries or death.

48.

Unsurprisingly, the Complainant submits that a fair assessment of the evidence
should lead to a finding against the officers, and that the only appropriate sanction,
in light of the circumstances, is dismissal. The Complainant relies upon 32
decisions, each of which I have read.
Argument on behalf of the Respondents

49.

The Respondents filed a 20-page joint Brief on Law. They argue that police officers
are vested with the power to arrest persons without a warrant where the officer,
subjectively, has reasonable and probable grounds on which to base the arrest
that are justifiable from an objective perspective.

50.

They posit that the evidence, viewed as a whole and properly assessed in terms
of reliability, is favourable to the Respondents. They contend that the evidence of
the police officers who testified is to be preferred over that of Annick Basque,

 Page 18 of 56
Gérald Jean, Joe Sutton, and Wayne Coster. In short, they state that the actions
of the Respondents are beyond reproach.
51.

The majority of their brief addresses counts 1 and 2 which deal with use of force
and proper use of a firearm. Quoting from Brown v. Haldimand-Norfork Regional
Police Force, 1987 CanLII 6336 (ONCPC), they argue that it would be unfair or
unreasonable “to examine the officers’ conduct in the atmosphere of the quiet
reflection afforded in the comfort of a hearing room”.

52.

Regarding count 3 (Neglect of duty), the Respondents claim that they had the
authority and indeed the duty to respond to and to investigate the Crime Stoppers
Tips and that their actions were proper that day. Indeed, their actions were
consistent with the training they received and how the Respondent Bulger had
performed previous police operations.

53.

Regarding counts 4 and 5 (Discreditable conduct), the Respondents rely on the
guidance provided in Re Smith, 2005 CanLII 77786 (NS PRB), quoted with
approval by arbitrator Haines in The Chief of Police, Fredericton Police Force v.
Constable Cherie Campbell, unreported, dated January 6, 201626:
1. The test primarily is an objective one.
2. The Board must measure the conduct of the officer by the reasonable
expectations of the community.
3. In determining the reasonable expectations of the community, the Board
may use its own judgment, in the absence of evidence as to what the
reasonable expectations are. The Board must place itself in the position
of the reasonable person in the community, dispassionate and fully
apprised of the circumstances of the case.

26

At para. 76.

 Page 19 of 56
4. In applying this standard the Board should consider not only the
immediate facts surrounding the case but also any appropriate rules and
regulations in force at that time.
5. Because of the objective nature of the test, the subjective element of
good faith (referred to in the Shockness case) is an appropriate
consideration where the officer is required by the circumstances to
exercise his discretion.
54.

The Respondents state that they were required by the circumstances to exercise
their discretion and that they did so in a manner consistent with appropriate rules
and regulations. In short, they state that the Complainant fails on these counts as
well. The Respondents rely on 14 authorities which I have reviewed.
V.

ANALYSIS
Introduction – Reliability and Credibility

55.

This is an unusual case: first, the incidents took place almost 5 years ago. With the
passage of time, it is normal for memories to fade. Also, most if not all of the
witnesses provided statements early on either as part of an initial internal review27,
or as part of the Project Harman investigation28. Some of the witnesses testified at
the preliminary inquiry into criminal charges laid against the Respondents, which
took place in the Fall of 2016. I have not seen witness statements obtained through
Project Harman nor have transcripts of the preliminary inquiry been entered into
evidence, although they were quoted at times during the cross-examination of
witnesses, notably the cross-examination of Annick Basque. Some witnesses did
not describe the events during the hearing exactly the same way as they did years
ago and the versions offered by different witnesses vary considerably on key

27

Bathurst Police Force General Occurrence Hardcopy – tab 33 of Exhibit 5. The statements, apparently
provided days following the incidents, were not reviewed in detail with their authors during the hearing.
28
Outline of interviews found at pages 24 to 38 of Project Harmon report, 42 of Exhibit 5.

 Page 20 of 56
elements, such as the circumstances surrounding the shooting of Vienneau. The
result is an evidentiary mishmash that I am required to sort out.
56.

Issues of reliability and credibility are bound to arise in this endeavour. Arbitrator
Haines makes a useful review of the relevant caselaw and applicable principles in
The New Brunswick Police Commission and Constable Jeff Smiley, unreported,
December 2, 2015 which I take the liberty of quoting at length (I underline those
parts which I find to be particularly relevant here):
113. In R. v. R.W.B. (1993), 24 B.C.A.C. 1, Rowles J.A. at
paragraph 29, dealing with the reliability and credibility of witnesses
in the case of inconsistencies and an absence of supporting
evidence, stated as follows:
In this case there were a number of inconsistencies in the
complainant’s own evidence and a number of
inconsistencies between the complainant’s evidence and the
testimony of other witnesses. While it is true that minor
inconsistencies may not diminish the credibility of a witness
unduly, a series of inconsistencies may become quite
significant and cause the trier of fact to have a reasonable
doubt about the reliability of the witness’ evidence. There is
no rule as to when, in the face of inconsistency, such doubt
may arise but at the least the trier of fact should look to the
totality of the inconsistencies in order to assess whether the
witness’ evidence is reliable. This is particularly so when
there is no supporting evidence on the central issue, which
was the case here.
…
115. I also take note of the following statements made by Rothstein
J. at paragraphs 80 and 81 of the decision of the Supreme Court of
Canada F.H. v. McDougall, supra:
[80] Corroborative evidence is always helpful and does
strengthen the evidence of the party relying on it as I believe
Rowles J.A. was implying in her comments. However, it is
not a legal requirement and indeed may not be available,

 Page 21 of 56
especially where the alleged incidents took place decades
earlier. Incidents of sexual assault normally occur in private.
....
116. In considering the question of credibility I would refer to the
British Columbia Court of Appeal case, Faryna v. Chorney, [1952]
2 D.L.R. 354 (B.C. C.A.) (which was quoted with approval by the
Ontario Court of Appeal in Phillips v. Ford Motor Co., [1971] 2 O.R.
637): as follows:
The credibility of interested witnesses, particularly in cases
of conflict of evidence, cannot be gauged solely by the test
of whether the personal demeanour of the particular witness
carried conviction of the truth. The test must reasonably
subject his story to an examination of its consistency with the
probabilities that surround the currently existing conditions.
In short, the real test of the truth of the story of a witness in
such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those
conditions. Only thus can a Court satisfactorily appraise the
testimony of quick-minded, experienced and confident
witnesses, and of those shrewd persons adept in the half-lie
and of long and successful experience in combining skilful
exaggeration with partial suppression of the truth. Again a
witness may testify what he sincerely believes to be true, but
he may be quite honestly mistaken. For a trial Judge to say
"I believe him because I judge him to be telling the truth”, is
to come to a conclusion on consideration of only half the
problem. In truth it may easily be self-direction of a
dangerous kind.
The trial Judge ought to go further and say that evidence of
the witness he believes is in accordance with the
preponderance of probabilities in the case and, if his view is
to command confidence, also state his reasons for that
conclusion. The law does not clothe the trial Judge with a
divine insight into the hearts and minds of the witnesses. And
a Court of Appeal must be satisfied that the trial Judge's
finding of credibility is based not on one element only to the

 Page 22 of 56
exclusion of others, but is based on all the elements by which
it can be tested in the particular case.
117. In Baker-Warren v. Denault, 2009 NSSC 59 (CanLII), Forgeron
J. reviewed the factors to be considered when making credibility
determinations. She stated at paragraphs 18 to 20 of her decision:
[18] For the benefit of the parties, I will review some of the
factors which I have considered when making credibility
determinations. It is important to note, however, that
credibility assessment is not a science. It is not always
possible to “articulate with precision the complex
intermingling of impressions that emerge after watching and
listening to witnesses and attempting to reconcile the various
versions of events:” R. v. Gagnon, 2006 SCC 17 (CanLII),
para. 20. I further note that “assessing credibility is a difficult
and delicate matter that does not always lend itself to precise
and complete verbalization:” R. v. R. E. M,. 2008 SCC 51,
para. 49.
[19] With these caveats in mind, the following are some of
the factors which were balanced when the court assessed
credibility:
a) What were the inconsistencies and weaknesses
in the witness’ evidence, which include internal
inconsistencies, prior inconsistent statements,
inconsistencies between the witness’ testimony, and
the documentary evidence, and the testimony of
other witnesses: Re: Novak Estate, 2008 NSSC 283
(CanLII), 2008 NSSC 283 (S.C.);
b) Did the witness have an interest in the outcome or
was he/she personally connected to either party;
c) Did the witness have a motive to deceive;
d) Did the witness have the ability to observe the
factual matters about which he/she testified;

 Page 23 of 56
e) Did the witness have a sufficient power of
recollection to provide the court with an accurate
account;
f) Is the testimony in harmony with the
preponderance of probabilities which a practical and
informed person would find reasonable given the
particular place and conditions: Faryna v. Chorney,
[1952] 2 D.L.R 354;
g) Was there an internal consistency and logical flow
to the evidence;
h) Was the evidence provided in a candid and
straight forward manner, or was the witness evasive,
strategic, hesitant, or biased; and
i) Where appropriate, was the witness capable of
making an admission against interest, or was the
witness self-serving?
[20] I have placed little weight on the demeanor of the
witnesses because demeanor is often not a good indicator of
credibility: R v. Norman (1993) 1993 CanLII 3387 (ON CA),
16 O.R. (3d) 295 (C.A.) at para. 55. In addition, I have also
adopted the following rule, succinctly paraphrased by
Warner J. in Re: Novak Estate, supra, at para 37:
There is no principle of law that requires a trier of fact
to believe or disbelieve a witness's testimony in its
entirety. On the contrary, a trier may believe none, part
or all of a witness's evidence, and may attach different
weight to different parts of a witness's evidence. (See
R. v. D.R., [1966] 2 S.C.R. 291 at 93 and R. v. J.H.
supra).
57.

See also: The New Brunswick Police Commission and Constable John Morrison,
unreported, August 20th, 2014 (Arbitrator McLaughlin), at paras. 104 to 111.

 Page 24 of 56
58.

In assessing the evidence of police officers, I was careful to take into account the
following caution of Chadwick J., in Miller v. Steward, Ont. Gen. Div., December
12, 1991, as quoted in Chartier v. Greaves, [2001] O.T.C. 121 (SupCt), at para.
68:
It is much easier for police officers to appear as strong and more
credible witnesses at trials, especially in view of their experience in
testifying before the Courts. In civil matters such as this, extra
scrutiny must be used in assessing their evidence to make sure that
it has not been coloured in favor of their position.

59.

Applying the above, I am satisfied that all witnesses, with the possible exception
of Basque, were generally credible. The reliability of their evidence is another
matter which will be discussed later in these reasons.
Standard of Proof

60.

I must scrutinize the relevant evidence, orally given at the hearing, reconciling the
various versions according to the above, and documents marked as exhibits, to
determine if it is more likely than not that the Respondents are guilty of the alleged
transgressions29. “Sufficiently clear, convincing and cogent”30 evidence is required
to meet the onus.
Analysis

61.

Counts 1 (use and care of firearm), 2 (use of unnecessary force) and 5 (oppressive
or abusive to any person) in my view all relate to the shooting of Vienneau. I believe
count 3 (police force policies) is also related to the shooting phase. The
Respondents are alleged to have “failed to work in accordance with official police
force policies and procedures”. The policy or procedure discussed at the hearing

29

The Balance of Probabilities test usually applies in civil matters but the Act actually prescribes it, at s.
32.6(1).
30
F.H. v. McDougall, 2008 SCC 53 (CanLII), at para. 46.

 Page 25 of 56
had to do with vehicle stops, being Chapter 3.6 of the Administrative Manual for
Municipal/Regional Police Forces31. I see this allegation as an intricate part of the
shooting phase.
62.

Count 4 (discreditable conduct), I see as a catchall charge. The conduct of which
the Respondents are accused relates to what Mr. Chiasson refers to as “officercreated jeopardy” which began at the police station and which ended with the
shooting of Vienneau.

63.

I believe the best way to deal with the allegations against the Respondents is to
group them, somewhat as Mr. Chiasson suggested, in three phases or episodes:
1. Planning – police station, 2. Planning – train station, and 3. The Shooting. I also
believe it is useful to address the 14 questions posed at paragraph 19 of Mr.
Chiasson’s Brief, reproduced above, at paragraph 47, as well as a few other issues
that were discussed in argument or which were raised during the testimony of the
Respondents.
The planning – police station (until arrival at the train station)

64.

In his outline of Bulger’s testimony, the Chief mentions in his Brief that no CPIC or
PORES32 checks were done either before the Respondents left the police station
or after, while they were waiting for the train to arrive. Two checks were done by
other officers. The head of the Unit, DeSilva himself, checked PROS for Vienneau,
not once but twice, and Richard accessed the Service NB portal where he was
able to obtain a photo of Vienneau and other useful information. These two senior
officers, the most senior in rank on the Unit, were obviously alive to the need for
as much information as possible. With the other officers getting ready to leave for

31

Exhibit 4, tab 23. I note that the New Brunswick Policing Standards, Exhibit 4, tab 22, deal superficially
with use of force at page 29, but it was not discussed in any detail during the hearing.
32
CPIC and PORES are databases similar to PROS. CPIC is a Federal portal whereas PORES is the
Bathurst PF internal system.

 Page 26 of 56
the station or already on their way, why DeSilva didn’t do a CPIC or a PORES
check is a little difficult to understand.
65.

DeSilva stated that he did not do a CPIC check and did not contact the Tracadie
RCMP to check the names because he wasn’t the one investigating. Similarly, he
didn’t run a PROS search on Annick Basque, because he wasn’t the one
investigating. Finally, DeSilva did not ask Richard to run a Service NB check on
Basque because he didn’t think of it.

66.

While it seems obvious in retrospect that CPIC and PORES checks should have
been made, and Basque should also have been checked, I fail to understand how
it would have been the responsibility of the Respondents to do these checks or ask
that they be done. This was, after all, a Unit operation, and others had taken charge
on performing checks. I’m not persuaded that it fell to the Respondents to ensure
all available checks were run.

67.

The Chief argues that the operation was hastily organized, and that this contributed
to the unfortunate outcome. I agree things happened quickly but this was through
no fault of any of the officers. In my view, the circumstances required swift action.
I find that the Respondent’s conduct while at the police station and until their arrival
at the train station is beyond reproach.

68.

I would also add that it was generally agreed by all police witnesses that the tip
was a credible one because a lot of the drugs coming into the Maritime Provinces
originates in Montréal and that the train is a good way to transport drugs given the
lax security measures in place at train stations, as compared to airports. The police
officers also all acknowledged that where there are illegal drugs, there are often
weapons. For this reason, it was agreed that this operation had the potential to be
dangerous. It was important that enough police personnel be on site for this
reason.

 Page 27 of 56
The planning – train station (decision to arrest)
69.

The following questions posed by Mr. Chiasson in his written submission relate to
this phase:
(j) whether both constables acted on their own without proper
orders from their superior, RCMP Ronald DeSilva;
(k) whether both constables acted without showing proper judgment
in allowing Michel Vienneau to operate his motor vehicle or to
move his motor vehicle when one of the two tips received was
that he and his companion, Annick Basque, were intoxicated with
alcohol, thus potentially creating an immediate and extreme
danger to those who were attending the train station on that day;
(l) whether, on the face of the record, it can be determined that there
would have been less dangerous and more effective alternate
ways to intercept Michel Vienneau and Annick Basque, none of
which would have required an overt display of violence by both
constables;
(n) whether both constables created by their actions a very
dangerous situation for themselves, which then forced them to
use lethal measures to escape a perceived risk of bodily injuries
or death.

70.

The Complainant argues that the Respondents were not directed, authorized, nor
justified to intercept or to arrest Vienneau; that they were dispatched to the train
station to investigate – in essence to observe.

 Page 28 of 56
71.

To me, this is not entirely consistent with the sequence of events. The whole thing,
after all, started with DeSilva telling Bulger “you missed a load of drugs”. He then
obviously gave his approval for the Respondents and other members of the Unit
to continue the investigation at the train station. He agreed on cross-examination
that this was a credible tip and that police had a duty to investigate it.

72.

His last words to Bulger and Boudreau before they left for the train station were:
“Be safe. Don’t get into a chase” – or words to this effect. He explained in his
testimony that the RCMP has a “no chase” policy. Boudreau’s understanding was
that they were going there to investigate and to possibly arrest Vienneau. He
stated, regarding DeSilva’s comment: “if we were only going there to observe,
there would be no reason to say that”. I agree that while DeSilva’s message was
not a clear direction to make an arrest, it was certainly not incompatible with an
arrest as there could obviously not be a chase if the sole purpose of attending to
the train station was to observe.

73.

DeSilva testified that he expected the Respondents and the Unit to “investigate the
tip”, acknowledging on direct and cross-examination that an investigation can turn
into an arrest (going tactical).

74.

Richard testified he had been tasked to assist in surveillance at the train station
but acknowledged on cross-examination that investigations can “turn tactical very
quickly”.

75.

Lajoie testified that he went to the train station (with Richard) “to assist them, as
we always do”, but also agreed that when gathering intelligence, at a moment’s
notice, the “situation can turn into a tactical situation”.

76.

When he left the police station, Matchett believed he was going to investigate the
Crime Stoppers tip. He agreed that any investigation can “very easily transform
into a tactical” operation.

 Page 29 of 56

77.

Daigle testified that Boudreau came into her section, explained that there were
drugs possibly coming into the train station and asked if anyone in the section
could go assist the Drug Section.

78.

The Chief argues that there was no need to arrest or detain Vienneau; and further
that it was unreasonable for them to do so on the basis of “a weak and unreliable
source of information, that is the Crime Stoppers tips”33. The Chief relies on R. v.
Debot, 1989 CanLII 13 (SCC). Debot does highlight that the verifiable credibility of
a tipster is an important factor in determining whether there are sufficient grounds
to justify a warrantless search. The Court writes, at p. 1168:
In my view, there are
at
least
three
concerns
to
be
addressed in weighing evidence relied on by the police to justify a
warrantless search. First, was the information predicting the
commission of a criminal offence compelling? Second, where that
information was based on a "tip" originating from a source outside the
police, was that source credible? Finally, was the information
corroborated by police investigation prior to making the decision to
conduct the search? I do not suggest that each of these factors forms
a separate test. Rather, I concur with Martin J.A.'s view that the
"totality of the circumstances" must meet the standard of
reasonableness. Weaknesses in one area may, to some extent, be
compensated by strengths in the other two. (emphasis added)

79.

The Court adds, at p. 1172:
In my opinion, it should not be necessary for the police to confirm
each detail of an informant’s tip so long as the sequence of events
actually observed conforms sufficiently to the anticipated pattern to
remove the possibility of innocent coincidence. As I noted earlier,
however, the level of verification required may be higher where the
police rely on an informant whose credibility cannot be assessed or

33

Complainant’s Brief, at para. 334.

 Page 30 of 56
where fewer details are provided and the risk of innocent coincidence
is greater. (emphasis added)
80.

The Complainant also relies on R. v. Mann, [2004] 3 R.C.S. 59, in which the
Supreme Court confirmed that there exists, at common law, a police power to
detain individuals for investigative purposes, but that investigative detentions must
be premised upon reasonable grounds34. The Complainant cites the PEI Supreme
Court decision in Doucette v. R. 2012 PESC 26 (CanLII) where the Court
summarized Mann in point form, at para. 35:

1.
An investigative detention must be based on objectively
reasonable grounds to suspect in all the circumstances that the
detainee is connected to a particular crime and that such a detention
is necessary;
2.
A hunch is not reasonable grounds to suspect and cannot
ground an investigative detention;
3.
The reasonableness of the detention must be assessed
against all the circumstances, notably, the extent to which the
interference with liberty is necessary to perform the duty, the liberty
interfered with and the nature and extent of that interference.
(emphasis added)
81.

The Respondents argue that a Crime Stoppers tip is akin to an anonymous 911
call, which requires a response and which may justify police officers to interfere
with a person’s liberty and property. They rely on R. v. Godoy, [1999] 1 S.C.R. 311
and R. v. Clayton, 2007 SCC 32 (CanLII).

82.

Bulger explained that the main purpose in going to the train station was to
investigate, to corroborate the information provided by the tip, but he understood
there might be a detention or an arrest, depending on what could be confirmed or
corroborated. Before leaving the police station, he told then Sgt. Ernie Boudreau,

34

Mann, at p. 76.

 Page 31 of 56
now Chief, that he might need transportation if they made an arrest, meaning a
marked police cruiser. I find this uncontradicted statement very informative on the
state of mind of Bulger at the police station and on what then Sgt. Boudreau should
have expected would happen. Now-Chief Boudreau did not testify.
83.

At the train station, once all information had been corroborated and once he saw
the vehicle, Bulger decided they would stop Vienneau. Bulger referred to the
following corroborative information which justified an arrest or an investigative
detention: 1-information obtained from Service NB confirmed the identity of the
owner of the Cruze; 2- the fact that the vehicle as described in the tip was parked
at the station; 3- that there was a light dusting of snow on it suggesting it had been
there for some time; 4- the fact that the train was coming from Montreal, a known
drug distribution hub for the Maritime provinces.

84.

Bulger advised Boudreau of the plan and communicated this information to the
other members of the Unit, all senior or very senior to him in years, and in some
cases, in rank (Sgt. Richard). Not a single one of them expressed any concern or
disagreed with the plan. Daigle didn’t voice any objection either.

85.

Did the Respondents have objectively reasonable grounds as explained in the
caselaw to detain Vienneau? In my view, it was not a strong case to justify an
investigative detention or an arrest. Here, the identity of the informant was
unknown. In the result, and unlike in Debot35, the Respondents could not rely on
the track record of an informant having provided reliable information corroborated
by police investigation in past investigations. Rather, the Respondents’ conclusion
that the tip was credible, as discussed above, was entirely based on corroboration
on the identity of Vienneau and of Basque, on confirmation obtained respecting
the vehicle and its location, and on the (justified) understanding that drugs came
to the Maritime provinces through Montreal, where the train originated from. There
was no corroboration of illegal activity. Without deciding the issue, which is not my

35

Discussed at page 1170.

 Page 32 of 56
role, I believe an arrest or investigative detention on those grounds might well have
been found to be unjustified by an appropriate tribunal36.
86.

I do not think, however, that this conclusion is determinative of whether the
Respondents breached the Code. Knowing now that this fateful decision to detain
would end up costing the life of an innocent man, and possibly result in long term
trauma for his spouse, it would be too easy in my view to second-guess the officers’
decision – and I find that, in reality, insofar as none of the other officers involved
voiced any concern, it became a joint decision of 6 for the most part senior officers,
including that of a sergeant. In these circumstances, I am not willing to re-evaluate
with the benefit of hindsight. I agree with the statement of arbitrator Filliter, found
at para. 154 of Fredericton (City) Police Force v. Reilly (Conduct Issues
Grievance), [2012] NBLAA No. 2:
It is so easy to sit back and second guess a police officer. These
persons are vested with the responsibility of protecting us and
enforcing many laws. And they do this in some of the most stressful
and uncomfortable situations imaginable. They make split second
decisions that may or may not result in the desired outcome.

87.

The same sentiment is expressed at para. 12 of Brown and Haldiman-Norfolk
Regional Police Force, supra.

88.

In conclusion, I find that the Respondents are not guilty of the charges alleged for
decisions made and actions taken at the train station up until they attempted to
detain or arrest Vienneau. In coming to this conclusion, I have considered the
“discreditable conduct” criteria laid down in Re Smith 2005 CanLII 77786 (NS
PRB), as discussed and applied by arbitrator Haines in Chief of Police, Fredericton
Police Force v. Constable Cherie Campbell, supra, upheld: 2016 NBQB 225
(CanLII), 2018 NBCA 54 (CanLII), leave to appeal to the Supreme Court of Canada

36

See R. v. Bennett, [1996] J.Q. no 545 (QL), and the analysis of Karakatsanis, J. in R. v. Chehil, 2013
SCC 49, at paras. 22 to 40.

 Page 33 of 56
denied: [2018] SCCA No. 485 (QL). Of note, I paid particular attention to the fact
that the officers were here required to exercise a discretion and that it is
appropriate in such a case for me to consider a “subjective element of good faith”.
I find that they acted in good faith.
89.

Returning to Mr. Chiasson’s questions outlined above, I find that,
-

with respect to question (j), as discussed above, the officers did not “act on
their own without proper orders”;

-

with respect to question (k), I find that it was not a show of bad judgment for
the Respondents to allow Vienneau to operate his vehicle while intoxicated.
The Respondents testified that he did not display any of the usual signs of
intoxication, which would have justified a decision not to allow him to
assume care and control of his vehicle. They were there on a drug
investigation and that’s what they focussed on. Again, I am not willing to
second-guess their decision;

-

with respect to question (l), in hindsight, a case could be made that there
would have been alternate ways to intercept Michel Vienneau which might
not have led to the same outcome. It would be too easy and incompatible
with my role, in my view, to second-guess the Respondents on this issue. I
further find that the Respondents, in deciding to confront Vienneau at the
train station as they did, were not “playing up for an audience, a gallery of
public spectators”, as argued at para. 348 of the Complainant’s brief; and,

-

With respect to question (n), I find that the Respondents did not improperly
create “a very dangerous situation”.

 Page 34 of 56
The shooting
90.

This segment starts with Vienneau backing his vehicle up in a manner indicating
he would be leaving in a southerly direction and ends with Vienneau’s death and
Basque being put under arrest. All witnesses, unsurprisingly, said that the incidents
happened very quickly. On just about everything else, there was much
disagreement. I am indebted to Mr. Chiasson for making an extensive review of
the viva voce evidence and providing references to specific times on the recordings
when key pieces of evidence were addressed. This review, along with my own
notes, proved invaluable in making findings on crucial facts.

91.

I return to Mr. Chiasson’s “critical areas”. I find I can answer some of the questions
posed by Mr. Chiasson without an exhaustive review of the evidence.
(a) whether, on a balance of probabilities, it can be concluded that
Michel Vienneau and Annick Basque sincerely believed that they
were not facing police officers;

92.

Basque was adamant in her testimony. When she observed Bulger and Boudreau,
she was convinced that they were not police officers. She referred in her evidence
to crazies, terrorists (shooting into the crowd) and druggies. This is consistent with
the evidence of other witnesses who, at a distance, did not initially recognize the
Respondents (or any of the other officers on site for that matter) as police officers.
This evidence is also consistent with the actions of Vienneau. We now know that
Vienneau 1- was not inebriated, and 2- did not carry drugs. He had no reason to
make a run for it or to try to run over one of the officers, but he did.

93.

I find, on a balance of probabilities, that Vienneau and Basque sincerely believed
they were not facing police officers.

 Page 35 of 56
(b) whether the operation of the motor vehicle effected by Michel
Vienneau was meant to evade a perceived mortal and
unacceptable threat;
94.

I will come back to this sequence of events later in these reasons in assessing the
Respondents’ reactions to Vienneau’s maneuvers. In my view, Vienneau’s
intention, what he meant to do (to get away or to strike Bulger), is not critically
important. What is important is what he did – and how Bulger and Boudreau
reacted. The evidence of Basque on this point is, to say the least, contradictory.
She stated at times that Vienneau would never hurt a fly, that he would never try
to injure anyone. On the other hand, there is evidence that she twice cried for him
to stop as Vienneau was driving his vehicle forward – she wanted him to go
backwards. She also stated that, had she been driving, she would have tried to hit
the Respondents who “were shooting in all directions”. When Vienneau
accelerated forward, he pushed Basque’s head down below the dash so she could
not see except for glimpses when she tried to put her head up. I don’t find her
evidence to be reliable in this respect.

95.

Other witnesses have testified as to what the car appeared to be doing, including
Gérald Jean (trying to get away, to avoid Bulger), Joseph Sutton (no attempt to
strike Bulger), Wayne Coster (trying to turn around, not “purposely attempting to
run someone over”), Matchett (vehicle accelerating towards Bulger, Bulger
backing up, pushing himself off the vehicle), and Daigle (vehicle driving purposively
towards Bulger, accelerating). Both Respondents testified that Vienneau’s Cruze
hit their vehicle then accelerated towards, and hit, Bulger.

96.

I find that Jean, Sutton, and Coster were at a disadvantage in terms of their ability
to observe37. They were farther from the Cruze than the other witnesses and their
position may not have allowed them to have a good sense of the closing distance

37

Jean estimates he was from 50’ to 80’ away, Coster was approximately 100’ away, and Sutton within
10’ of Coster.

 Page 36 of 56
between the Cruze and Bulger, and of the exact direction of the Cruze as it struck
Bulger.
97.

I find the documentary evidence (photographs38) helpful. Pictures of the Cruze in
the snowbank, depict the front wheels pointed straight. Going straight for Vienneau
meant going into the snowbank, which was unlikely to be his ultimate objective.
Something prompted him to aim in that direction. I find this corroborates the theory
that Vienneau was trying to strike Bulger.

98.

I am also of the view that Vienneau could have “escaped” by driving south on
Thornton Avenue. Boudreau testified that there were two full lanes available for
Vienneau to flee. The only vehicle coming from that direction was the Ford Explorer
driven by Matchett. Matchett was initially parked on the corner of Thornton Avenue
and Queen St., some 80 yards or 240’ from where the Cruze was initially parked.
Matchett only brought his vehicle behind the Cruze once it was stopped in the
snowbank, so before then, his vehicle was in motion, i.e. not blocking the northerly
lane. The photo Exhibits 9 and 10 show that where the G6 driven by Boudreau
was positioned (pointing north on the left hand side of the road) left the right
southern lane clear for traffic.

99.

I find that, viewed as a whole, the evidence suggests that Vienneau could have
escaped if that was his goal. On a balance of probabilities, I find that the operation
of his vehicle by Vienneau was not “meant to evade a perceived mortal and
unacceptable threat”.
(i)

whether the unmarked police vehicle used by both constables had
the proper equipment to make it, when needed, an obvious police
vehicle;

38

Exhibits 5 (tab 38, photos 28, 36, 37, 38, 39) and exhibits 11, 12 and 13.

 Page 37 of 56
100.

I’ve listed the emergency features of the Pontiac G6 at paragraph 12, highlighting
the equipment that was or was not operational, and I will make other comments on
this issue where I address count 3 later in these reasons. I have heard no evidence
on regulations or requirements respecting what equipment is required to make a
ghost vehicle, when needed an obvious police vehicle. At the end of the day, the
G6 was the vehicle that the Bathurst PF provided to the Respondents to enable
them to do their job, which entails conducting tactical operations requiring the use
of the emergency features. If the equipment was improper or insufficient or
inoperational, I fail to see how that would be the responsibility of the Respondents.
(m)

whether the arrest of Annick Basque and her forcible detention
thereafter

were

necessary

and

appropriate

under

the

circumstances;
101.

Neither Boudreau nor Bulger arrested or detained Annick Basque. While their
actions resulted in Basque’s arrest and detention, other officers made the actual
arrest. I find that the arrest and detention of Basque does not constitute a breach
of the Code on the part of the Respondents.

102.

I find it appropriate to group together the remaining “critical areas” identified by Mr.
Chiasson. I have referenced the counts to which, in my view, each of these areas
relate in bold characters:
(c)

whether Cst. Patrick Bulger properly identified himself, both in his
clothing and by his demeanor as a police officer; (Counts 3, 4,
and 5)

(d)

whether Cst. Mathieu Boudreau showed himself both in the way
he was dressed and in the way he acted as an officer before
taking the first of his four shots; (Counts 3 and 4)

 Page 38 of 56
(e)

whether Michel Vienneau's vehicle was in motion when the first
two shots were fired by Cst. Boudreau; (Counts 1, 2, 4 and 5)

(f)

whether Michel Vienneau's vehicle was stopped and stuck in the
snowbank at any point in time where the two last shots were fired
by Cst. Boudreau; (Counts 1, 2, 4 and 5)

(g)

whether Cst. Bulger acted with restraint and with good judgment
when he took a shot at Mr. Vienneau's vehicle with a view to
render it no longer useable, given the risk to the people attending
the train station on that day; and, (Counts 1 and 4)

(h)

whether Cst. Mathieu Boudreau acted out of panic and fear rather
than with restraint when he took the actions he took. (Counts 1,
2, 4 and 5).

103.

The Respondents (and indeed all other officers involved in the operation) were
dressed in civilian clothing – which is normal for an investigation unit, and normal
for drug unit personnel. Boudreau and Bulger, I find, displayed their police badges
on a chain around their neck. Could they have worn or displayed clothing that made
it more obvious that they were police involved in an operation? Perhaps. After the
events, when Bulger was on administrative leave, he approached the Chief or
Deputy Chief Bathurst PF about the possibility of purchasing “takedown vests” to
use when operations turn tactical. He was told to put his request on paper and to
obtain prices. Bulger stated he had recently heard that the GIS officers had
received new identification clothing to be used in tactical operations.

104.

So, perhaps other gear would have made it more obvious the Unit members were
police officers, but the gear they displayed that day was the only gear provided to
them. I find it would be inappropriate to hold this against them.

 Page 39 of 56
105.

Regarding the issue of whether the Respondent officers (and other officers
involved) identified themselves as police, Annick Basque stated:
-

She never saw any indication that the officers were police; and,

-

She never heard the word “Police”, although she stated she could not hear
what was being yelled by Bulger because she was inside the vehicle and
the defrost fan was activated.

106.

Gérald Jean stated:
-

It was only after the shooting that he understood police were involved
(flashing lights behind the Explorer); and,

107.

He never heard anyone yell out “Police, Police”.

Joseph Sutton stated:
-

He only understood police were involved when he saw Daigle’s badge, not
before the shooting; he never saw any police lights until everything was
over; and,

-

He heard “Stop, stop, don’t move, stay right there, Hands up, Hands Up”.
He was adamant he never heard anyone say “Police”.

108.

Wayne Coster stated:
-

He never saw any police badges or any sign police were involved until after
the shooting;

109.

-

He remembers thinking he wished police were there; and,

-

He never heard the word “police”.

Bulger testified he yelled out: “Police, Police, Stop” as he got out of his vehicle.

 Page 40 of 56
110.

Boudreau testified he yelled: “Police, Police” when he stepped out of his vehicle.

111.

I find, based upon my examination of all of the evidence and on the probabilities
that surround the currently existing conditions, that all “ghost” police vehicles
involved in stopping Vienneau displayed emergency lights. I believe the evidence
of Bulger, Boudreau, and of the other officers is corroborated by the following
exhibits:
-

Exhibit 5, tab 38, picture 9: blue light in tail light of Explorer;

-

Exhibit 5, tab 38, picture 24: red flashing light at middle top of windshield of
Explorer;

-

Exhibit 5, tab 38, picture 27: blue flashing light at middle top of windshield
of Explorer; flashing red and blue lights in back window of Impala;

-

Exhibit 5, tab 38, picture 36: red flashing light at middle top of windshield of
Explorer;

-

Exhibit 9: blue flashing light at middle top of windshield of Explorer; blue
and red light bar hanging from ceiling of G6;

-

Exhibit 11: red flashing light at middle top of windshield of Explorer;

-

Exhibit 13: same;

-

Exhibit 17-1: same for Explorer, plus red flashing light hanging from ceiling
of G6;

112.

-

Exhibit 17-2: red and blue lights in back window of Impala;

-

Exhibit 17-3: blue flashing light on top of windshield of Impala; and,

-

Exhibit 17-5: red flashing light hanging from ceiling of G6;

A comparison between exhibits 17-1 and 17-5 confirms that the wigwag lights
(flashing lights using high beam) on the G6 were operating39.

39

The Project Harman report confirms the wigwags were working when they inspected the vehicle.
(Exhibit 5, tab 42, page 43).

 Page 41 of 56
113.

Boudreau testified that he had stopped cars hundreds of times with the lights on
the G6 and that only once did a vehicle fail to stop. That was on January 12, 2015.

114.

In light of the documentary evidence clearly showing emergency markers on the
ghost vehicles, it is difficult to understand why the non-police witnesses did not
understand this was a police operation. I will come back to the case of Basque
later, but for the other witnesses, in my view, their vantage point and distance from
the vehicles probably interfered with their ability to see and recognize the
emergency lights for what they were – at the time of the shooting. Obviously, all of
these witnesses later understood and saw the flashing lights, but things went very
quickly between the revving of the engine of the Cruze, its impact with the G6, and
the shooting – likely not more than 3 or 5 seconds.

115.

Also, I think members of the public would expect marked cruisers to be at the scene
of tactical operations. Given that there were none at the relevant time, the natural
assumption would be that there are no police officers there and that there had to
be another explanation for what was taking place. This would be consistent with
Jean’s and Coster’s initial belief that a movie was being shot, or that the mafia was
there (Coster).

116.

I find that Bulger and Boudreau definitely yelled “Stop” repeatedly and that
Boudreau yelled “hands up” – probably repeatedly. I also find it likely that Bulger
and Boudreau yelled out “police”, at one point or another. I make this last finding
based on the evidence of the two officers and on the preponderance of
probabilities “which a practical and informed person would find reasonable”. I think
the command “hands-up” and the word “police” go hand in hand and were yelled
out prior to the shooting. I find that the witnesses who denied hearing the word
“police” likely did not have the ability to hear everything that was uttered or yelled
out by Bulger and Boudreau because they were too far from them or that they
simply did not take this information in. There was a lot happening in a very short
period of time.

 Page 42 of 56

117.

To be clear, I am not questioning the credibility of these witnesses but have doubts
as to the reliability of their evidence.

118.

As for Basque, I have grave concerns with the reliability of her evidence, in general.
I found that there were a number of inconsistencies in her own evidence and with
the evidence of other witnesses. She testified at different points that Vienneau was
trying to get away or that he had tried to run Bulger over40. I also find that her
evidence is contradicted on key points by incontrovertible evidence corroborating
different versions, such as the fact that the Cruze hit the G6 (which she denied),
that 5 shots were fired, not 30 or 60 (as she alleged), that the Respondents were
firing in the crowd (which is false), that the police officers savagely pulled Vienneau
from the car by his feet (false), that no one was helping Vienneau (false), not even
the paramedics, etc. I also find it odd that Basque testified the older of the two
officers, namely Bulger – which she referred to an older gentleman even though
he is much younger than she is – shot Basque (as previously stated, it was the
younger officer, Boudreau, who did). She was also overly argumentative in her
testimony. I understand that these events were quite traumatizing for her, but this
does not explain how she could be so wrong on so many issues.

119.

I do however accept her evidence that the “Charlie Hebdo” shooting of a few days
before was prevalent in the media and that she and Vienneau had talked about it
and exchanged messages with an acquaintance in Paris about Charlie Hebdo and
terrorism over the weekend. This person, according to Basque, told them that the
next attacks would take place in Canada, in big centers such as the Bell center, in
airports, and train stations.

120.

As part of his investigation into these events, Inspector Larry Wilson asked Cpl.
Luc Côté to review the contents of Vienneau’s Cell phone manually. At page 23 of

40

S/Sgt Surette makes reference to this version of Basque’s testimony at page 13 of his “Use of Force
Review”, discussed below.

 Page 43 of 56
the Report41, Wilson mentions that an unopened message had been sent to
Vienneau’s cell at 12:47 on January 12, 2015 (less than 2 hours after Vienneau
was shot and killed) saying there was a terrorist attack at the train station. I don’t
know if this message came from the same person who was forewarning Basque
and Vienneau about this possibility over the weekend, but it is consistent with
Basque’s evidence.
121.

We will obviously never know what was going through Vienneau’s mind, but I find
the evidence of Basque, somewhat corroborated by this message, suggests that
Vienneau and Basque were concerned about terrorists during the weekend and
when they arrived in Bathurst, and when Boudreau and Bulger blocked their way,
that’s what they saw. I think Vienneau acted quickly based on what he expected
to see and experience, not what was actually taking place.

122.

This would also explain why, instead of stopping or of backing up, or of taking
some other evasive action, Vienneau pressed on the gas and hit the G6 and then
twice hit Bulger with his car. The Respondents are clear in their evidence that there
was such an impact, and their evidence is corroborated by a forensic examination
of the Cruze and of the G6, confirming that there had been paint transfer between
the vehicles42. It is also graphically confirmed by photos 8, 9, 10, and 11 of Exhibit
1743.

123.

Why is this impact noteworthy? Because, in my view, it was a clear signal to the
Respondents that Vienneau was not going to stop. That’s how Daigle interpreted
it also. She was close to the Cruze, probably in the best position, as compared to
all other witnesses other than the Respondents, to observe the events.

41

Exhibit 5, tab 42.
Ibid., at pages 42-3.
43
Jean also confirms he heard an impact; a car hitting another car, although he says he was able to
recognize this sound of clashing steel due to his work experience as a steel fabricator. It will be recalled
that only plastic was damaged in this collision. Not steel.
42

 Page 44 of 56
124.

Daigle initially remained in her vehicle because she expected Vienneau would bolt.

125.

The evidence is inconsistent on the issue of where the Cruze was exactly and what
was going on when the Respondents fired their weapons. This is a critically
important issue as police officers are only authorized to discharge a firearm with
the intent to disable or cause death to protect life or prevent grievous bodily harm
to themselves or to others44. If the Cruze was stuck in the snowbank, disabled,
when Boudreau and Bulger discharged their firearms, this would go a long way in
establishing serious breaches of the Code. If, on the other hand, the purpose of
the officers was consistent with the Use of Force guidelines, they would not be
guilty of the charging counts related to use of force.

126.

On this specific issue, I have adopted the position put forth by Mr. Chiasson that
the officers have the onus of proving that the force used was not excessive in the
circumstances45.

127.

S/Sgt Kevin M. Surette conducted an extensive Use of Force Review46. He
interviewed or reviewed video and audio statements of 14 witnesses and reviewed
many relevant documents. He ends his 19-page report with the following
conclusion:
The perceptions and actions of Cst. MATHIEU BOUDREAU in
discharging his firearm at MICHEL VIENNEAU in an attempt to save
the life of Cst. PATRICK BULGER were reasonable and necessary
given the totality of the situation. These actions were consistent with
what would be expected from a police officer of similar background
and training. In addition, the actions of Cst. PATRICK BULGER in
discharging his firearm in an attempt to disable the vehicle driven by
MICHEL VIENNEAU to stop its progress was reasonable and
necessary given the totality of the situation, and also consistent with

44

See : Bathurst Police Force Operational Manual, Chapter 6.10 (Use of Force), Exhibit 5, tab 42, at
page 3 of Use of Force Review.
45
Argued at para. 348 of Mr. Chiasson’s Brief.
46
Appended to the Harmon Report. Supra.

 Page 45 of 56
what would be expected from a police officer of similar background
and training.
128.

While I cannot simply accept these conclusions without conducting my own
analysis of the evidence, which I have done, I found his review, in particular his
explanation of the “National Use of Force Model”, to be very helpful. This Model
illustrates how an officer should react when facing risk. According to the model,
which is similar to the model applied by the RCMP, the IMIM (Incident
Management Intervention Model), the level of force to be used is proportional to
the level of resistance. Under the model, cooperative behaviour justifies nothing
more than officer presence and communication. Where there is active resistance,
physical control might be justified. Where the person is assaultive, hard force
(baton, and other non-lethal weapons) is acceptable. Finally, the model prescribes
that only impending grievous bodily harm or death justifies lethal force.

129.

The model also requires that the officer continuously assess the situation so as to
ensure officer and public safety.

130.

I must weigh the evidence to determine if, when Boudreau discharged his firearm,
there was indeed a danger of impending grievous bodily harm or death or if the
Cruze was stuck in the snow, going nowhere, having ceased to be a threat.

131.

Jean could not remember what the shooter looked like, but stated he was wearing
a semi long or long trench coat and got out of a black SUV. He took a shot as soon
as he got out of his vehicle. Jean saw nobody getting out of the G6. He testified
Vienneau’s vehicle was stuck in the snowbank when the shots were fired. He
acknowledged that his eyesight is “not very good”.

132.

Sutton testified that the shots were fired just before or as the Cruze was driving
into the snowbank, which is consistent with the Respondents’ versions.

 Page 46 of 56
133.

Boudreau testified that the vehicle was in continuous motion headed for Bulger
and the snowbank and that he first took two shots, reassessed, advanced, and
took his two other shots, one being fatal. All the while, Boudreau stated, the vehicle
was still in constant motion, its tires spinning and its engine revving.

134.

Bulger, for his part, said that the vehicle hit him twice. The first time, the car hit his
knee. He put his hand on the hood to regain his balance. The tires were still
spinning and the engine revving. He was backing up as quick as he could – trying
to run away from the car. He fell in the snowbank, at which point the car hit him
again, on the left knee. He was stuck under the bumper of the Cruze. He was just
in front of the spinning tire. Afraid for his life, he started raising his gun toward
Vienneau, but he could see Daigle in her red Canada Goose jacket in the
background. That’s why he shot at the tire, in the hopes that the car would stop
coming at him.

135.

Respecting the testimony of the Respondents on this sequence of events, Mr.
Chiasson writes at para. 317 of his Brief:
It is interesting to note that both officers involved are offering
drastically different versions of what the car did in the snowbank. Cst.
Bulger said in (sic) move (sic) twice and Cst. Boudreau said the car
was in continuous movement when he took all the shots. This has to
be opposed to the civilian witness evidence on this specific point.

136.

I do not accept the civilian witness evidence that Boudreau fired his weapon when
the vehicle was stationary, in the snowbank. I find that Jean’s testimony is not
reliable on this point. His eyesight is not good, plus he was wrong on other key
pieces of evidence, notably the vehicle from which came the shooter. I think the
version of the two officers is more reliable. In my view, it is telling that Boudreau’s
shots were fired in two distinct moments47. He took two shots, reassessed the
situation, and took two more. In my view, that is consistent with the Use of Force

47

Both Jean and Coster remembered there was a pause between the two sets of shots.

 Page 47 of 56
Model discussed above and consistent with an officer exercising the proper care
in his decision to use deadly force.
137.

What of the apparent inconsistency between Boudreau and Bulger’s versions? In
my view, if their recollections are indeed incompatible with one another, and I’m
not convinced there is much difference between the two, I find that this
inconsistency may be explained by their different vantage points: the car may well
have hit Bulger twice and stop or appear to stop from his perspective. He was in a
good position to assess the slowing of the movement or the absence of movement.
But from Boudreau’s position, the car may well have appeared not to have
stopped. Boudreau was concerned not only by the movement of the car but also
by its spinning tires and revving motor. When he reassessed, he concluded the
threat was still live and given how quickly events were unfolding, I do not feel the
discrepancy between the versions casts any doubt on the veracity of Boudreau’s
evidence and on what I accept as a valid assessment of the threat.

138.

Similarly, having reviewed the evidence, I believe it was not inappropriate for
Bulger to take a shot at the rear tire. As he explained, he feared for his life. Despite
the precarious situation in which he found himself, he opted not to take a shot at
Vienneau – the most obvious target - for fear of striking Daigle. These are not the
actions of a careless officer; they are the actions of the type of officer DeSilva was
describing when asked to assess Bulger: a consummate professional. Bulger did
what he could. I find the following comments of the Ontario Civilian Police
Commission in Brown v. Haldimand-Norfolk Regional Police Force, supra, a
propos:
13. The test in our opinion is to look at the state of mind of the officer
at the time he had to take action. Perhaps discharging the firearm
into the car was fruitless… It was an act of panic out of fear for his
life. This is the fear that anyone else in his position might reasonably
experience. The fear of one’s life is a basic instinct.

 Page 48 of 56
139.

There is evidence, his own testimony, as corroborated by hospital records48 that
Bulger suffered an injury to his knee (arrachement osseux LCI – torn ligaments)
during these events which required he wear a “zimmer” a leg brace that goes from
the ankle to the thigh. I find that Bulger was indeed struck twice by Vienneau’s
vehicle as he was running towards the snowbank. In this context, I find fear for his
life is what prompted Bulger to take a shot at the back tire of the Vienneau’s
vehicle.

140.

Finally, with respect to Boudreau’s frame of mind – did he (inappropriately) act out
of fear and panic - I find that the evidence does not support such a finding. I find,
to the contrary, that Boudreau acted with restraint and that he properly assessed
and reassessed the situation before using his weapon. A person acting out of fear
and panic, in my view, would likely have shot multiple bullets at the perceived
threat. This is not what Boudreau did. While I do not doubt he was fearful and
probably extremely nervous, I think his use of force training kicked in when needed,
which explains why the shots came in two bursts, punctuated by a reassessment
of the situation.

141.

In summary, I find:
-

Bulger identified properly identified himself, both in his clothing and by his
demeanor as a police officer;

-

Boudreau showed himself both in the way he was dressed and in the way
he acted as an officer before taking the first of his four shots;

-

Vienneau’s vehicle was in motion when the first two shots were fired by
Boudreau;

-

Vienneau’s vehicle was not stopped and stuck in the snowbank when the
last two shots were fired;

-

Bulger acted with restraint and good judgment when he took a shot at
Vienneau’s vehicle; and,

48

Exhibits 14, 15 and 16.

 Page 49 of 56
-

Boudreau did not act out of panic and fear rather than with restraint when
he took the actions he took.

142.

There remains to be addressed the substance of Count 3 – neglect of duty in failing
to work in accordance with official police force policies and procedures.

143.

The Complainant entered the Operational Manual – Bathurst Police Force
Directives in evidence49. It is a 256-page document to which no reference was
made during the hearing. The Bathurst PF Use of Force policy, a 44-page
document, to which I have already referred, was entered in evidence as well50. A
document entitled New Brunswick Policing Standards was also submitted but not
referred to51. Finally, the Complainant relied on a portion of the the Administrative
Manual – Municipal/Regional Police Forces – New Brunswick52 dealing with
vehicle stops and cross-examined the Respondents extensively on the document
and on how their intervention with Vienneau failed to comply with this policy or
procedure.

144.

The policy differentiates between “Unknown Risk Vehicle Stops” and “High Risk
Vehicle Stops”. It states, as is relevant here:
High Risk Vehicle Stop
5.
The “high risk” vehicle stops are often more easily managed
in that the police officer has sometimes been forewarned is aware of
imminent danger and is in a stage of full alert, e.g., stolen vehicle,
vehicle suspected of being used in a major occurrence.
6.
Assess the threat in order to consider what actions should
be taken, such as,

49

Exhibit 4, tab 20.
Exhibit 4, tab 21.
51
Exhibit 4, tab 22.
52
Exhibit 4, tab 23.
50

 Page 50 of 56
o The nature of any crime which may be involved;
o The number of suspects in the vehicle, using the formula –
those you can count – PLUS ONE;
o Weaponry likely to be involved;
o Type of vehicle;
o The environment, e.g., isolation, wooded area, urban area,
etc.; and
o Available support, e.g., accompanied by a partner, firearms in
police vehicle, approximate time for back-up to arrive etc
7.
Bring the target vehicle to a stop in accordance with Section
2, Unknown Risk Vehicle Stop, and ensure that request for back-up
has been acknowledged. If the driver fails to stop and normal
procedures fail, a hazardous pursuit may follow and policy as outlined
in Operational Manual Chapter 3.7 will be followed.
8.

When the target vehicle is stopped:
a) Position the police vehicle as described under “unknown risk”
type of stop with special emphasis on stopping the police
vehicle on such an angle as to obtain cover from the engine
block.
b) NEVER APPROACH the target vehicle at this stage. Give
verbal commands to the occupants of the target vehicle using
the P.A. system.
…..

10.
There will be instances where this policy cannot be fully
applied. In such cases, good judgment, common sense, experience
and a sound knowledge of the law, particularly as it relates to use of
force, must prevail.
145.

The policy was put to Bulger and to Boudreau on cross-examination. In his Brief,
here is what Mr. Chiasson writes about their testimony of on this point:
297.
Cst. Bulger explained that he needed to exit his car when
they came face to face with Mr. Vienneau's car because, in his words,
he was a sitting duck inasmuch as the upper portion of his body was

 Page 51 of 56
exposed to a threat, although he did acknowledge that the engine
block of his car would protect, in his mind, the lower part of his body.
According to Cst. Bulger, he was safer standing from head to toe near
his car than inside his car.
298.
When confronted with the vehicle stop policy in effect at all
times, he gave contradictory and confused explanations to explain
how his actions complied with the policy.
…
349.
It must be borne in mind that the Manual of Operation
applicable to both Respondents clearly indicates that a vehicle stop
is either an unknown risk or high-risk situation for the very simple
reason that the car itself poses a danger. Cst. Larry Matchett
explained, in his evidence, that he would use his car to protect
himself while intercepting that vehicle because the engine block in
his car would offer protection. Here, for reasons beyond reasonable
understanding, both Respondents had devised a plan whereas both
would jump out of their car and put themselves at extreme risk given
that they had little police identification.
…
376.
Both constables have failed to comply with the above when
they exited their car as they did. It follows that they have failed to
follow established policies.
146.

Like Mr. Chiasson, I was unimpressed with the evidence of Bulger, to the effect
that he would have been a sitting duck had he remained in the car with only the
lower part of his body protected by the engine block. To be blunt, it didn’t make
sense. I find that Bulger’s “interest in the outcome” and “motive to deceive”53
affected his testimony on this point.

53

See Baker-Warren v. Denault, 2009 NSSC 59 (CanLII), cited in the Smiley decision, mentioned at para.
56, infra.

 Page 52 of 56
147.

Be that as it may, it is for the Complainant to prove the alleged breach, and I am
not convinced the officers are guilty under this count.

148.

First, point 8 a) of the policy dictates that the officer is to position the car as
prescribed in the “unknown risk” type of stop. The “unknown risk” type of stop
states that the vehicle is to be parked “approximately twenty feet behind the
violator vehicle at a slight angle to the left…”. This was simply not possible in the
circumstances.

149.

I would add that, at this stage, the Respondents intended to detain or arrest
Vienneau. They had four officers in the immediate vicinity to provide assistance. It
is clear in my view that the operation that day did not lend itself to proceeding as
suggested by the operational manual. The way the Respondents proceeded was
consistent with their training and with how they had done things in the past. In my
view, the Respondents were justified in resorting to point 10 of the manual, as they
were operating in circumstances where the policy could not be fully applied.

150.

Further, the Respondents would not have been able to follow the directive. While
the G6 was equipped with a P.A. system, it had not been operational for months54.
Although police officers are required to inspect the vehicle assigned to them for,
among other matters, unserviceable equipment, upon taking it over or “as soon as
practicable”55, the “Deputy Chief of Operations” is responsible for General Fleet
Management and maintenance56 and the “Section NCO’s and Shift Supervisors”
are responsible for the day-to-day care of all vehicles assigned to their section or
platoon57. It was not the responsibility of the Respondents to have the P.A. system
repaired.

54

See Boudreau’s testimony.125
Operation manual – Bathurst Police Force Directives, Exhibit 4, tab 20, page 204.
56
Ibid., at page 202.
57
Ibid.
55

 Page 53 of 56
VI.

FINDINGS RESPECTING EACH COUNT
Count 1
It is alleged that you, [both constables], On or about January 12,
2015, did improperly use and carry a firearm, as per subsection
35(g), of the N.B. Police Act and as described in s. 42
42
A member of a police force improperly uses and cares for
firearms if the member
(c) fails to exercise sound judgment and restraint in respect
of the use and care of a firearm.

151.

For the reasons expressed above, and in particular in paragraphs 125 to 141, I
find that the Respondents did not fail to exercise sound judgment and restraint in
respect to the use and care of a firearm.
Count 2
It is alleged that you, [both constables], On or about January 12,
2015, did abuse his authority, as per subsection 35(f), of the New
Brunswick Police Act and as described in s. 41
41
A member of a police force abuses his or her authority if
the member
(b) uses unnecessary force on a person.

152.

For the reasons expressed above, and in particular in paragraphs 125 to 141, I
find that the Respondents did not use unnecessary force on a person.
Count 3
It is alleged that you, [both constables], On or about January 12,
2015, did neglect your duty as per subsection 35(b), of the New
Brunswick Police Act and as described in s. 37
37
A member of a police force neglects his or her duties if
the member
(b) fails to work in accordance with official police force
policies and procedures.

 Page 54 of 56

153.

For the reasons expressed above, and in particular in paragraphs 142 to 150, I
find that the Respondents did not fail to work in accordance with official police force
policies and procedures.
Count 4
It is alleged that you, [both constables], On or about January 12,
2015, acted in a discreditable manner as per subsection 35(a),
of the New Brunswick Police Act and as described in section 36,
36(1) A member of a police force engages in discreditable
conduct if the member
(a)
while on duty, acts in a manner that is
(ii) likely to bring the reputation of the police force with
which he or she is employed into disrepute.

154.

For the reasons expressed above, and in particular in paragraphs 64 to 150;
placing myself in the position of “the reasonable person in the community,
dispassionate and fully apprised of the circumstances of the case”58, I find that the
Respondents did not act in a manner that is likely to bring the reputation of the
Bathurst PF into disrepute.
Count 5
It is alleged that you, [both constables], On or about January 12,
2015, acted in a discreditable manner as per subsection 35(a),
of the New Brunswick Police Act and as described in section 36,
36(1) A member of a police force engages in discreditable
conduct if the member
(b) while on duty, is oppressive or abusive to any person

155.

58

For the reasons expressed above, and in particular in paragraphs 125 to 141;
placing myself in the position of “the reasonable person in the community,
dispassionate and fully apprised of the circumstances of the case”59, I find that the

Re Smith, 2005 CanLII 77786 (NS PRB), as quoted at para. 76 of Chief of Police, Fredericton Police
Force v. Constable Cherie Campbell, supra.
59
Ibid.

 Page 55 of 56
Respondents did not engaged in discreditable conduct by being oppressive or
abusive to any person.
VII.
156.

DECISION

For the above reasons, I find the Respondents not guilty of the alleged breaches
of the Code. In the result, I dismiss the matters.

Dated at Fredericton, NB on December 24, 2019.

Joël Michaud
Arbitrator

 Page 56 of 56

Appendix A
List of Exhibits
1
2
3
4
5
6
----8
9
10
11
12
13
14
15
16
17

Affidavit of Ernest Boudreau
Emails
Joint Book of Exhibits volume I
Joint Book of Exhibits volume II
Joint Book of Exhibits volume III
Photo (Cruze in snow)
----Photo (aerial)
Photo (aerial -closer than Exh. 8)
Photo (Including Ambulance)
Photo (Cruze in the snow)
Photo (3 vehicles).
Photo (same, darker).
Triage Form
Emergency chart
Emergency Dept follow up
1 through to 11 (photos)