Who is liable for police abuse of power? Closing arguments in predator case

Was a police officer considered a city employee when he sexually assaulted multiple children over decades?

Lawyers focused on this question Wednesday as part of their closing arguments in a class-action suit against the City of Saint John.

The suit is accusing the city of vicarious liability for the harm Kenneth Estabrooks inflicted from 1953, when he became a police officer, to 1983, when he retired from the city works department. Estabrooks has since died.

In order to prove the city is liable for Estabrooks's decades of sexual assault against children, the plaintiffs have to prove the city had a "relationship" with Estabrooks, that the assaults did happen, and that the assaults happened during the course of employment.

The assaults happened before the implementation of the Police Act, so lawyers can't rely on that to decide if the city is liable.

Over the last two weeks, five men ranging in age from 58 to 66 testified about being sexually assaulted by Estabrooks when they were children.

Their separate assaults across different years had almost identical details, their testimony showed. Each one said that Estabrooks got them alone, coerced them to get into his police car, drove them to secluded places, and sexually assaulted them. 

Only one witness can be identified, the representative plaintiff Bobby Hayes. The identities of all other class action members are protected by a publication ban.

Used his police officer job to assault children

Plaintiff lawyer Celeste Poltak argued Estabrook's conduct during those decades makes the city liable.

He was found guilty of sexually assaulting children, the youngest of whom was eight, in his police car. 

He was found to have threatened them, used his position as a police officer, and used his city-supplied badge and uniform to make the children feel they had no choice but to submit to the assault. 

"Estabrooks was at all material times an employee of the city, or a least [closely connected], which cloaked him as a police office with extensive power over vulnerable children," she said.

After two decades of being a police officer, in 1975, Estabrooks confessed to having sexual relationships with two boys, one was 15 and the other 17. At the time, the age of consent was 14.

The police force asked the city to approve a transfer to the city's public works department so he's no longer interacting with the public. There, at least one employee made several complaints against Estabrooks that were "ignored," Poltak said.

"Despite such an exceptional request and allegations, no one at the city asked why this person was being transferred," she said.

Defence lawyer Michael Brenton said a police officer is not an employee of the city, even though the city signs the checks.

Police officers are hired and fired by the chief of police, he said, and the city is given the power to pay officers by the provincial government.

"Buying a police uniform, supplying a police car, paying police wages, is not introducing the risk into the community," he told the court. "Introduction of the risk into the community is a product of our justice system."

Connection 'too remote'

He said Estabrooks was evaluated and his performance was reviewed by superior police officers, not city officials.

"I'm not saying there isn't any connection, I'm saying the connection is too remote," he said.

Brenton also said in order for the judge to decide there was liability on the city's side, each class member would have to prove they were assaulted by Estabrooks while he was employed by the city. He said the only way to do this is to declassify the suit and have individual trials.

He said it's unjust to assume that each class member was in fact assaulted, since the class-action suit identifies them as people who are "alleging" they were sexually assaulted by Estabrooks.

Justice William Grant said he will deliver his decision in the coming days, "as quickly as possible."