Provincial Constable G.S. Betts v. Ontario Provincial Police, 1997 CanLII 22035

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

PROVINCIAL CONSTABLE G.S. BETTS

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Karl R. Fuller, Member Bob Saracino, Member

Hearing Date: March 7, 1997

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:

Karl R. Fuller, Member Bob Saracino, Member

Appearances:

W. Michael Temple, Q.C., Counsel for the Appellant

Inspector Michael Shard, Professional Standards Branch, Ontario Provincial Police

Hearing Date: March 7, 1997

Background:

1. This is an appeal under the Police Services Act, R.S.O. 1990, c. P.15 as amended (the "Act") from a penalty of demotion from Constable First Class to Constable Second Class for a minimum period of one year imposed by Superintendent R.J. Fitches (the "Hearing Officer"). This penalty followed findings of guilt on two counts of Neglect of Duty and one count of Deceit contrary to the Code of Conduct contained at R.R.O. 1990, Regulation 927 as amended (the "Code").

2. The specific allegations against Constable Betts as reflected on the Notices of Hearings were as follows:

1. Neglect of Duty1

On January 30, 1994, while on duty, he attended the scene of a car fire near Ford Drive and the Q.E.W. He failed to perform a proper investigation and failed to record the appropriate details in relation to that matter.

3. On January 30, 1994, during work hours, he visited at the Identification Unit at District Headquarters without obtaining approval or informing his Supervisor and without sufficient cause. He was aware of a written order which requires officers to obtain permission to visit District Headquarters.

4. On January 30, 1994, he failed to properly advise the dispatcher and/or Supervisor of his location and duty status.

2. Neglect of Duty2

5. On April 5, 1994, he was scheduled to work the 0600-1800 hours shift at Burlington Detachment. He worked only from 0600-0900 hours that day and failed to make the appropriate records necessary to properly report and account for the absence.

6. On June 16, 1994, he was scheduled to work the 0700-1900 hours shift at Burlington Detachment. He worked only from 0700-1300 hours that day, and failed to make the appropriate records necessary to properly report and account for the absence.

3. Deceit3

7. On September 5, 1994, he was scheduled to take the day as a statutory holiday, at Burlington Detachment. He submitted a form deducting the required hours from his statutory holiday bank, but it was discovered later that he did not have sufficient time off in his bank. When the deficiency was pointed out, he arranged for a doctor's note that indicated he was sick on that day.

8. Also relevant to the case is the fact that Constable Betts' personal record discloses a series of job performance deficits commencing in February 1989 and up to June 1994.

The Appellant's Position:

9. Mr. Temple, representing the Appellant argued that the sentence of demotion to Constable Second Class for a minimum of one year was harsh and excessive, and that an appropriate penalty would be a total of 15 days loss of time. In support of his argument, he submitted the following mitigating circumstances:

a) The Appellant had entered guilty pleas to some of the previous charges.

b) The Appellant had agreed to the facts that were placed before the Hearing Officer on the present charges.

c) Although the Appellant's standard of conduct had been unacceptable, the charges individually in themselves were not of an overly serious nature.

d) The Appellant had been involved in an on-duty fairly serious motor vehicle accident that occurred in December, 1989 which resulted in his being absent from work for a period in excess of a year and nearly all of his discipline problems had arisen since the accident.

e) The financial loss of demotion would be approximately $5,500.

f) The Appellant had submitted himself to an in-depth examination by Dr. Travis, a consulting psychologist, and had consented to the filing of his report.

g) The Appellant had indicated a willingness to submit to the counselling recommended by Dr. Travis.

The Respondent's Position:

10. In reply to the submission by Mr. Temple, Inspector Shard stated that the Hearing Officer is in the best place to determine penalty, and that the penalty should not be disturbed except where there exists a manifest error in principle, or where the conclusion with respect to penalty are decidedly unfair.

11. With respect to the first count of Neglect of Duty he notes that the Appellant had been spoken to directly by an Inspector to the effect that it was inadvisable to attend at the District Headquarters without permission, and further, that a written order was issued as a result of this practice. As well, he points out that both the Deceit and the April 5 and June 16 Neglect of Duty allegations occurred while the Appellant was under investigation in relation to the January 30 Neglect of Duty allegation and he was aware of the investigation.

12. Further, he draws our attention to Constable Betts' disciplinary history. A summary of Constable Betts prior infractions are as follows:

13. In February of 1989, he was censured for losing his composure, and failing to investigate an accident in the proper manner. He accepted informal discipline.

14. In February of 1990, he pled guilty and was convicted formally of Neglect of Duty, and penalized one day time off for failing to conduct a proper accident investigation on August 4, 1989, including failure to properly complete his paperwork.

15. In June of 1991, he accepted informal discipline and was required to work 10 additional hours, for failing to attend court.

16. In November of 1992, he pled not guilty, but was subsequently convicted of Discreditable Conduct, and penalized two days pay, for swearing and hitting the windshield of a member of the public.

17. In November of 1992, he pled guilty and was convicted of Neglect of Duty, and penalized 20 hours time off, for failing to appear in court.

18. In January of 1993, he had his designation of "Senior Constable" removed as a result of being on "Special Review".

Decision:

13. It is clear that the Appellant does not dispute the facts in the case, nor the finding of guilt. This appeal relates to the penalty imposed upon him of demotion to Constable Second Class for a minimum period of one year. On Constable Betts' behalf, Mr. Temple argued that the penalty was harsh and excessive and that a penalty of 15 days forfeiture should be substituted for the penalty imposed by the Hearing Officer.

14. In arriving at a decision concerning the adequacy of a penalty imposed, the Appellant's employment record is a central issue. Constable Betts' performance record undoubtedly has blemishes that are well beyond what would be normally expected of an officer with 21 years of service. We agree that the charges individually in themselves were not of an overly serious nature, yet the repeated infractions would suggest that the officer has failed to contemplate the professional requirements of his job as it relates to conduct.

15. It is noted, as well, that the on the job motor vehicle accident in which Constable Betts was involved may have brought about continuing physical stress. On page 10 of the consulting psychologist's report, we note as follows:

Although Constable Betts healed as well as can be expected from the significant soft-tissue injuries sustained in the on-duty motor vehicle accident of several years ago, he is left with significant residual pain and discomfort.

Although Constable Betts healed as well as can be expected from the significant soft-tissue injuries sustained in the on-duty motor vehicle accident of several years ago, he is left with significant residual pain and discomfort.

16. Despite these considerations, Constable Betts' repeated disregard for the professional standards of his employment needs to be addressed. A further observation from the psychologist's report (page 11) is noted:

Constable Betts states that he enjoys performing his uniformed patrol duties. He clearly recognizes that his continued employability with the O.P.P. is in jeopardy. He also acknowledges that he must take active steps to shift his life into more progressive footing and to perform his duties in a more consistent, well-disciplined manner, if he is to be salvaged as a professional O.P.P. Constable.

17. While the psychologist's report may in some measure explain Constable Betts' behaviour it does not excuse it, nor does it in the circumstances, reveal anything to support a lesser penalty.

18. It is evident to us that for a considerable period of time he has consistently failed to perform his duties in a satisfactory manner. Disciplinary action is warranted. The penalty imposed in this case would appear to be within the acceptable range.

19. It is our hope that Constable Betts will avail himself of any professional development opportunity that may be available in order to enhance his suitability for reinstatement to the position of Constable First Class at the end of a period of one year.

20. We dismiss the appeal of the penalty imposed.

DATED THIS 19TH DAY OF JUNE 1997.

Karl R. Fuller Bob Saracino Member, OCCPS Member, OCCPS