Constable W.G. McNab v. Ontario Provincial Police, 1997 CanLII 22036

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE W.G. McNAB

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Karlene J. Hussey, Member Raymond J. Silenzi, Member

Hearing Date: Wednesday, April 2, 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: Karlene J. Hussey, Member Raymond J. Silenzi, Member

Appearances: Ms. Heather Hutchison, Counsel for the Appellant Inspectors Michael Shard and Susan Dunn, Counsel for the Respondent

Hearing Date: Wednesday, April 2, 1997

1. This is an appeal from a conviction of discreditable conduct made against Provincial Constable W.G. McNab contrary to section 1(a)(i) of the Code of Conduct contained in Regulation 927 R.R.O. 1990 as amended. Constable McNab also appeals the penalty of dismissal imposed by Hearing Officer Superintendent L. McClenny on July 3, 1996.

Background:

2. Constable McNab became a member of the Ontario Provincial Police in 1990 and was assigned to the Downsview Detachment.

3. On the afternoon of Saturday, October 29, 1994, he received a telephone call at home from Constable Brian Fischer, a friend and co-worker at Downsview. At the time Constable McNab was on sick leave having been advised by his doctor to take some time off.

4. Constable Fischer asked Constable McNab if he was available to help BL, a member of the public, the following day. He provided BL’s address. However, beyond that there was little discussion as to the nature of the work.

5. Constable McNab had never met BL, but in the past had spoken to him on the telephone and knew his daughter. As well, BL was a friend of his roommate Constable Chris Lewis, who was also a member of the Downsview detachment.

6. The following morning Constable McNab drove to Newmarket, approximately 45 minutes from his home, to see BL at 8:00 a.m. Constable McNab testified that BL told him that he was helping a mayoral candidate in the upcoming municipal elections and needed assistance with driving and looking after his dogs.

7. Constable McNab drove BL to deliver brochures and speak with a number of people, including Ms. P (the mayoral candidate). At some time during the course of the evening BL mentioned payment, but Constable McNab told him that it was unnecessary. Constable McNab left for home at approximately 11:00 p.m. with no further plans to meet with BL.

8. The following day, Constable McNab received a call from BL who asked him to attend an all-candidates meeting on Tuesday, November 1. He did and after the meeting agreed to stay overnight and continue to help BL the following day handing out brochures and erecting signs for Ms. P’s election campaign.

9. That Tuesday night BL again discussed payment with Constable McNab. Initially Constable McNab protested that it was unnecessary. However, he testified that because he was unsure of the arrangements Brian Fischer had made with BL, he eventually accepted a cheque for $532.50.

10. Constable McNab continued his involvement with BL and Ms. P on November 2 and 3. He drove while they campaigned, handed out brochures or had meetings. He looked after BL’s dogs and helped with the silk-screening process for the signs. BL requested his help for November 4, but because of a previous commitment to attend court Constable McNab asked another co-worker, Constable Pinhero, to substitute for him.

11. While at Court, Constable McNab received a telephone call from Constable Pinhero who expressed concern over BL’s state of mind. Constable Pinhero described BL as paranoid and confused. Constable McNab arrived at BL’s home at approximately 2:00 p.m. Constable Pinhero and Ms. P were present.

12. Constable McNab noticed that BL was behaving strangely. He had his curtains drawn and he was expressing fear that the Durham Police were trying to kill him. BL repeated this concern to a number of people in telephone conversations. Constable Pinhero, Ms. P and Constable McNab also overheard BL saying that he had hired OPP officers to protect him.

13. Constable McNab testified that this was the first time he became aware of BL’s concern with the Durham Police and his belief that off-duty OPP officers were protecting him.

14. BL spoke by telephone to Detective Inspector Van Allan of the Ontario Provincial Police and repeated his assertion that the Durham Police were trying to kill him. At BL’s insistence Constable McNab had a short conversation with Detective Inspector Van Allen in which he expressed the view that the situation was different from the way BL described it. He handed back the telephone to BL who continued his discussion with the Detective Inspector for over an hour. Afterwards BL reported that an OPP officer was being sent to investigate.

15. Later that evening when Constable McNab returned to his home, he received a call from his detachment commander Staff Sergeant Mikstas who questioned him about his involvement with BL. In response to those questions, Constable McNab told Staff Sergeant Mikstas that he was helping BL to look after his dogs. Staff Sergeant Mikstas directed Constable McNab to have no further contact with BL.

16. Shortly thereafter, BL was involved in an incident which resulted in his admission to a mental institution.

17. On November 9, Constable McNab deposited to his account the cheque for $532.50, which BL had given to him on November 2.

The Hearing:

18. On March 10, 1995 Constable McNab was charged with discreditable conduct. The particulars of the allegations were that:

Between October 30 and November 3, 1994, while off duty, you acted as escort for BL. BL believed that he would be harassed by Durham Regional Police and paid you to be present and act as witness to any such harassment.

19. He appeared before Hearing Officer Superintendent L. McClenny and on June 10, 1996 was convicted as charged. Superintendent McClenny rendered his decision of guilt without reasons and invited submissions with respect to penalty. There was a 15-minute break in the proceedings. During this time a discussion took place between the Hearing Officer and Prosecutor Inspector Michael Shard.

20. Upon reconvening, Inspector Shard for the record, advised the Hearing Officer of the OPP’s requirement that he provide reasons for his decision. Specifically, Inspector Shard requested an outline of findings with respect to both the facts and credibility, how they were reached, and any conclusions concerning the knowledge and intent of Constable McNab.

21. At this point, Ms. Hutchison, Counsel for Constable McNab, noted that there had been an off-the-record discussion between the Hearing Officer and Inspector Shard during the break. The Hearing Officer confirmed that there was a discussion off record but that the discussion was substantially what Inspector Shard had repeated upon resumption.

22. Ms. Hutchison reiterated the need for reasons and stated that it would be helpful to have such reasons prior to submissions on penalty.

23. Both Counsel agreed to an oral outline of the reasons which the Hearing Officer provided. After the penalty submissions the hearing was adjourned until July 3, 1996. On that day Superintendent McClenny imposed the penalty of dismissal on Police Constable W.G. McNab.

Appellant’s Arguments:

24. In her submission on behalf of the Appellant, Ms. Hutchison requested that the Commission set aside the decision made by the Hearing Officer and reverse the finding of discreditable conduct. Her submissions were as follows:

25. The off-the-record meeting was improper and in contravention of section 60(8) of the Police Services Act, R.S.O. 1990, c. P.15 as amended. It undermined procedural fairness and created a reasonable apprehension of bias. There is no necessity to prove actual bias; it is sufficient that there is an appearance that public confidence is undermined. In support she cites Dulmage v. Ontario (Police Complaints Commissioner) (1994), 1994 CanLII 8773 (ON CTGDDC), 21 O.R. (3d) 356 (Div. Ct.).

26. The Hearing Officer did not provide sufficient reasons. There were no findings of credibility, which was of particular importance in this case, and no explanation for his findings. The Hearing Officer merely summarized the testimony of the witnesses. She noted that in Duriancik v. Ontario (Attorney General) (1994), 1994 CanLII 10970 (ON CTGDDC), 114 D.L.R. (4th) 504 (Div. Ct.) the court found this approach to be insufficient to support a conviction.

27. There was not clear and convincing evidence presented at the hearing sufficient to convict the Appellant.

28. The Hearing Officer improperly applied the principles of progressive discipline by taking into account the subsequent work record of the Appellant, which included a subsequent conviction under the Act and informal discipline.

29. The penalty of dismissal is harsh and excessive particularly when compared to the penalty of loss of 15 days’ time received by another officer who was similarly charged.

The Respondent’s Arguments:

25. In response, Counsel for the Respondent stated that:

26. The discussion, which took place off-the-record, was not about substance but about procedure. The onus is on the Appellant to show bias and the Appellant has not met the test for such matters set out in Committee for Justice v. National Energy Board (1980), 68 D.L.R. (3d) 733 (S.C.C.).

27. The Hearing Officer made no reviewable error in assessing the facts and that the Appellant’s conduct regardless of his intent was likely to bring discredit to the reputation of the OPP. In making this determination the Officer’s conduct must be measured by a higher standard than that of the ordinary citizen. Trumbley and Flemming (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2nd) 570 (C.A.) at p. 590.

28. The onus is on the Appellant to ensure that he avoids any situation that involves a potential conflict of interest which contravenes section 49(1) of the Police Services Act and the Conflict of Interest and Secondary Employment Policy of the OPP.

29. The factual findings of the Hearing Officer should not be disturbed unless they are self evidently wrong or contain clear error such that they are void of evidentiary foundation. This is especially important in this case where the factual findings are largely dependent on the assessment of credibility. Also, the determination as to whether the OPP was likely to be discredited should be treated as a factual finding because the Hearing Officer has the advantage of being closest to the fact as a senior police officer and has expertise in the issues facing a Police Service.

30. The Hearing Officer should not be held to the normal standard for written decisions as Counsel for the Appellant agreed that an oral outline would be sufficient. Specifically,

(a) Section 4(1) of the Statutory Powers Procedure Act, R.S.O. 1990,

c. S.22 provides that any procedural requirement under which a proceeding arises may be waived with the consent of the parties and the tribunal.

(b) The Hearing Officer need not review every issue but must simply state some of the reasons why he rejected one witness’s evidence in favour of another. Duriancik (1994), 1994 CanLII 10970 (ON CTGDDC), 114 D.L.R. (4th) 504 (Ont. Div. Ct.).

6.The Hearing Officer was correct in taking into account the prior matters, which had resulted in formal and informal discipline as the underlying facts did precede the matter in question.

Decision:

30. The Appeal raises four important issues. These include the off record discussion, the sufficiency of the Hearing Officer’s reasons, whether there was clear and convincing evidence and the nature of the penalty.

Off Record Discussion:

31. Normally, it is inappropriate for a Hearing Officer and one of the parties, particularly the prosecutor, to converse in the absence of opposing counsel. It is of utmost importance for the employer, acting as both prosecutor and decision-maker, to be completely transparent and to dispel any misgivings that the process is not entirely fair. In addition to the impact on the fairness of the proceedings this may also constitute a violation of section 60(8) of the Police Services Act. The section provides:

(8) The person conducting the hearing shall not communicate directly or indirectly in relation to the subject-matter of the hearing with any person or person’s counsel or representative, unless the police officer and the prosecutor receive notice and have an opportunity to participate.

32. We were provided with an affidavit of Inspector Shard in which he describes this discussion. Essentially, he reminded the Hearing Officer of the need to provide reasons for his decision. Specifically, he advised that:

... It is the practise of the OPP to give written reasons for a decision ... I recall Superintendent McLenny appearing surprised and then apologizing. I believe his exact words were “I am sorry, we don’t do that at York Region” ...

33. This would appear to correspond with the remarks placed on the record following the break.

34. Based on the uncontested evidence presented in the Affidavit of Inspector Shard and the comments made by Superintendent McLenny on record, we find that the discussion related to a procedural matter, that is, to the production of reasons for the Hearing Officer’s decision, and not to the subject-matter of the hearing. This discussion was immediately revealed and placed on record. While the conversation may have been imprudent we find that the discussion was not a violation of section 60(8) of the Police Services Act.

35. The Commission does not accept the Appellant’s position that the discussion gave rise to a reasonable apprehension of bias. We agree that the findings in Dulmage are pertinent to this matter in that “a high standard of justice is relevant when the right to continue one’s profession or employment is at stake”. However, the apprehension of bias must be reasonable and we are of the view that a reasonable person would not conclude that the Hearing Officer would fail to be impartial as a result of the exchange which took place between himself and Inspector Shard.

Sufficiency of Reasons:

36. We have examined the reasons given by the Hearing Officer and have found them to be deficient. We are unable to determine with any certainty why the Hearing Officer reached his conclusions. In his reasons Superintendent McClenny simply recounted the evidence of the witnesses that appeared before him. He failed to state why he concluded from the evidence that Constable McNab had the knowledge or intent to act as an escort for BL. Similarly, we are not able to ascertain what if any determination the Hearing Officer made with respect to credibility.

37. At a minimum reasons should include a statement of:

• the allegation against the officer;

• the material facts and law relied on;

• the conclusion and reasoning upon which it was made.

38. This should occur in each case.

39. The Respondent argues that the Hearing Officer should not be held to the normal standard of a written decision because both Counsel agreed that an oral outline would be sufficient. We might have accepted this argument had the Hearing Officer provided the minimum reasons, which were requested by Inspector Shard.

40. The impact of this decision on the officer’s continued employment is very serious and in our view, we should not be compelled to read between the lines to try to determine why the Hearing Officer concluded that Constable McNab was guilty of the offence as charged.

41. In the circumstances it is open to us to direct a new trial but after careful examination of the record we are of the opinion that very little would be gained by doing so. The incident in question occurred in the fall of 1994 and a new hearing would serve little purpose in clarifying the facts and would defeat one of the important functions of administrative tribunals which is to deal with disciplinary matters expeditiously.

42. If we thought that the case turned solely on the credibility of the witnesses then we certainly would have ordered a new hearing. Instead, we are of the opinion that we can reach our own conclusion clearly supported by the facts on record which are not in dispute. We find support for this approach in Stitt and York Regional Police (February 28, 1997, OCCPS).

Clear and Convincing Evidence:

44. Our review of the evidence on record establishes that Constable McNab was aware of the conflict of interest guidelines of the OPP and the necessity to avoid situations where there is a conflict of interest or perception of such a conflict.

45. Section 49 of the Police Services Act, provides:

(1) A member of a police force shall not engage in any activity,

(a) that interferes with or influences adversely the performance of his or her duties as a member of a police force, or is likely to do so;

(b) that places him or her in a position of conflict of interest, or likely to do so;

(c) that would otherwise constitute full-time employment for another person; or

(d) which he or she has an advantage derived from employment as a member of a police force.

(2) Clause 1

(d) does not prohibit a member of a police force from performing in a private capacity, services that have been arranged through the police force.

(3) A member of a police force who proposes to undertake an activity that may contravene subsection (1) or who becomes aware that an activity that he or she has already undertaken may do so shall disclose full particulars of the situation to the chief of police.

46. Both the guidelines and the Act specifically forbid any police officer from engaging in certain activities unless permitted. This is called “paid duty”. The Act also places the onus upon the officer to disclose any potential contravention.

47. While it may be argued that at the beginning he was unaware of the terms of his engagement with BL, when Constable McNab accepted a cheque on November 2nd it became secondary employment subject to the Police Services Act and the OPP guidelines. Having accepted payment, it was incumbent on Constable McNab to clarify the terms and conditions of his engagement and the nature of the work to be performed to ensure that there were no potential conflicts.

48. It is without dispute that Constable McNab did not seek either clarification or permission for this secondary employment. It is also without dispute that he did not disclose to Staff Sergeant Mikstas the extent of his involvement and the fact that he had received payment for that work.

49. Leaving this aside, it is clear that Constable Fischer, Ms. P and BL all understood that Constable McNab had been retained as an escort. It is difficult to accept the notion that everyone understood this except Constable McNab.

50. Given the above, we find that there is sufficient evidence on the record for the Hearing Officer to have concluded that Constable McNab’s overall conduct was discreditable.

51. We are also troubled by the knowledge that Constable McNab deposited the cheque on November 9th following his discussion with Staff Sergeant Mikstas knowing that BL was mentally unstable. By taking advantage of the situation and a person whom he described as “sick” Constable McNab brought further discredit to his office as a member of the Ontario Provincial Police. It is precisely such a person as BL that a police officer should be expected to protect.

Penalty:

52. Counsel for the Respondent submitted that dismissal is the appropriate penalty and supported this position by examining the career profile of Constable McNab. This record reveals that the performance appraisals between 1990 and 1994 were above average. These reviews described an officer who is intelligent, self-motivating, confident, stable and mature with good listening skills, competent and dependable.

53. Since December 1994, however, Constable McNab has been convicted of discreditable conduct for the following:

(a)Constable McNab made false declarations to the Ministry of Transportation Vehicle License Renewal form in 1993 and 1994. For each of these offences a penalty loss of 5 days’ pay was assessed.

(b)March 1994, Constable McNab was an occupant in a vehicle that was stopped by a Police Officer for speeding. He identified himself as a Police Officer and made comments, which he knew, or ought to have known might influence the Police Officer not to issue a ticket. Constable McNab was also assessed a loss of 5 days’ pay for this offence.

54. These convictions were subsequently confirmed on appeal to this Commission.

55. As well, in December 1994 an informal discipline entry was placed on his record for failing to terminate a high-speed pursuit in accordance with the instructions of a superior officer. For this he forfeited 24 hours of overtime.

56. Counsel for the Appellant argues that Constable McNab had not been subject to any formal disciplinary proceedings prior to the incident under consideration, and thus the principle of progressive discipline does not apply in this case.

57. Counsel for the Respondent argues that although this is not a case of progressive discipline this incident cannot be looked at in isolation when at least three of the matters, for which Constable McNab was subsequently charged, occurred prior to the incident involving BL. It is suggested that he has discredited the force repeatedly and any penalty must deter him from bringing further discredit to the OPP.

58. Given the sequence of events it is our assessment that this charge must be viewed as the first in the series of disciplinary infractions and not as some form of culminating incident.

59. The purpose of dismissing an employee, including a police officer, is to “rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee” Trumbley v. Metropolitan Toronto Police (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 at 589, per Morden, J.A. The test of dismissal under the Police Services Act is that articulated by this Commission in Marsden and Metropolitan Toronto Police (unreported, 14 April 1994, at p. 5): an officer’s usefulness as a police officer must be annulled. This test can be met as a result of a serious disciplinary history (see Morden and Peel Regional Police (29 November 1996), or as a result of an isolated but very serious incident of misconduct (see Williams and Ontario Provincial Police (4 December 1995)).

60. While we believe that a substantial penalty is warranted to reflect the seriousness of the offence, we believe dismissal is excessive. We find that by his actions Constable McNab has demonstrated disregard for the rules and exercised poor judgment. He either knew or was deliberately blind to the terms and conditions of his secondary employment. He failed to report a potential conflict. He took advantage of a person with a mental illness and was not forthcoming when called upon to explain his actions.

61. The discipline imposed must reflect the gravity of these actions and therefore we alter the penalty to a reduction in rank to Third Class Constable for a minimum of one year. At the end of that period, Constable McNab’s progression through the ranks shall be in accordance with the usual practices of the OPP.

62. Were this matter the latest of Constable McNab’s disciplinary infractions rather than the first, we would have supported the original penalty.

Summary of Decision:

63. We uphold the finding that Constable McNab is guilty of discreditable conduct, but reduce the penalty of dismissal to demotion to Third Class Constable for a minimum of one year, with any subsequent promotions being subject to normal practices.

DATED THIS 28th DAY OF OCTOBER 1997.

Karlene J. Hussey Raymond J. Silenzi Member, OCCPS Member, OCCPS