Constable Steve Bate v. Halton Regional Police Service, 1995 CanLII 15414

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE STEVE BATE

Appellant

-and-

HALTON REGIONAL POLICE SERVICE

Respondent

DECISION

Panel: Raymond G. Leclair, Member Alok Mukherjee, Member

Hearing Date: October 16, 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 Alok Mukherjee, Member

Appearances: Mr. Paul La Course, Administrator, Halton Regional Police Association Mr. Shane Hickingbottom, Agent for the Appellant Inspector Michael Kingston, for the Respondent

Hearing Date: October 16, 1995

1. This is an appeal by Constable Steve Bate of the Halton Regional Police Service from his conviction of wilfully or carelessly causing waste, loss or damage to any article of clothing or equipment, or to any book, document or other property of the police force contrary to subsection 1 (h)(i) of the Code of Conduct contained at R.R.O. 1990, Reg. 927.

Background to Charge:

2. On December 18, 1993, Constable Bate, a member of the Halton Regional Police Service, reported to the Milton Station at 10:00 a.m. for his tour of duty. Constable Bate's normal time for that day would have been 7:00 a.m., however, he had received authorization to use three (3) hours of credited time off, hence commencing his shift at 10:00 a.m.

3. Upon arrival, Constable Bate found his immediate supervisor, Acting Sergeant Dunham, absent from the station, and therefore not available to formally "parade" Constable Bate prior to commencing his duties. Constable Bate proceeded to "parade" himself by checking the duty roster that was on a clipboard with Constable Bate's assignments and zone responsibility. While he was checking the duty roster, he observed some papers in clear view on the Sergeant's desk, adjacent to the duty roster. Included in these papers, which were all to the attention of Constable Bate, was a memo addressed to Constable Bate from Acting Staff Sergeant Joe Taylor, which sought to bring to Constable Bate's attention concerns about requests for time off, and the Service's expectations with respect to such requests.

4. The memo concluded by stating that a copy would be placed in his performance file and was marked "c.c. Performance File". Constable Bate read the memo and subsequently shredded it. Upon returning to the station, the immediate supervisor questioned Constable Bate regarding the whereabouts of the memo that the supervisor had left on the Sergeant's desk. Constable Bate immediately informed his supervisor that he found the memo, read it and believing it was for him (Bate), subsequently shredded it. As a result of this, Constable Bate was charged with wilfully or carelessly causing waste, loss or damage to any article of clothing or equipment, or to any book, document or other property of the police force.

5. At the hearing held May 31, 1994, the Adjudicator, Inspector Richard Kivell, found Constable Bate guilty of the charge and directed Constable Bate to forfeit thirty (30) hours of pay. The Adjudicator rendered his written Decision on June 16, 1995 and July 19, 1995. The Halton Regional Police Services Board upheld the conviction and affirmed the penalty following the hearing of an appeal on January 23, 1995. The Board rendered its written Decision on January 30, 1995. On February 27, 1995, Constable Bate filed a Notice of Appeal with the Ontario Civilian Commission on Police Services (the "Commission") pursuant to Section 65 of the Police Services Act. This is the subject of these proceedings.

Grounds for the Appeal:

6. The Appellant submits that the evidence did not support the finding of guilt. The Respondent agreed that a memo received by an officer from a supervisor, whether it be a memo praising or criticising the officer's conduct, is the officer's memo and may be dealt with by the officer as he or she desires.

Reasons for Decision:

7. There is no prohibition against destroying a memo by shredding it as Constable Bate did in this instance. The Respondent argues that the memo, addressed to Constable Bate and left with other documents for Constable Bate, and without any additions, notes or markings, was in fact the copy belonging to the Officer's Performance File and that it was to be filed in the Performance File after being initialled by Constable Bate. Admittedly, any notes, entry or document placed in an officer's Performance File belong to the Police Service. Although any copy prepared to be filed in the file would belong to the Service, on the facts presented to us we find that the officer acted reasonably in assuming that the memo, found with others and without any markings, was his and he could deal with it as if it was his. There was no indication that this copy of the memo was the one destined for the file or was the copy belonging to the Service. The Respondent agreed that the officer followed proper procedure in "parading" himself when he arrived at the station and found that his immediate Supervisor was not available. The Respondent does not question the officer's right to retrieve the memo and other documents left for him on the Sergeant's desk.

8. A second copy of the memo was also placed in Constable Bate's drop file; and this he found after he had read and destroyed the first copy. The Respondent argues that having found this second copy of the memo in his personal drop file, Constable Bate should have realized that the copy on the Sergeant's desk was not his and replaced it with his second found copy. We are unable to accept this argument. In the absence of any clear instruction to Constable Bate as to the ultimate destination of the two copies, it is reasonable to believe that two copies were made for the officer.

9. The Respondent argues that Constable Bate should have known better because he fully knows the process in that he sometimes works as an Acting Sergeant. We recognize that an officer with Constable Bate's length of service and experience should be knowledgeable about the process. However, we are not convinced that the evidence establishes that the copies destroyed were the Service's and not the officer's or that Constable Bate wilfully or carelessly destroyed these. No evidence was produced as to the process for a notation being entered into an officer's file. We cannot believe that the process would include leaving a copy of a memo in plain view of any person in proximity of the Sergeant's desk, without any instructions or request to read, initial and return for filing. Although the charge specifically identifies the offence in regards to the copy found on the Sergeant's desk, we are not convinced that the officer's actions with the second copy of the memo can be used to characterize or explain the officer's intention when dealing with the first copy he found.

10. The Appellant sought to raise a new argument, not previously pleaded before the Adjudicator, the Board or even raised in the Factum, without notice to the Respondent. We heard the argument reserving our decisions as to whether we would accept it. The Respondent was completely surprised by the argument and unprepared to respond. The Appellant wished to argue that based upon statutory interpretations of rules the burden required to prove wilfulness was greater than that required to prove carelessness, since the particulars of the charge allege the officer wilfully destroyed the memo. The charge originally stated the offence in the alternative. Because of our previous finding, we find it unnecessary to deal with this argument. However, we would like to state that we do not find it proper for any argument to be raised at a hearing before us without it being raised in the factum or some other notice being provided to the other side. We believe that only in exceptional circumstances and for compelling reasons should an exception be made to this requirement.

Decision:

11. For the reasons set out above, we allow the appeal, and set aside the conviction and penalty

DATED THIS 5TH DAY OF DECEMBER, 1995.

Raymond R. Leclair, Member

Alok Mukherjee, Member

per: Murray W. Chitra, Chair