ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE GREGORY J. KONKLE
Appellant
-and-
NIAGARA REGIONAL POLICE FORCE
Respondent
DECISION
Panel: Raymond G. Leclair, Member Mary Lou Dietz, Member
Hearing Date: October l9th, l992
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: Raymond G. Leclair, Member Mary Lou Dietz, Member
Appearances: Donald A. Riou, Counsel for the Appellant Frederick E. Leitch, Q.C., Counsel for the Respondent
Also Appearing: Inspector Bruce Chambers Staff Sergeant Mike Mooney Administrator Wendy Southall
Hearing Date: October l9th, l992
The Appeal:
Gregory Konkle was a First Class Constable with approximately l4 years service. He pleaded guilty to a criminal charge of assault causing bodily harm on November l9th, l990; sentence was suspended and he was ordered to perform 300 hours of community service. Pursuant to Section l00 of the Criminal Code, he was ordered not to possess a fire arm for a period of five years. This order is mandatory and a five-year period is the minimum prescribed.
Konkle was then charged with the disciplinary offence of discreditable conduct, having been convicted of an indictable offence under the Criminal Code. The offence was pursued as a major offence. Constable Konkle pleaded guilty and the penalty imposed was an order that he resign within 7 days or be summarily dismissed. He appealed the penalty to the Police Services Board and now has appealed to this Commission.
The Facts:
The situation which led to the convictions involved the use of excessive force in imposing discipline upon his l2-year old son. The child was beaten with a belt. The child was later observed to have visible and severe bruising on his legs, back and buttocks while swimming with a friend.
The investigation was not initiated by Constable Konkle's son but rather by some other concerned person.
Background:
Officer Konkle was divorced from his wife when their child was three years of age. He maintained contact with the child and contributed to his support. In l989 the child's mother suffered a medical and emotional problem and Constable Konkle took custody of his son. The child had already demonstrated serious behaviour problems prior to that time.
After Konkle took custody of his son he consulted a psychiatrist, obtained a child psychiatrist for his son and took special training courses in coping with his child's problem, which had been identified as Attention Deficit Hyperactivity Disorder or ADHD (what used to be called hyperactivity). He arranged for medical treatment and medication and arranged for his son to attend an appropriate school. The child continued to engage in unacceptable behaviour such as stealing and lying. In attempting to deal with this problem, as well as others, Konkle used positive reinforcement, with withdrawal of privileges and several other methods in an attempt to control his son's unacceptable anti-social behaviour. The advice of experts whom he consulted was that if, given sufficient time, these methods of progressively harsher punishment were ineffective, corporal punishment should be considered.
In the submissions on sentencing even the prosecution did not doubt that Constable Konkle was motivated by his love for his son and on this one occasion he had unfortunately lost control of himself and went beyond the bounds of acceptable corporal punishment.
Constable Konkle has completed his community service satisfactorily.
The Appellant's Argument:
In two other cases police officers were disciplined for assault and their sentences were much less severe than dismissal. In these two separate cases against Constables Michael Smith and John Kelly of the Niagara Regional Police Force, the officers were penalized with respect to time off and then restored to duty, in spite of their convictions having resulted in orders prohibiting the possession of firearms for five years (similar to the restrictions placed upon Constable Konkle).
Constable Konkle is already restricted from street patrol due to an injury he sustained while on duty. Superintendent Kisur recognized this situation when he stated in his decision that Konkle could carry out his present duties without being armed.
Decision:
We are well aware of the current climate regarding child abuse and the efforts made to deter the same. The government cannot assume the monumental task of child responsibleWe must assume that the majority of parents arerearing. and well meaning with respect to rearingchildren. It is only in the past few decades that there has been any inquiry with respect to the use of corporal punishment, and even now it is by no means generally accepted that parents do not have the right, and in some cases the obligation, to physically punish children. At best parents are getting mixed messages from experts as to how they should act in their efforts to mold their children into responsible law abiding citizens.
Prior to this incident Constable Konkle has been a responsible and concerned parent. Certainly we do not condone child abuse and there is no question that the discipline applied by Constable Konkle to his son was excessive and cannot be tolerated.
The situation in which Konkle found himself should not be judged as usual or normal. Most parents experience considerable frustration at times when dealing with children who are much less difficult to manage than children with ADHD. While the penalty must send a message that it is intolerable for parents to abuse children, we must also take into account the need to support parents who are making every effort to maintain their children in the home rather than abandoning them to the streets or to social agencies. This case demonstrates our bifurcation of conscience in cases of family conflict. It seems at times as though the message being sent is that if you try and fail you will be punished but if you do not try at all you will be safe. This is not the message we wish to send. We believe it is important to support parents who assume their responsibilities in the way that Constable Konkle has.
Accepting that Constable Konkle must be punished for this intolerable behaviour, we must also take into account his l4-year record of performance with the Police Force and his sincere and continuing efforts to manage this most difficult child.
In our view this Officer's career ought not to be terminated for once losing control of himself in extremely difficult circumstances.
We stress that we see this case as highly exceptional. We see no evidence that would indicate that Constable Konkle is likely to repeat this conduct nor to use excessive force while acting in the line of duty.
It is also significant that Constable Konkle has not denied the incident or impeded the investigation, in fact quite the strengthened.opposite. Thus his credibility has been strengthened.
Finally we wish to comment briefly on Constable Konkle's existing physical impairment which, as mentioned earlier, was the result of an injury sustained in the line of duty. The Adjudicating Officer, Superintendent Kisur, appears to have taken that into account in imposing penalty and appears to have considered the ability of the Force to accommodate Konkle's physical impairment. We wish to stress that the two issues, Konkle's physical condition on the one hand and a penalty for misconduct on the other are totally unrelated. If the Force is unable to accommodate Constable Konkle's impairment, there is a method for dealing with that but the disciplinary process for misconduct is not the proper forum.
Conclusion:
- In light of all the facts it is our conclusion that Constable Konkle ought to be allowed to continue his career and we feel that an appropriate penalty is a reduction in rank from First Class Constable to Second Class Constable for a period of twelve months and his re-elevation to the rank of First Class Constable at the end of that period of time. The re-elevation of course assumes no misconduct in the meantime.
DATED THIS 4TH DAY OF JANUARY, 1993.
Per W.D. Drinkwalter, Q.C., Chairman