ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
IN THE MATTER OF A HEARING UNDER SECTION 40, POLICE SERVICES ACT
IN THE MATTER OF THE PROPOSED TERMINATION OF EMPLOYMENT OF A CONSTABLE WITH THE SMITHS FALLS POLICE SERVICE
Presiding Members:
Diana A. Jardine, Member
Raymond G. Leclair, Member
Appearances:
Michael C. Allen, Spokesperson for the Smiths Falls Police Services Board
Martin J. Doane, Counsel for the Smiths Falls Police Association
Hearing Date: August 31st, 1995
Background:
On April 25, l995 the Smiths Falls Police Services Board (the "Board") wrote the Ontario Civilian Commission on Police Services (the "Commission") seeking direction on a proposal to "downsize" by "one officer hired in mid l994 as a replacement officer".
After some further background material was obtained, this correspondence was tabled at the Commission's regularly scheduled meeting of June l2, l995. On June l5, l995 the Board was advised that any termination must be in accordance with the requirements of section 40 of the Police Services Act, R.S.O. l990, c. P. l5 (the "Act").
Subsequently, on June 22, l995 the Board wrote the Commission formally requesting by way of Resolution, that a public meeting be convened under section 40 of the Act "to deal with the termination of a replacement uniform officer".
This meeting was originally scheduled to take place in Smiths Falls on August l0, l995. However, at the request of the Smiths Falls Police Association, the date was changed to August 3l, l995. This was formally communicated to all parties and Public Notice published in local newspapers.
The meeting took place on the evening of August 3l, l995 in the Council Chambers of the Town of Smiths Falls. Mr. Michael C. Allen spoke on behalf of the Board. Mr. Martin J. Doane appeared on behalf of the Association.
At the completion of the meeting both parties requested the opportunity to make further written submissions. It was agreed that Mr. Doane would provide his material within l4 days and the Board would be permitted a similar period to respond. Unfortunately, this material was not received until September 29, l995 and this resulted in a delay in the subsequent response.
The Facts:
The Town of Smiths Falls is located in eastern Ontario on the Rideau River. Currently it has
900l residents. The population of this community has been relatively stable for a number of years. It has remained above 9000 residents since l984.
The present municipal police service has 26 members (20 uniformed officers and 6 civilians). This complement has varied from l7 in l978 (l6 uniformed and l civilian) to 27 in the second half of l994 (2l uniformed and 6 civilians)
In l994 the Board was advised that the Service was facing a number of medium and indefinite term absences of uniform staff. This was because of illness, injury and pregnancy. As a result, 3 of the Service's 5 platoons were under strength. This resulted in an increase in overtime costs and problems with scheduling training and vacation.
The Board considered the information and passed a motion to “support the recruitment of two 4th Class Uniform personnel to cover the existing staff absences”. The Board directed that a Letter of Understanding be sought from the Police Association for the temporary personnel since the Collective Agreement was silent on the issue. The Association was approached and recorded in the minutes of the 1994 Contract Negotiations meeting that it “supports any efforts by the Board to increase staffing to deal with absences and workload”.
Two officers were hired. The Board asserts that when hiring both officers, they were advised of the temporary nature of their appointments. One of the officers has since resigned to take other work elsewhere. The remaining constable was hired on July 18, 1994. The Board maintains he is no longer required to ensure that adequate and effective police services are maintained in Smiths Falls. It is this proposed termination which is the subject of this proceeding.
The officer in question is presently assigned to one of the Service's 5 platoons. He is that platoon's 4th officer. However, in Smiths Falls, platoons are customarily staffed by 3 officers - l Sergeant and 2 constables. With 3 officers assigned to each platoon, because of various absences, there tends to be two officers available for patrol. To the extent that such
scheduling does not achieve this objective, other officers may be assigned overtime to ensure that the patrol requirements are met. These 5 platoons are scheduled, with some overlap, to ensure that the Service will provide adequate and effective patrols in the community at all times.
The Law:
Section 40 of the Police Services Act states:
(1) A board may terminate the employment of a member of the police force for the purpose of abolishing the police force or reducing its size if the Commission consents and if the abolition or reduction does not contravene this Act.
(2) The Commission shall consent to the termination of the employment of a member of the police force under subsection (1) only if,
(a) the member and the board have made an agreement dealing with severance pay or agreed to submit the matter to arbitration; or
(b) the Commission has made an order under subsection (3).
(3) If the member and the board do not make an agreement dealing with severance pay and do not agree to submit the matter to arbitration, the Commission, if it is of the opinion that it would be appropriate to permit the abolition of the police force or the reduction of its size, may order the member and the board to submit the matter to arbitration and may give any necessary directions in that connection.
Essentially, this provision requires that before a Board may terminate the employment of an officer for the purposes of reducing the size of a Service, it must obtain the approval of the Commission. In order to grant such approval, the Commission must be satisfied that the proposed reduction does not impair the force's legal obligation to provide "adequate and effective" policing services to the community.
The Board and the Association agree that in the event the termination is approved, the
Commission should make an order for arbitration.
The Arguments:
The Association alleges that allowing the termination will result in the Town of Smiths Falls breaching its obligation to provide adequate and effective police services in accordance with the community’s needs, as required by section 4 of the Act.
The Association states that a loss of one officer represents a 5% reduction of its 20 member contingent and actually a 6-7% (1 of 15 or 16) reduction of the Service's policing capacity considering that its complement includes the Chief, Deputy Chief and three members on modified duties. The Association contends that the Service is stretched beyond its capacity and presently, even with the officer in question, insufficiently staffed to meet the community’s policing needs.
This raises the question of what is "adequate and effective police services". The Act offers no definition or standard to be applied. The Association invites us to examine the following provisions to assist us in setting the standard.
Section 1 of the Act states:
Police services shall be provided throughout Ontario in accordance with the following principles:
The need to ensure the safety and security of all persons and property in Ontario.
The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.
The need for co-operation between providers of police services and the community they serve.
The importance of respect for victims of crime and understanding their needs.
The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society.
The need to ensure that police forces are representative of the communities they serve.
Section 31(1) of the Act states:
A board is responsible for the provision of police services and for law enforcement and crime prevention in the municipality ...
Section 42 of the Act states:
(l) The duties of a police officer include, (a) preserving the peace;
(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;
(c) assisting victims of crime;
(d) apprehending criminals and other offenders and others who may lawfully be taken into custody;
(e) laying charges, prosecuting and participating in prosecutions;
(f) executing warrants that are to be executed by police officers and performing related duties;
(g) performing the lawful duties that the chief of police assigns;
(h) in the case of a municipal police force and in the case of an agreement under section 10, enforcing municipal by-laws;
(i) completing the prescribed training.
(2) A police officer has authority to act as such throughout Ontario. (3) A police officer has the powers and duties ascribed to a constable
at common law.
Section 3 of the Ontario Regulation 144/91 states:
The oath or affirmation of office to be taken by a police officer, special constable or First Nations Constable shall be in the following form:
I solemnly swear (affirm) that I will be loyal to Canada, that I will uphold the Constitution of Canada and that I will, to the best of my ability, preserve the peace, prevent offences and discharge my other duties as (insert name of office) faithfully, impartially and according to law.
The Association asserts that the content of these principles and duties provide guideposts and to the extent that these are not being fulfilled as required by a community’s needs, that a community would not be receiving adequate and effective police services.
Adequacy is to be measured against an objective standard in relation to the core policing functions which should largely be consistent throughout the province, regardless of the size or location of the community, and on a subjective standard, having regard to that particular community’s unique circumstances and its perception and expectations. The Association argues that the financial concerns of the Board are irrelevant in determining the adequate and effective policing in the community and are an improper basis upon which to seek the reduction of a police service.
Assistance can be found in previous decisions of the Commission. In Town of Goderich, OCCPS decision dated August 4, l995 the Commission highlighted a number of different means to measure "adequacy" which evolved over the last 30 years. These included:
(a)
Historical
- What has the level of policing in this community been in the past?
(b)
Comparative
- What policing services are in place in similar communities of a similar size? What are the comparative per capita costs?
Comparative crime rates? Comparative caseloads? Comparative
crime clearance rates?
(c) Prospective - Is there anticipated growth or other changes to the community that warrants an increased investment in policing?
(d) Alternative - Are there means available to the Board to provide a similar level of service at a lower cost?
As to the case at hand, the Association refers to the Town’s own projections that its population in 1995-96 will be 9600-9700 residents. Moreover, because of the location of the Town, its amenities and the visitors that they attract, the Association asserts that the Service actually polices a population of approximately 35,000.
Statistics provided to us indicate that Smiths Falls has one of the highest crime rates per capita not only in Ontario, but in all of Canada. They suggest that the rates are in fact 50% higher than the next highest in Ontario for similar sized communities and more than 250% higher than the rates of both the majority of similar size communities in Ontario and the
averages for these communities in terms of incidents per capita.
We were advised that this level of crime has been historical and is unlikely to significantly improve in the foreseeable future. The Association referred us to numerous reports and calls from various sources for an increase in the number of members available to the Service to improve its ability to cope with this higher than average crime rate. No workload or deployment study was provided to us or appears to have been undertaken in the past several years notwithstanding this constant claim of lack of resources available to respond to the community's needs.
The Association presented us with further statistics as to the number of hours of overtime worked by the members of the Service (up to 292 average overtime hours per member in
1993 and projected to be 103 in 1995). They invited us to accept this as an indication of the problem (i.e. if the Service had the necessary number of personnel, its members would not be called upon to perform overtime at the unacceptable levels recorded). In fact we were advised that for some members the number of overtime hours exceeded 500 hours per year. To provide some perspective, we were advised that the collective agreement provides that one year of work for an officer amounts to approximately 2000 hours.
The Association emphasizes that this overtime is largely involuntary. When officers are called for duty, they are not permitted to refuse the order. They argue that this leads to stress, exhaustion and increased illness and injuries on the job. The Association alluded to a
23% rate of family breakdown within the Service when prior to 1990 it was almost non- existent.
The Association placed the blame for one 38-year old constable's heart attack (stated to be in perfect health, with no family history of heart problems nor did he smoke or drink and exercised regularly) on work place stress stemming from his voluntarily taking on the coordination of intelligence information regarding the drug trade in the community in addition to his regular duties.
The Association points to the fact that notwithstanding the hiring of two additional officers in 1995, the public, as we heard from some citizens at the hearing, remains concerned about the Service’s patrols and visibility, ability to answer calls of crimes in progress, such as vandalism, and to provide community policing.
The Association has also raised the fact that the Perth Jail and Smiths Falls Court have been closed. It asserts that this will only increase the demand on officers' time. It notes that while two of the members, formerly absent, have returned to duty, they have been restricted to non-operational responsibilities.
The Association referred to a recent costing by the OPP for the Town of Fort Frances
(similar in size) which concluded that 24 uniform officers would be required for a stand alone detachment.
The Board's Position:
The Board argues that the termination in question is essentially the conclusion of a temporary hiring meant to deal with a short-term staffing shortfall. As a result, it suggests that any termination of such an employee will not result in a reduction in complement.
The Board responds that historically the Service has had fewer members notwithstanding that its population has remained stable and the community experiences consistently higher crime rates. Numerous reports and reviewers have not stated that the Service was inadequate or ineffective.
Although it has been recommended that criminal investigator and court officer positions be created and have not been provided for to date, the Service now has two members performing these functions. The two officers are on modified duties and although the Board acknowledges that they are not available for operational duties, they maintain that since these two officers perform these functions on a full-time basis, this relieves other members from these functions and makes them available for operational matters.
With these two members and without the replacement constable, the total staffing levels of all platoons will remain at 15, as it has been traditionally. The Board also points to the fact that although crime rates have been historically high, these have been decreasing in 1993 (by
12%) and 1994 (by 15%) and the Service has enjoyed a high clearance ratio for all crimes. The Service’s response time average, today as before, is less than 5 minutes.
Compared to other Ontario municipalities of similar size, the Service is second in terms of its size on a per capita basis. As well, the OPP police the surrounding municipalities.
The Board noted in response to the Association's reference to this Commission's Budget Appeal decision concerning the Town of Goderich that it has more members, has already acquired the OMPPAC data system, has acquired new semi-automatic handguns for its members and trained them in their use.
Smiths Falls has redeployed a relatively new administrative vehicle to patrol duty, giving its Chief and Deputy Chief car allowances instead of a vehicle and traveling costs and concerns regarding transporting Smiths Falls prisoners are being addressed by a contract with the OPP instead of using its own officers. Smiths Falls has established a working group to integrate some aspects of its operation with neighbouring Perth and Carleton Place in an effort to cost share services, group purchasing and criminal investigation. The Board noted that unlike Goderich, Smiths Falls employs two full-time staff for meter and other parking enforcement and a further by-law officer for municipal by-law enforcement.
As to health problems, the Board advised that although the constable in question's doctor attributed his heart condition to workplace stress, the Workers’ Compensation Board, on the advice of its own physicians, has rejected this claim as unfounded. Consequently, they assert that the true cause of his condition is at best the subject of professional disagreement.
The Board elaborated on the significance of the overtime statistics provided to ensure that it be recognized that overtime claimed is not equivalent to overtime worked. As an example, it cited that an officer who attends an after-hours meeting or is called to the office to complete a task, is contractually entitled to 4 hours overtime pay, though the actual work time may be less than an hour. No evidence was provided to us to appreciate the effect of this contractual factor on the amount of time claimed in the statistics.
The Board points to other factors which caused the overtime spike in 1991 to 1993, including the suspension of one member under investigation, workers’ compensation absences particularly by two members, the Chambers Street fire, the Bellingham and 5 other murder investigations. These factors have been resolved. The Board notes that its 1994 overtime costs of $132,047.40 have been significantly reduced to $52,315.54 as of September 30th, 1995 and even projecting to year end, they are estimating costs in the order of only $70,000.00.
The Board denies that training has been curtailed because of staff shortages. All but 3 of its officers have completed the Advance Patrol Officer training course at the Ontario Police College and those who have not, have received alternate formal training in courses which have broadened the skills of the Service. They assert that training is sometimes cancelled at the request of officers or because the course no longer fits with the training objectives of the Service when it is available. All members have been trained on the use of the new semi- automatic handguns. Each member, uniform and civilian, receives a full day of C.P.R. training annually and the Board assists with fees for related post-secondary courses taken by staff. In-service training is conducted with other forces and with the Crown Attorney’s Office. The Board boasts its officers are so well trained that they often play a lead role in assisting other forces in Lanark County with their training objectives.
The Board alleges that its Service is involved in many community based initiatives and programs to assist the public, develop better relations and reduce crime in the future.
The Board denies that the Smiths Falls Court has been closed. Only the weekly first appearance hearings and some trials have been moved to Perth, which is only 15 miles away. The difference is said to be only 15 minutes of travelling time and only affects the day shift when the Chief or Deputy Chief are available to provide backup.
The Board asserts that its Service is adequate and effective and will remain so even with the termination of this one officer. It defends its decision to reduce its budget request to the Town in compliance with guidelines issued by the Municipal Council. It dismisses the proposition that by doing so the Service would fall below what is adequate for Smiths Falls. It characterizing the difference of opinion not as a question of adequacy but rather as one concerning the enhancement of service.
The Board notes the Chief’s comments at the hearing and emphasizes that his background, which includes a degree in Sociology, 4 years with the Metropolitan Toronto Police and a number of years with 2 other municipal police services, gives him a very broad basis on which to judge what is at issue. They refer to his answer to our question regarding his impression of his Service’s adequacy, which he answered by indicating that he and the Deputy Chief leave management and administrative duties to respond to patrol officers' calls and that his Service is principally reactive and patrol oriented. Despite this, he asserted that “the job gets done... regardless of how many people we have hired” to the credit of his members who take the workload assigned to them.
The Chief has publicly stated that in 1995 the Service will regress unfortunately into a selective response mode which will not allow for the addressing of the community needs. The Board notes that although a Selective Response Plan has been prepared, it has not been implemented, although many other forces in the province have done so for a variety of reasons.
In summary, the Board submits that the conditions which existed to necessitate the hiring of a replacement constable have been resolved, its service is adequate and effective even if it is principally reactive and patrol oriented and that enhancement to the service is a matter of choice for the Board and not the Commission. The Board wishes to pursue its choice of terminating this officer as it has done in the past to provide for temporary complement needs.
Other Submissions:
At the hearing we heard from various members of the community, including Mr. Doug Walton on behalf of the Smiths Falls Chamber of Commerce, Mr. Hugh Cubitt a retiree, Mr. Jack Rabb on behalf of the Royal Canadian Legion, Branch 95, Constable Mark Laplante a
19-year member of the Service, Constable William Lamove, Mr. Marvin
Bule a taxpayer, Mr. Len Johnson a taxpayer, Constable Pat Dowling, Mrs. Diane Small a dispatcher with the Service, Mr. Richard St-Pierre an advisor with the Ministry and the Chief.
They raised concerns regarding the disappearance of foot patrols, the pressures on the officers and the demands on their life styles, lack of response to vandalism in progress calls, lack of visibility, the frustration the officers experience because of the workload and lack of
support or time to conduct investigations, calls for assistance outside of town limits in serious situations, scarcity of officers available from time to time to respond. The advisor from the Ministry did not express an opinion as to whether the Service’s complement was adequate. He did indicate, however, that the 1994 complement was minimally adequate and that the reduction of this one officer would create some hardships.
The Chief advised that he is trying to comply with the requirements of the Act, but is challenged by the present difficult economic times. The Chief praised his members for the work they did and indicated that he was concerned about "burn outs". He believes the Service should be proactive and not only reactive and that the infrastructure is being downgraded.
Decision:
The offer of employment of the constable in question confirms his full-time Fourth Class Constable status, his commencement date, his probationary period, and his obligation to complete the Basic Constable program of the Ontario Police College. No mention of any temporary nature to his employment or any reference to a purpose for his employment -i.e. the replacement of permanent personnel on indefinite work absences.
We were not provided with any other documentation between the parties. However we were advised that the candidates were told of their temporary nature of their assignments during the interview process. No written agreement was produced; or, apparently sought from the Association regarding their approval of this measure to temporarily fill the absences. We were referred to minutes which could be evidence of many interpretations.
In this instance we find it impossible to deal with the matter as a temporary replacement of personnel to which section 40 would not apply. The written offer of employment does not establish support for such an argument. On the face of it, the officer in question is a full- time permanent employee. We acknowledge that the Chief acted on advice not to mention same, but find it inconceivable that a Board would proceed on this basis without clearly setting out the nature of the employment relationship in the contractual agreement with the member, and obtaining a written Letter of Understanding with the Association, as it had set out in it own minutes.
We therefore proceed with this matter as a section 40 application for which we are required to ensure that the provisions of the Act are complied with prior to our granting our consent. The legislative test is found in section 4 of the Act, being the provision of an adequate and effective police service in accordance with the municipality’s needs.
The Association has presented a strong case for the necessity to keep this officer and the Board has presented good arguments in support of its position that the Service is adequate and effective. However, we are left with an uncertainty as to the claims of adequacy.
Although the Service has historically been and presently is larger than others in similar size municipalities, it unfortunately suffers, deservedly or not, from the highest crime rates for comparable municipalities in Ontario and Canada.
We were provided with statistics for 1992 and 1993 which show that Smiths Falls endured the worst crime rates per officer in Canada. In 1992, there were 144 Criminal Code offences for each of its 17 officers compared to the average of 67 for 33 other communities. In 1993
Smiths Falls recorded 125 Criminal Code offences per officer as compared to an average of
62 in other municipalities. When you consider that Smiths Falls has one of the highest number of officers of any comparable service, these statistics are more troublesome. This statistic would seem more relevant to us in determining the workload of the officers than the number of officers per capita.
We cannot help but believe this has something to do with the nature of the policing delivered to the municipality. By this, we do not intend to criticize the officers who deliver this service, in fact everyone appeared to unanimously agree that the officers were doing a tremendous effort notwithstanding the resources they had to work with. It is often the case that in a municipality which has administrative, resource or other problems, that street policing does not appear to suffer in the publics' eyes because of the devotion and commitment of the Service’s officers. This effort on their part and level of on street service should not be viewed as justification not to address potential problems which do or could eventually impact that service. Once the impact is felt by the public, it is often too late.
We would have been greatly assisted in this matter if there had been a workload and deployment study provided to us. This is not to say that one is required for every section 40 proceeding, however, because of the historically high crime statistics, the level of overtime recorded by the members, the concerns we heard from citizens and the continuing reliance on overtime to make ends meet, we find it difficult on the evidence before us to assess whether or not the Service is adequate and effective in accordance with the municipality’s needs.
The Board has boasted of its Service's high clearance rates to minimize its high crime rates. Although very impressive, we do not believe that high clearance rates are the true test of a successful police service, rather the low rate of crime would indicate to us a more effective police service. We believe that this is a tenant of community policing, the more proactive the police service is in the community the lower the crime rate. This of course is not easy to measure, given the difficulty of determining the amount of crime not taking place because of the Service’s efforts. However, this is one of the attitude adjustments demanded in community policing.
One of the elements for examination is the community's perception of the quality and needs for policing in Smiths Falls. It is worthwhile to note the results of a l993 survey on Police Service Safety. In general the survey respondents indicated that:
(a) 5l% believed their neighbourhood had a below average amount of crime.
(b) 55% believed that crime had increased in Smiths Falls and area over the years. (c) 42% would say there are too few police in their neighbourhoods.
(d) 66% would like to see more enforcement in their community.
(e) Over 82% would like to see more foot patrols and police visibility.
(f) Over 7l% would like to see more traffic law enforcement and spot checks for impaired driving.
This would appear to support the notion that the majority of members of the public in Smiths Falls recognize the need for maintaining policing services and in many areas would like to see enhanced levels of service.
Decisions to reduce the size of any police service concerns us greatly and this application has caused us to seriously reflect on the arguments, counter-arguments and evidence. We are always conscious that our judgements bear an economic consequence for the communities concerned, however, the Act requires us to place the safety and well being of the community first.
Having considered the facts and submissions presented to us, we are left with unresolved concerns about the overall adequacy and effectiveness of police services in Smiths Falls. This is based primarily on the Chief's assessment, the high crime rate, the highly reactive nature of the Service, the views expressed by members of the community and the lack of a workload and deployment study. If the Police Services Board wants to terminate a front line officer under these conditions, the onus must surely be on them to demonstrate that their actions will not further exacerbate the situation and impair the Service's ability to provide adequate policing.
The Commission does not believe this onus on the part of the Police Services Board has been met and as such we must deny permission to the Board to terminate the constable's employment.
We extend our apologies to the residents of Smiths Falls for the delay in rendering this decision. At the conclusion of the hearing, the parties requested additional time to compile and submit further material for our consideration. We believed this was appropriate and that we had provided for the timely delivery of the material. Unfortunately, this material was delayed.
DATED THIS DAY OF DECEMBER, 1995.
Diana A. Jardine, Member
Raymond G. Leclair, Member per Murray W. Chitra, Chair