ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
POLICE CONSTABLE CHRISTOPHER WALPOLE
Appellant
-and-
REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
Respondent
DECISION
Panel: Raymond G. Leclair, Member Dean E. Peachey, Member
Hearing Date: June 12, 1995
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 Dean E. Peachey, Member
Appearances: Mr. Ian Roland, Gowling, Strathy & Henderson, for the Appellant Inspector Tom Hughes, Peel Regional Police Service, for the Respondent
Hearing Date: June 12, 1995
Summary of Facts:
This is an appeal of an October 18, 1993 decision of the Regional Municipality of Peel Police Services Board confirming a conviction dated December 24, 1992 on a charge of careless damage to equipment. It is also an appeal of the original penalty of forfeiture of four days off, which was also confirmed by the Police Services Board.
The Appellant and the Respondent agree on the basic facts. In the early morning of May 17, 1992 Constable Walpole responded to two calls regarding individuals discharging firecrackers. Shortly before 6:00 a.m. Constable Walpole observed four youths on a grass recreation field behind a school.
He drove behind the school and onto the recreation field. According to his testimony in the disciplinary hearing, the youths split into two pairs and began to run when they saw him, and he drove across the field, attempting in his words "to bridge the distance between me and the youths" by crossing the field, which he estimated to be approximately 450 feet long. According to Constable Walpole, two of the youths veered in front of his cruiser. He estimated that they were approximately 70 feet in front of him when they did so, that he was not threatened by the youths or worried about striking them, and that he applied his brakes as a precautionary measure.
His vehicle went into a skid, slid along the grass field for 70 to 80 feet, crossed an asphalt walkway, slid 35 feet up a grass slope where it struck a light pole with its right rear corner, and continued a further 35 feet on grass surface before it came to rest. The youths were not apprehended, and there are no other known witnesses to these events.
The grass surface was wet from morning dew. The cruiser suffered damages in the range of $500-$800, and the light fixture atop the pole was knocked to the ground. The cost of damages to the light fixture was not known to the hearing.
Constable Walpole was charged with Damage to Equipment contrary to subsection l(h)(i) of Code of Conduct contained in Regulation 79l under the Police Services Act.
The Appellant and the Respondent differ on the speed at which Constable Walpole was travelling prior to applying the brakes. Constable Walpole stated at the hearing that he did not know how fast he was travelling, but he estimated that his speed was 20-30 km per hour.
The officer who investigated the accident, Acting Sergeant Spence, estimated that the vehicle was travelling 50-60 km per hour.
Constable Walpole claimed that when he applied the brakes, his car "hydroplaned" on the wet grass. Acting Sergeant Spence testified that the surface was slippery, describing it as "basically the same kind of surface that you'd be driving on if you were driving on ice." A/Sergeant Spence also testified that he observed scuff marks in the grass, beginning 80 feet before the paved pathway and continuing on the opposite side of the pathway up to the point were the vehicle came to rest. He described the scuffing as "down to bare ground," and "along the lines of an 80-foot golfing divot."
Constable Walpole testified that he had received specialized training for driving on wet surfaces while attending the Ontario Police College.
In rendering his decision, the Hearing Officer had accepted the testimony of A/Sergeant Spence with regard to vehicle speed over the testimony of Constable Walpole. A/Sergeant Spence also testified that had the accident occurred on a public roadway, he thought charges under the Highway Traffic Act would have been warranted.
Issues of Appeal:
In the Appeal to the Commission, Mr. Roland submitted that the Hearing Officer and Police Services Board erred by making inferences regarding vehicular speed that could only be made with expert opinion evidence. The Appellant maintains that such evidence was not presented at the disciplinary hearing, and that A/Sergeant Spence had never worked in traffic division, and was not qualified to draw the conclusions that he presented in his testimony.
Inspector Hughes maintains that A/Sergeant Spence had 18 years experience as a police officer and that Spence was well qualified to make his testimony and that expert witnesses are not typically employed in Highway Traffic Act proceedings.
We are not concerned principally with whether Constable Walpole was travelling 20 km per hour or 60 km per hour. He is not charged with exceeding a particular speed, and there is no argument before us that a certain speed represents a safe standard for driving on wet grass. Rather he is charged with damage to equipment arising out of willful or careless behaviour. Therefore, we are concerned with whether the officer was operating the vehicle responsibly or carelessly.
From the evidence presented to us it is clear that he did not have the vehicle under control, and that he was driving too fast for the conditions. When he was supposedly not worried about striking the youth, and was simply taking a precautionary measure, he skidded approximately 70 feet, reducing the turf to bare ground as he went, crossed a paved pathway, continued 35 feet up a slight incline, struck a light standard with sufficient force to knock down the fixture, and continued another 35 feet before coming to rest.
Given the evidence, we cannot conclude that his driving was safe and responsible.
Mr. Roland argued that "an accident in and of itself does not constitute carelessness." There was no evidence presented to us that the circumstances on that morning warranted unusual behaviour or a high degree of risk. The officer was pursuing individuals that were suspected of being involved in a municipal by-law violation. Therefore, the question for us to decide is whether Constable Walpole should reasonably have been expected to foresee the consequences of his action, or whether the consequences should reasonably be expected to have been foreseen by a prudent officer with specialized driving training.
On this point we agree that Constable Walpole exhibited careless behaviour. Whether the carelessness occurred in choosing his speed, or in the manner in which he applied the brakes when (by his testimony) he was in no danger of striking the youths, we cannot say. We only observe the end result, the officer's inability to maintain control of the vehicle. We appreciate Mr. Roland's argument that an accident in and of itself does not constitute carelessness, but we have not had evidence presented to us that an "accident" occurred in the sense of anything that was beyond the control or judgement of this trained officer. The incident took place on a level field, visibility was adequate, and there is no suggestion of mechanical malfunction.
All of the consequences appear to have arisen directly from the manner in which the officer operated his vehicle. The Appellant can argue that he was not cognizant of the dew on the grass, but the prosecution can equally argue that if he was not cognizant of it, he should have been.
The Appellant also argued that the charges brought against Constable Walpole constituted an inappropriate disciplinary response by the employer to actions that had not previously been disciplined. We were advised that in the previous five years there had been 475 motor vehicle collisions where members of the same police service had been deemed to be "at fault." Officers who pleaded guilty or were found guilty of Highway Traffic Act offenses in these events were not the subject of Police Services Act charges, and those found "at fault" for motor vehicle collisions on private property received a "conduct report" from their supervisors.
In only one instance in the previous five years was an officer charged under the Police Act or Police Services Act as a result of a motor vehicle collision on duty. (Neither party to the appeal provided us with any information as to what proportion of these incidents occurred on private property, or how similar or dissimilar they were to the incident giving rise to the current appeal.) On the basis of the fact that disciplinary charges have only been laid in one instance involving a motor vehicle collision, the Appellant argued that Peel Region Police Service erred in not putting its members on notice that such conduct will be disciplined, following generally accepted principles of progressive discipline.
The Prosecution cited Chief's Directive #119 which states, "When supervisors deem that the conduct of an officer under their command warrants disciplinary action, they shall prepare and submit a Conduct Report." The Prosecution argued that a Conduct Report outlines how an officer's actions are inappropriate, and is a tool used to correct unacceptable behaviour on police officers. The Prosecution maintained that a Conduct Report is therefore a disciplinary action, and thus the fact that officers involved in previous collisions had been issued Conduct Report signifies that officers "at fault" in motor vehicle collisions in fact had been routinely disciplined in the past. The Prosecution also cited the officer's employment record to support its view that the laying of a charge and the subsequent penalty constituted progressive discipline.
This record disclosed the following:
30 April 1990 - Constable Walpole counselled by supervisor for driving too fast.
13 May 1990 - Constable Walpole counselled by supervisor for driving too fast.
22 July 1990 - Constable Walpole collided with rear of another police cruiser while responding to a call, and counselled regarding his driving.
The Appellant cited several cases where tribunals or arbitrators had ruled that employers had not followed principles of progressive discipline.
In Air Canada and International Association of Machinists & Aerospace Workers (1981), 1981 CanLII 4528 (CA LA), 2 L.A.C. (3d) 442, an employee was suspended for removing from the premises aircraft food that had not been consumed and was destined for the garbage. The arbitrator determined that the suspension was inappropriate because although the company had a rule against consuming unused food, the rule was not enforced, and supervisors routinely ignored or even authorized violations of the rule. The arbitrator stated at Page 444 "If the company wished to enforce the rule and change the practice it should so notify its supervisors as well as its employees in advance that the rule will be strictly enforced." The arbitrator ruled that it was unfair to suddenly penalize one person for breaking the rule when others were not disciplined for the identical behaviour.
The case of Constable Walpole bears a distinction: Given our view that Conduct Reports are part of the chain in the disciplinary process, this case is not about suddenly enforcing a rule, but about increasing the level of discipline (from a Conduct Report to a charge under the Police Services Act.). There is no evidence before us that the employer condoned vehicle collisions, damage to police vehicles, or careless behaviour. Therefore, the question for us is not about the arbitrary enforcement of a rule, but rather whether the level of disciplinary action was appropriate.
In North York General Hospital and the Canadian Union of General Employees (1973), 1978 CanLII 3534 (ON LA), 5 L.A.C. (2d) 45, an employee was dismissed without progressive discipline.
Constable Walpole was not dismissed. He was required to forfeit days off after being cautioned several times about driving-related behaviour. It is the position of his employer that his penalty is in fact part of a chain of progressive discipline.
In Frito-Lay Canada Ltd. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647 (1975), 1975 CanLII 2059 (ON LA), 10 L.A.C. (2d) 234, a driver-sales representative was dismissed for consuming alcoholic beverages after finishing his last call for the day, but at a time when he was still responsible for the employer's vehicle. Evidence was presented that it was a long-standing practice for such employees to drink alcoholic beverages after having finished their last call. The panel hearing this appeal concluded that there was no clear definition within the company as to the time such employees who did not work specified hours went "on duty" or "off duty," and therefore the employer's regulations prohibiting alcohol consumption could not be arbitrarily enforced. No such ambiguity of fact exists in the Walpole case.
Esso Petroleum Canada and Energy & Chemical Workers Union, Local 614, (1989), 1989 CanLII 9271 (BC LA), 9 L.A.C. (4th) 390, bears many resemblances to the Walpole case. An employee was given a one-day suspension without pay for careless performance. The appeal did not dispute the carelessness, but argued that the penalty was inconsistent with previous company practice. There was also a dispute as to whether a note placed in the employee's training file about a previous incident constituted "discipline." The panel ruled that the note only registered unsatisfactory performance, and did not constitute discipline. Having made this determination, the panel viewed the Appellant as having a clean fourteen-year record free of any discipline, and that his penalty was inappropriate, given that other employees with tarnished records received lesser penalties for similar offenses.
We are satisfied that in the Walpole case the Chief's Directive #119 does establish a Conduct Report as a part of the disciplinary process. We also note that Constable Walpole's record was less than clean. In addition to the driving related occurrences listed above, he received four days off for Unnecessary Exercise of Authority on December 20, 1990 and a Conduct Report for unprofessional conduct on February 21, 1992.
We reject the Appellant's arguments that laying a charge under the Police Services Act was an inappropriate disciplinary response to behaviour that had not previously been disciplined.
We accept the Prosecution's stance that Constable Walpole had consistently fallen short of acceptable standards, and that the disciplinary action taken can indeed be seen as progressive discipline.
We disallow the appeal and see no reason to interfere with the penalty given.
DATED THIS 10TH DAY OF NOVEMBER, 1995
Raymond G. Leclair, Member
Dean E. Peachey, Member
per Murray W. Chitra, Chair