Constable Gary W. Parsons v. Halton Regional Police Force, 1989 CanLII 6718

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

CONSTABLE GARY W. PARSONS

Appellant

-and-

HALTON REGIONAL POLICE FORCE

Respondent

DECISION

Panel: W.D. Drinkwalter, Q.C., Chairman

Julio Menezes, Member

Hearing Date: January 24, 1989

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Presiding Members:

W.D. Drinkwalter, Q.C., Chairman

Julio Menezes, Member

Appearances:

F.E. Leitch, Q.C., Counsel for the Appellant

Ronald Southgate, President, Police Association - Halton

W.D. Dunlop, Counsel for the Respondent

Inspector Ian Algar

1. Constable Parsons appeals from his conviction andpenalty on a charge of neglect of duty - failing to work inaccordance with orders without due permission or sufficientcause, contrary to Section l(c)(iii) of the Code of Offences.

2. For convenience this will be referred to as Trial Number l. Constable Parsons further appeals from the penalty imposedfollowing conviction on two counts of neglect of duty and onecount of deceit. This will be referred to as Trial Number

3. Trial Number l was concluded on March 25th, l988 andConstable Parsons was ordered reduced in rank from First Class Constable to Second Class Constable for a minimum period ofone year. Trial Number 2 was concluded on May 6th, l988 andConstable Parsons was ordered to resign or, in default, to besummarily dismissed.

Preliminary Issue:

4. Before leaving this matter there is another issuewhich must be considered. When the matter was appealed to thelocal Board argument on behalf of the force was presented bythe chief and argument on behalf of the appellant was presented by counsel. Some time later counsel for the Board was permitted to re-argue the case for the force before theBoard in the absence of Constable Parsons and without notice to Constable Parsons. This was clearly improper.

5. Counsel for the Board on the hearing before us takesthe position that the above-noted error is not serious becausethe Constable retains his right to appeal to the OntarioPolice Commission. He does concede, however, that if Constable Parsons had not had a right to such an appeal thematter would be serious. Because of this error we feel that the proceeding before the local Board must be quashed.

6. Our options are to deal with the matter as though itwere an appeal directly from the hearing officer or to remitthe matter for re-hearing before the local Board. We feel that to remit the matter would serve no useful purpose butwould in fact only prolong the process and accordingly we havedecided to deal with the issue.

TRIAL NUMBER ONE

7. Constable Parsons was convicted of neglect of dutyin that he had failed to work in accordance with orders without due permission or sufficient cause. The orders in question constitute, in fact, a performance appraisal systemwhereby goals and objectives are set in co-operation with theofficer and then reviewed at the end of some appropriate timeperiod. In the case of Constable Parsons this review was conducted monthly.

8. The system adopted by the Halton Regional PoliceForce includes some thirty different measures. Of these, ninewere applied to Constable Parsons. In designing the goals andobjectives to be applied to any individual officer, theofficer and his supervisor select from the thirty measuresthose which they consider appropriate for the individual inquestion at the current time.

Grounds of Appeal:

1.The hearing officer erred in failing to find that theorder given to Constable Parsons was illegal.

2.The hearing officer erred in failing to find that theorder was unreasonable and contrary to existing forcepolicy.

3.The hearing officer erred in failing to performstatistical analyses and adjustments in respect of theorder.

4.The hearing officer erred in failing to deal with theevidence that the order to perform consisted of pro-activeduties while the officer was left in a reactive function.

5.The hearing officer erred in imposing a penalty of reduction in rank from First Class Constable to Second Class Constable which was excessive and bears no relation to the officer's previous record of discipline and previous penalty, and in failing to establish the periodof time of the reduction.

Ground Number l:

9. The appellant argues that the goals and objectivesset for Constable Parsons constitute an illegal order inasmuchas some of the measures relate to the number of charges to be laid. It is argued that no one has the authority to instructa constable to lay any specific charge or any number ofcharges. This argument fails to account for the totality ofthe system. The situation with which we are dealing stretchesover a twelve-month period and there was a performanceappraisal done at the end of each month. At the end of one month Constable Parsons objected that the order was illegalbut we agree with the hearing officer who found that thatobjection was not made with sincerity. It is noteworthy thatwith that one exception Constable Parsons accepted that theobjectives were not only reasonable but were attainable. His own comments on the performance appraisals indicates that heclearly accepts that he was failing to perform his duties inan acceptable manner. In addition to the monthly counsellingsessions, the Force sent Constable Parsons to the OntarioPolice College for a three-week course which is known as the"Advanced Training Course". This is a course intended for experienced constables who require some up-grading. The entire context of Constable Parsons's performance during thetwelve-month period indicates a sincere and vigorous attemptby the Police Force to re-generate the energy and enthusiasmof Constable Parsons in the performance of his duties.

10. We find that the goals and objectives were reasonable and were so accepted by Constable Parsons and thatthe appraisal system provided reasonable and adequateopportunity for Constable Parsons to offer some reasonableexplanation for his failure. Constable Parsons at no time offered any explanation for his failures but indeed acceptedthe appraisals.

11. We have considered carefully the thirty goals andobjectives used in the system and in particular we haveexamined those that were selected for Constable Parsons and find that were reasonable and appropriate in the circumstances.

12. We have also examined the method of appraisal,the consultation with the officer at the end of each month,and the opportunity given to the officer to put forward somereasonable explanation for his performance.

13. We find that this particular system, as applied inthis particular case, is entirely reasonable and does notconstitute an illegal order.

Ground Number 2:

14. This ground also must fail. The objectives were setin consultation with Constable Parsons who accepted them asreasonable and attainable. At the end of each month there was a counselling session and at no time did Constable Parsonsobject that the objectives were unreasonable or unattainable,neither did he offer any reasonable explanation for failing tomeet the goals.

Ground Number 3:

15. The appellant argues that the hearing officer failedto perform statistical analyses with respect to the performance of Constable Parsons and the performance of otherofficers on the force. This is to assume that the performanceappraisal system is a system of measuring the performance ofan officer against some average or standard being met by otherofficers. This performance appraisal system is designedspecifically for each individual; the goals and objectives setfor each officer differ. In addition to that, officers ofdifferent rank and different experience can be expected toperform differently. Constable Parsons agreed that the objectives set for him were reasonable for him and attainableby him without any consideration being given to the performance of other members of the force.

Ground Number 4:

16. The appellant argues that many of the objectiveswere of a pro-active nature whereas he was assigned to areactive function. This could constitute a reasonable explanation for failing to meet objectives but we do not findit is reasonable as put before us. We pay particularattention to the fact that this position was not taken byConstable Parsons throughout the twelve months in question andat the relevant time the objectives were accepted by him asreasonable in light of the assignments that were being givento him.

Ground Number 5:

17. The appellant argues that the penalty of reductionin rank is excessive and bears no relation to the officer's previous record of discipline and previous penalty.

18. Constable Parsons has a total of 21 years policeservice, l4 years with this police force. Had the penaltybeen imposed following the appraisal of his work for a shortperiod of time, such as one or two months, we could agree withthe appellant's position. This penalty, however, was imposedfollowing twelve months continuous effort by the force in anattempt to get Constable Parsons to perform in accordance withthe expectations for a First Class Constable. For twelve consecutive months he fell short of those expectations. His own notes made during the performance appraisals clearlyindicate that he accepted and understood that he was notmeeting the necessary standards. We note that Constable Parsons did not testify at the hearing and thus he has offeredno explanation for why, since he is not meeting the standardsfor a First Class Constable, he ought not to be reduced inrank. We find the penalty entirely appropriate.

Trial Number One - Conclusion:

19. For the above reasons we dismiss the appeal fromconviction and also dismiss the appeal from penalty.

TRIAL NUMBER TWO

20. This is an appeal from penalty: an order to resignwithin 7 days or be summarily dismissed. This penalty followsconviction on two charges of neglect of duty and one ofdeceit.

21. The neglect of duty charges arise from an incidentin l984 when Constable Parsons was assigned to an investigation. In connection with that investigation he filedtwo occurrence reports but failed to follow up with theinvestigation. Part of the investigation included the seizingof a tire iron by Constable Parsons which eventually wasanalyzed by the Centre of Forensic Sciences with respect tosome paint on the tire iron and the likelihood of that havingcome from a particular break-in.

22. The charge of deceit relates to the same matter butarises at the end of October l987 when Constable Parsons was asked for the status of the investigations in question becausethe force was still holding the tire iron. The officer makinginquiries wanted to know, in effect, whether the tire ironcould be thrown away or whether it might still be needed. In fact, the matters had not yet been disposed of and the tireiron would likely be a very significant piece of evidence.Constable Parsons reported that the matters had been clearedotherwise and with respect to the tire iron "trash it".

23. The above described conduct indicates a significantlack of dedication. The failure to follow through on investigations is a serious matter. Beyond that, however, theallegation of deceit is very serious inasmuch as it could wellhave led to the destruction of evidence. It is fortunate that that did not occur.

24. Having reviewed the matter carefully we can find noground to interfere with the conviction and penalty and forthese reasons dismiss the appeal from conviction and penaltywith respect to Trial Number 2.

DATED THIS 1ST DAY OF MAY, 1989.

W.D. Drinkwalter, Q.C., Chairman for himself and Julio Menezes