ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE GRAHAM BETTES
Appellant
-and-
PEEL REGIONAL POLICE SERVICE
Respondent
DECISION
Panel: Murray W. Chitra, Chair Karlene J. Hussey, Member
Hearing Date: November 29, 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: Murray W. Chitra, Chair Karlene J. Hussey, Member
Appearances: Bruce R. Shilton, Counsel for Constable Bettes Paul S. Jarvis, Counsel, Regional Municipality of Peel Police Services Board Inspector Bert Johnson, Peel Regional Police Service
Hearing Date: November 29, 1995
1This is an appeal under the Police Services Act R.S.O. 1990, c. P.15 (the "Act") of a finding of Neglect of Duty against Constable Graham Bettes. In addition, it is an appeal against the disciplinary penalty imposed.
Background:
2The facts giving rise to the disciplinary action against Constable Bettes are largely without dispute.
3He joined the Peel Regional Police Service (the "Service") in December of 1990. On January 31, 1993 he was a Third Class Constable assigned to 11 Division. On that particular day, at about 3:40 p.m., he was dispatched to an accident scene at Mississauga Road and Erin Mills Parkway. At the time he had no partner. This was the fourth or fifth accident investigation of his career.
4Constable Bettes arrived at the scene at 3:45 p.m. He discovered a car off the side of the road partially lodged in a culvert. A tow truck was already on the scene. The driver of the vehicle was Ms. B.1 She did not appear injured. Constable Bettes estimated the damage to her vehicle to be about $3,000.
5With Ms. B's consent the vehicle was towed to a car dealership about 150 metres down the road. Constable Bettes asked a number of questions of Ms. B. She advised him that she had been stopped on Mississauga Road because of traffic. The left rear corner of her car had been struck by another vehicle. That vehicle had left the scene.
6Ms. B provided Constable Bettes with the name of a witness to the accident and the license number of the vehicle which left the scene. Constable Bettes did a computer check on both Ms. B and a search of the license number of the departed car.
7It turned out that Ms. B had a number of outstanding fines and her license was suspended. Constable Bettes completed the necessary forms and served her with a Notice of Suspension. The license plate search disclosed a vehicle owner and address in Mississauga.
8Constable Bettes drove directly to the address in question. He spoke to a middle-aged man who acknowledged he was the owner of the vehicle in question. However, he advised Constable Bettes that the car was normally driven by his son (Mr. A).
9The owner contacted his son by cellular phone. He relayed to Constable Bettes that his son was driving to 11 Division to report the accident. Constable Bettes asked that the son return home and meet him at a school which was located just down the street.
10Mr. A arrived 10 to 15 minutes later in another vehicle. He was both cooperative and apologetic. He acknowledged that he had panicked and left the scene. He stated that once he had regained his composure he was determined that he would return to Mississauga Road. He had done so, but there were no accident vehicles at that spot. As a result, he decided to go to the local police station to report the incident. He stated that he left his father's car at a friend's house. He estimated the damage to the vehicle to be approximately $1,000.
11Constable Bettes accepted this explanation. He cautioned Mr. A for leaving the scene of the accident and charged him with "following too close". After this was concluded, Mr. A expressed his relief with the outcome. He mentioned his concern with the impact of any serious charge on his employment as a civilian member of the Metropolitan Toronto Police Service.
12While Constable Bettes was speaking to Mr. A, a passing cruiser driven by Constable John Piper pulled up. After Mr. A left, both Constables Bettes and Piper discussed the accident. Shortly after their discussion they went their separate ways.
13Over the next few days Constable Bettes completed various forms and reports. These included a Fail to Remain Occurrence Report, Motor Vehicle Accident Report and Prosecution Sheet. He received a telephone call from Ms. B asking about the status of his investigation. A few weeks later he attempted to speak to the witness whose name had been provided. She was not home at the time.
14Towards the middle of March, Ms. B was directed by a family acquaintance to Detective F. Slinger of the Public Complaint Investigation Bureau of the Service. A statement was subsequently provided expressing a number of concerns. There is a dispute between the parties as to the nature of these concerns.
15One result was that Constable Jamie Porter of the Special Accident Investigation Bureau was assigned to reinvestigate the events of January 31. In April of 1993, Mr. A was charged with the additional offence of "failure to remain".
16On May 18, 1993 Constable Bettes was charged with Neglect of Duty, contrary to subsection 1(c)(i) of the Code of Conduct contained at R.R.O. 1990, Reg. 927 (the "Code"). That provision states that a "police officer commits an offence against discipline if he or she ... without lawful excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force".
17Notice of Hearing under Part V of the Act was served on Constable Bettes on May 19, 1993. It contained particulars of the allegation against him. In part, it stated:
Constable Graham Bettes #1740, was ... dispatched to investigate a Fail to Remain motor vehicle accident...
Subsequent to Constable Bettes' investigation of this matter, Ms. B filed a public complaint against Constable Bettes for his handling of this occurrence. As a result of Ms. B's complaint, the Special Accident Investigation Bureau reinvestigated this matter and as a result, Mr. A is now charged with fail to Remain, pursuant to Section 200(1)(a) of the Highway Traffic Act.
A review of the investigation conducted by the Special Accident Investigation Bureau has determined that Constable Bettes did not conduct a proper investigation and also did not take the appropriate action dictated by the circumstances of this accident and therefore neglected his duty.
18At the same time Constable Bettes was provided with his Notice of Hearing, he was also served with Notice under subsection 61(4) of the Act. It advised him that "the penalty of dismissal or demotion may be imposed if the misconduct with which you are charged is proven on clear and convincing evidence".
19The disciplinary hearing commenced on October 13, 1993. The Adjudicator was Superintendent Dan Banting. The Prosecuting Officer was Inspector Bert Johnson. Constable Bettes was represented by Mr. Bruce Shilton.
20At that time, Mr. Shilton brought a preliminary motion to quash the Notice of Hearing. He argued that the essence of the proceedings was a "public complaint" that must be dealt with under Part VI of the Act (as opposed to Part V). The Motion was denied. However, the second last paragraph of the above-noted Statement of Particulars was struck by the Adjudicator.
21The disciplinary hearing continued on April 14 and 15, 1994. The allegations of Neglect of Duty against Constable Bettes had a number of elements. In summary, the prosecutor either suggested or stated that Constable Bettes:
did not immediately advise the dispatcher of the description of Mr. A's vehicle provided to him by Ms. B at the scene of the accident as required by section B(2)(c) of the Service's Procedure for 'Fail to Remain' and 'Fail to Report' Collisions;
seriously underestimated the damage to Ms. B's car and failed to examine the vehicle driven by Mr. A. It subsequently turned out that the damage to both vehicles was in the range of $7,000 each;
failed "to account for, and interview all involved persons and witnesses" as required by subsection C(1)(d) of the Service's Procedure for Motor Vehicle Collisions;
failed to provide complete and accurate reports (i.e. the Motor Vehicle Accident Report did not identify Mr. A's employer or the name of the potential witness);
did not conclude his investigation in a timely manner.
22The suggestion being made was that if Constable Bettes had done a proper and complete investigation, he would have charged Mr. A with more than merely "following too close". Further, it was stated that if Constable Bettes was unclear or unsure about how to proceed that he should have contacted his Sergeant for advice and direction before he took any action rather than mentioning the matter in passing to Constable Piper.
23On May 4, 1994 Constable Bettes was found guilty and a penalty of forfeiture of 5 day's pay was imposed.
24Constable Bettes appealed this decision to the Regional Municipality of Peel Police Services Board (the "Board") pursuant to subsection 63(1) of the Act. This appeal was heard on September 26, 1994. The appeal panel consisted of Mr. Emile Kolb, Ms. Mary Nnolim, Ms. Pat Mullin and Mayor Peter Robertson.
25At the time of the appeal Mr. Shilton brought a preliminary motion requesting that Ms. Nnolim be removed from the panel on the basis of reasonable apprehension of bias. The motion was denied and the appeal proceeded. By way of written decision dated September 30, 1994 the conviction was upheld. However, the penalty was reduced from 5 to 3 day's forfeiture of pay.
26The suggestion being made was that if Constable Bettes had done a proper and complete investigation, he would have charged Mr. A with more than merely "following too close". Further, it was stated that if Constable Bettes was unclear or unsure about how to proceed that he should have contacted his Sergeant for advice and direction before he took any action rather than mentioning the matter in passing to Constable Piper.
27On May 4, 1994 Constable Bettes was found guilty and a penalty of forfeiture of 5 day's pay was imposed.
28Constable Bettes appealed this decision to the Regional Municipality of Peel Police Services Board (the "Board") pursuant to subsection 63(1) of the Act. This appeal was heard on September 26, 1994. The appeal panel consisted of Mr. Emile Kolb, Ms. Mary Nnolim, Ms. Pat Mullin and Mayor Peter Robertson.
29At the time of the appeal Mr. Shilton brought a preliminary motion requesting that Ms. Nnolim be removed from the panel on the basis of reasonable apprehension of bias. The motion was denied and the appeal proceeded. By way of written decision dated September 30, 1994 the conviction was upheld. However, the penalty was reduced from 5 to 3 day's forfeiture of pay.
30Constable Bettes appealed the decision of the Board to the Ontario Civilian Commission on Police Services (the "Commission") on October 13, 1994. This appeal was brought pursuant to subsection 63(8) of the Act and is the subject of this decision.
Preliminary Motion:
31At the commencement of the appeal Mr. Shilton brought a prelimary motion on behalf of Constable Bettes.
32He argued that the Board is not a proper party to these proceedings and that we should not take into account any material submitted on their behalf by Mr. Jarvis.
33Under Part V of the Act, the primary responsibility for the discipline of police officers clearly rests with the Chief of Police. It is the Chief, or his or her designate who:
investigates apparent or alleged misconduct - subsection 58(1);
may suspend an officer suspected of misconduct - section 71;
determines whether a disciplinary hearing is necessary or whether a less formal process is warranted - subsection 59(1);
appoints the prosecutor for any disciplinary hearing - subsection 60(2);
conducts the hearing - subsection 60(1);
imposes penalty if misconduct is established - subsection 61(1).
34Indeed, subsections 41(b) and (d) of the Act impose on the Chief a legal duty to maintain the discipline of the force and ensure that such discipline is administered in accordance with Part V.
35The role of the Board under Part V is essentially appellate. Subsection 63(1) permits a police officer to appeal any disciplinary decision to the Board. Unless the Board waives its jurisdiction to the Commission under section 64, it must hear the matter on the record. Under subsection 63(4) of the Act the Board must provide written reason for any decision to both the officer and Chief. The officer has a further right of appeal to the Commission under subsection 63(8). Notice to the Commission, Chief and Board is required.
36Certain aspects of this scheme seem evident. First, the Board is not clearly identified in either the Act or regulations as a party in the appeal by a police officer to the Commission. This is in stark contrast to the situation which existed prior to 1990. Subsection 24(8) of R.R.O. 1980, Reg. 791 provided that:
24(8) At the hearing of the appeal, the appellant, the chief of police and the board or committee of council, as the case may be, are entitled to appear and be represented by counsel or agent and to present their argument.
37Such a provision no longer exists.
38The Act does appear to recognize party status to the Board in disciplinary matters involving the Chief. Specifically, subsection 62(1) imposes on the Board the obligation to conduct disciplinary hearings when the conduct of a Chief is at issue. Section 67 of the Act essentially provides that any of the requirements that apply to the Chief in routine appeals by officers would apply to the Board. In other words, the Board is a proper party to any appeal by a Chief of a disciplinary decision to the Commission.
39Given the above, it seems evident to us that the current legislative scheme does not contemplate party status for Boards at disciplinary appeals to the Commission by police officers. Indeed, such status would appear to us to be in consistent with the Board's appellate mandate.
40By this we do not mean to suggest that there could not be circumstances where an appeal to the Commission might raise a sufficiently important or unique issue that might warrant some form of limited intervenor status for a Board. This is not the situation here.
41Accordingly, we will not take into account any of the written or oral submissions made by the Board.
Issues Under Appeal:
42Constable Bettes seeks to challenge the decision of the Board dated September 30, 1994.
43Mr. Shilton submits the following grounds of appeal:
44That the Board of Commissioners erred in failing to find that there was an apprehension of bias on the part of Board member Mary Nnolim and further that the Board erred in proceeding to hear the appeal in those circumstances.
That the Board erred in failing to find that there was no jurisdiction to hear the matter under Part V of the Police Services Act initially.
That the Board erred in failing to find that the finding of guilt was unreasonable.
45As well, Mr. Shilton takes issue with the penalty imposed.
Apprehension of Bias:
46Mr. Shilton submits that it was improper for Ms. Nnolim to participate in the deliberations of the Board. He argues that her presence on the panel gave rise to a reasonable apprehension of bias and that any decision of the Board must be suspect.
47The basis for this submission is twofold. The first relates to comments made by Ms. Nnolim to a reporter for the Toronto Star which appeared in an article in that newspaper dated September 12, 1991. These remarks had to do with police officers not telling the truth. The second matter relates to a letter of support written by Ms. Nnolim dated February 22, 1994 to the lawyer of a man facing criminal charges, who is publicly known for his criticism of police practises.
48The first issue is familiar to the Commission. These remarks were the subject of an Inquiry held by the Commission under section 25 of the Act in 1991. After extensively reviewing the remarks and the circumstances under which they were made, the panel found that the comments did not constitute misconduct or suggest that Ms. Nnolin was failing to perform her duties. In its decision dated June 3, 1992, the Commission concluded by saying that "We are satisfied that Mary Nnolim can be a valuable asset to the Peel Police Services Board". As noted earlier, the duties of Board members include hearing disciplinary appeals.
49We have reviewed Ms. Nnolim's correspondence of February 22, 1994. It is a very brief letter indicating Ms. Nnolim's respect for the individual in question and her appreciation for support that he provided her as a teenager. It does not mention any police officer, the police generally or endorse any of the views expressed by the individual with respect to the police. The suggestion that appears to being made is that this letter of personal support to a third party, on a matter totally unrelated to the incident in question, should give rise to concern that Ms. Nnolim in some fashion endorses certain unspecified views of that individual.
50Given the Commission's decision of June 3, 1992 and the remoteness of the letter of February 22, 1994 from any of the events at issue, we are hard pressed to see any reasonable person would have cause for a reasonable apprehension of bias on the part of Ms. Nnolim.
51Accordingly, it is our view that the Board's determination on this point is proper.
Public Complaint:
52Mr. Shilton argues that the foundation of the disciplinary proceedings against Constable Bettes is a "public complaint". He notes that this was acknowledged in the original Statement of Particulars served on Constable Bettes. He points out that section 75 of the Act states that "Complaints by members of the public about the conduct of police officers shall be dealt with in accordance with this Part".
53The latter reference is to Part VI or the Public Complaints section of the Act. This establishes a detailed procedure for the management, monitoring, hearing and appeal of disciplinary matters arising from such matters.
54The disciplinary proceedings against Constable Bettes took place under Part V of the Act. This section deals with internal disciplinary concerns.
55The question to be asked is whether or not Constable Bettes was the subject of a "public complaint". Unfortunately, the Act does not define what constitutes a "public complaint" and there is little precedent to assist in such a determination. Any judgement, therefore, must be made on the basis of the facts.
56As noted earlier, evidence presented at the disciplinary proceedings disclosed that Ms. B was directed to Detective Slinger of the Public Complaint Investigation Bureau by a family friend. Detective Slinger met with Ms. B and took a statement. This meeting was described by Detective Slinger as follows:
On Thursday, March 25, 1993 MS. B attended my office and gave a statement outlining the occurrence. She did not wish to make a complaint, she only wished to have the incident documented for future reference; in case MR. A applied to become a police officer. She indicated to me that she felt Constable BETTES was very nice to her throughout their contacts.
MS. B gave no indication that she had a problem or a complaint with Constable BETTES; the focus of the conversation was pertaining to MR. A. I conducted no investigation into the matter as it was not a Public Complaint, and subsequently forwarded Ms. B's statement through my chain of command to be dealt with by Mr. A's supervisor.2
57Clearly, Detective Slinger saw the complaint in question, as one against Mr. A, rather than Constable Bettes.
58This position was also reflected in the response of Ms. B to questions posed at the disciplinary proceedings. Part of her testimony read:
Q. What were you concerned about? What was the nature of your complaint?
A. My complaint was not with the officer at all. My complaint was the fact that he never got charged for whatever reason because he left the scene, he left me in the ditch, I wasn't pleased about it, my parents even more so. They were kind of the acting force behind the complaint and they said, "You know, it's not right. Go see why", and I did just, yeah, why he wasn't charged.
Q. So you weren't complaining about the officer as much as why wasn't the...
A. Just more of the system...
Q. ...other driver charged?
A. ....the more the system, exactly.3
59This matter was pursued at great length. However, given the above and our review of the complete transcript, it is difficult to conclude that Ms. B's concerns represented a complaint by a member of the public about the conduct of a police officer, within the meaning of section 75 of the Act.
60We agree with the conclusion of the Adjudicator and Board that the disciplinary proceeding against Constable Bettes was properly brought under Part V.
Finding of Guilt:
61Mr. Shilton takes issue with a number of the findings of fact made at the hearing. He argues that certain evidence should have been given greater weight. As well, he asserts that it is easy to find fault with any one aspect of an investigation, yet still conclude that the task was performed adequately in the overall sense. This he argues, is the case here.
62In the normal course of events, it is the Adjudicator who has the benefit of seeing witnesses, hearing their testimony and assessing its weight or value. It is not our role, or that of the Board to substitute our opinion unless the interpretation of the evidence is self-evidently wrong or there is clear error. The question to be asked is whether or not the conclusions of the Hearing Officer are without evidentiary foundation.
63The answer in this case must be no. At a minimum, Constable Bettes did not follow certain prescribed procedures (i.e. contact the dispatcher and interview all persons involved in the accident). As well, there are grounds to conclude that his reporting was less than complete and, in certain respects, inaccurate.
64That being said, it was open to the Hearing Officer to conclude that there was neglect or omission to "promptly perform a duty as a member of the police force" within the meaning of the Code.
Penalty:
65That leaves remaining, the issue of penalty. In many respects, this is the most troubling aspect of this case.
66The Adjudicator assessed Constable Bettes a penalty of forfeiture of five day's pay. Mr. Shilton submits that this appears to be based on the number of days that it took for the prosecution to prove its case. While we find no clear support for this assertion, we feel obliged to note that such a practise would be unacceptable.
67Further, it is evident that Constable Bettes was a junior, relatively new officer working on his own. In fact, he had only been working without a coach officer for a short time. He had no prior disciplinary record. This was only his fourth or fifth accident investigation.
68To use the full weight of the disciplinary process in such a situation (including formal notice of potential dismissal) seems rather harsh and unnecessary. Even a reduced penalty of three days, does not in our opinion, accord with principles of progressive discipline.
69It is unfortunate that this matter was not dealt with by way of counselling or perhaps an admonishment under the less formal provisions of section 59 of the Act.
70For these reasons we reduce the penalty from three days to a reprimand.
DATED THIS 6th DAY OF FEBRUARY, 1996.
Murray W. Chitra, Chair
Karlene J. Hussey, Member
per Murray W. Chitra, Chair