Gulliver v. Brantford Police Service, 1997 CanLII 22037

Background:

2. David Gulliver is a first class constable with twelve years employment with the Brantford Police Service.

3. On November 22, 1995 he was off-duty. He had arranged to have some minor electrical repairs done on his home by a contractor. While this work was being performed Constable Gulliver was away from his residence helping a friend move. He had "a couple of drinks".

4. When he arrived home, he was not able to locate two rings which he remembered as being on a dresser in the bedroom. He concluded that they had been stolen by the contractor.

5. Constable Gulliver arranged with a neighbour to call the contractor and ask him to come to the neighbour's home that evening to do emergency electrical repairs. No such repairs were required. Constable Gulliver then called the Brantford police station and spoke to the duty officer - Staff Sergeant Glen White.

6. He told Staff Sergeant White he believed two rings had been stolen from his residence by a tradesman. He went on to say that the tradesman was going to be coming to see a neighbour and he intended to be there to get the rings back.

7. Constable Gulliver also advised the Staff Sergeant that he was going to "razz this guy", "confront him", "kick the living fucking shit out of him" and to "tell the guys to take it easy on me, if I'm in the cell…" He refused the Staff Sergeant's offer to dispatch a patrol car to help sort the matter out.

8. The contractor arrived at the neighbour's home later that evening. Constable Gulliver was there. He accused him of theft, punched him in the head and kicked him approximately ten times on the left side of his legs and buttocks. The contractor asked Constable Gulliver to call the police to let them investigate the matter. Constable Gulliver insisted that either the rings be returned or he receive payment for their value (approximately $1,100) by the following day.

9. The contractor left the scene and reported what happened to him to a friend. This friend contacted the Brantford Police Service. The investigating officer who responded that same evening noted red marks under the contractor's left eye, on his left upper cheek bone, left leg and knee, as well as his left side and scratches to the middle of his body.

10. Shortly after these events, Constable Gulliver found the two rings behind the dresser in the bedroom.

11. Constable Gulliver was arrested and charged with both Level 1 assault (section 266 of the Criminal Code) and threatening bodily harm (section 264.1 of the Criminal Code). He apologized in writing to his victim and started attending counselling with a therapist arranged through the Employee Assistance Program of the Brantford Police Service.

12. On May 28, 1996 he pled guilty to both criminal charges. He received fines and surcharges totalling $4,600 and two years probation.

13. On June 11, 1996 Constable Gulliver was served notice by the Brantford Police Service that he faced disciplinary action in the form of two allegations of discreditable conduct contrary to section 1(a) (vii) of the Code of Conduct contained at R.R.O. 1990, Regulation 927 as amended (the "Code"). That section provides that an officer commits discreditable conduct, if he or she "is guilty of an indictable offence or an offence punishable upon summary conviction under the Criminal Code".

14. Constable Gulliver was also advised in writing that if allegations against him were proved on clear and convincing evidence that demotion or dismissal could be imposed as a penalty.

The Hearing:

15. Constable Gulliver appeared before Superintendent Terence Kelly (the "Hearing Officer") on July 22, 1996.

16. He pled guilty to both disciplinary charges. An agreed statement of facts was read into the record. The Hearing Officer was also provided with a number of exhibits including the pre-sentence report prepared for Constable Gulliver's criminal proceedings, the reasons for sentence, a copy of his apology to his victim, a report from his therapist and his complete personnel file.

17. Constable Gulliver testified. As well, the Hearing Officer heard from his platoon Sergeant , a senior dispatcher, and the Inspector - Operations. They all spoke to Constable Gulliver's work performance.

18. The Hearing Officer received oral submissions and adjourned the proceedings until July 25, 1996 for sentencing. On that date he directed that Constable Gulliver resign within seven days or be summarily dismissed.

19. This penalty of dismissal was upheld in a subsequent decision of the Brantford Police Services Board dated October 28, 1996. It is this penalty which is the subject of the appeal.

Appellant's Argument:

20. The Appellant presents 14 grounds of appeal. Essentially, it is argued that the Hearing Officer and the Board did not properly consider various aspects of the evidence or take into account a number of mitigating factors. These include the officer’s consumption of alcohol in the evening in question, his acceptance of counselling, his excellent work record, the impact of various stresses on the officer’s life at the time of the incident, his remorse and acceptance of responsibility, and the forgiveness of the victim.

21. In support of the assertion that the penalty in this case is excessive, the Appellant cites: Norton and Ontario Provincial Police (1994), 2 O.P.R. 988 (OCCPS), Ciotka and Ontario Provincial Police (1994), 2 O.P.R. 984 (OCCPS), Konkle and Niagara Regional Police Service (1992), 2 O.P.R. 927 (OCCPS), Dempsey and Waterloo Regional Police Service (1991), 2 O.P.R. 909 (OCCPS), Boshold and Ontario Provincial Police (1986), 2 O.P.R. 694 (OPC), Schofield and Metropolitan Toronto Police (1984), 2 O.P.R. 613 (OPC), Anderson and Metropolitan Toronto Police (1974), 1 O.P.R. 255 (OPC) and Lamont and Ontario Provincial Police (1982), 2 O.P.R. 573 (OPC).

22. The Respondent argues that Constable Gulliver’s actions were so serious that they warranted the penalty of dismissal. Mr. Sheppard asserts that the Appellant’s service record is a secondary consideration given the nature of his actions. The Respondent also argues that the officer's trust has been destroyed, his continued presence would only harm the image and reputation of the Brantford Police Force and therefore his usefulness to the service at an end. Mr. Sheppard concludes by stating that both the Hearing Officer and Board made no error in principle and exercised their discretion reasonably.

Respondent's Argument:

23. In support of these arguments the Respondent cites: Williams and Ontario Provincial Police (OCCPS, December 4, 1995), Nothing and Ontario Provincial Police (OCCPS, March 15, 1996) and Hind and Ontario Provincial Police (1990), 2 O.P.R. 880 (OPC).

24. In support of these arguments the Respondent cites: Williams and Ontario Provincial Police (OCCPS, December 4, 1995), Nothing and Ontario Provincial Police (OCCPS, March 15, 1996) and Hind and Ontario Provincial Police (1990), 2 O.P.R. 880 (OPC).

Decision:

25. The facts in this case are not in dispute. Guilt is not an issue. The only question is penalty

26. Police officers, whether on or off duty, should not be threatening harm to others or engaging in assaultive behaviour. Such action is discreditable conduct and warrants discipline. That being said, in each case, the appropriate penalty must be determined in light of a number of considerations.

27. In the normal course of events we are reluctant to interfere with the judgement of a Hearing Officer with respect to penalty. However, it is essential that any such decision reflect the relevant considerations.

28. The key concern expressed by the Appellant in this case is that the Hearing Officer did not properly take into account key aspects going to mitigation. In light of the reasons provided, it is difficult to assess precisely what weight such considerations received.

29. As the Commission recently noted in Reilly and Brockville Police Service (OCCPS, May 12, 1997) there are also other factors which can be relevant, either mitigating or aggravating the penalty depending on the particular misconduct in question. These include the officer’s:

• employment history and experience,

• recognition of the seriousness of the transgression,

• handicap or other relevant personal circumstances

30. Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach to the misconduct in question. Finally, to ensure both fairness and consistency, it is important that any penalty imposed reflect other disciplinary cases dealing with similar types of misconduct. These cases must be viewed in light of the fact that the Commission has not been mandated to increase penalties.

31. The type of conduct in question is clearly unacceptable, serious and needs to be deterred. Constable Gulliver, believing that he was the victim of a theft, planned and executed an assault. He took the law into his own hands.

32. The criminal trial judge described Constable Gulliver’s behaviour as “outrageous, bullying and the exact opposite of what we know to be the usual scrupulous behaviour of each member of our police force”. He further characterised the assault as “every citizen’s nightmare”. It is fortunate that the victim in this case was only bruised, scratched and frightened and not seriously injured.

33. We have no hesitation in stating that in the absence of substantial mitigating factors, such conduct warrants termination.

34. At the time of this event, Constable Gulliver had ten years experience with the Brantford Police Service. His work record was unblemished. It contains no complaints or any prior disciplinary actions.

35. His platoon Sergeant described him as a dependable officer with an average or slightly above average work record. He stated that he was not aware of Constable Gulliver ever acting in a violent manner and indicated that the events in question were out of character. He concluded that he did not believe that such conduct was likely to be repeated and that he had no reservations about Constable Gulliver’s ability to carry out his duties and responsibilities as a police officer.

36. Constable Gulliver’s Inspector expressed similar views. In particular, he described Constable Gulliver as “a good common-sense officer”. He further indicated that in his view “this one incident was certainly isolated and I certainly do not expect it to ever occur again”.

37. There is some suggestion that Constable Gulliver's judgement on the evening in question was impaired by the consumption of alcohol and the impact of personal problems and work related stress (i.e. exposure to a prisoner with AIDS).

38. Constable Gulliver undertook counselling through the Employee Assistance Program of the Brantford Police Service. Psychometric testing indicated that he was moderately depressed with a borderline alcohol problem. While this might in some measure explain his behaviour, it cannot excuse it. Further, these problems do not appear to have been of such a nature so as to constitute either a disability or handicap.

39. Like Constable Gulliver’s platoon Sergeant and Inspector, his therapist concluded that the assault was atypical of the officer and unlikely to be repeated. He specifically wrote that “I do not believe that Mr. Gulliver poses any threat to the safety of other citizens. I believe he is capable of resuming his duties as a police officer and performing those duties in a capable, professional manner.”

40. To his credit, Constable Gulliver has assumed responsibility for his actions. Shortly after the event he provided his victim with an unqualified written apology. This apology has been accepted and the victim has indicated that he has no fear concerning future encounters with the officer.

41. Constable Gulliver pled guilty in criminal court. He did not dispute the allegations against him. He accepted responsibility for his conduct. Constable Gulliver pled guilty to the disciplinary charges against him. He did not dispute the allegations against him. Again, he accepted responsibility for his conduct.

42. Provocation is not a factor in this case. Neither is management’s approach to this incident, which to our mind has been both correct and proper.

43. A number of cases have been brought to our attention for comparative purposes. Those dealing with disciplinary actions arising from assaults by police officers were not very helpful. For example, Ciotka and OPP, Boshold and OPP, and Anderson and Metropolitan Toronto Police dealt with off-duty fights in bars or restaurants.

44. Dempsey and Waterloo Regional Police Service concerned the use of loud and profane language and the pushing of a Sergeant. Konkle and Niagara Regional Police Service involved excessive use of force disciplining a twelve year old son. Schofield and Metropolitan Toronto Police Force dealt with the use of excessive force in the arrest of a shoplifter.

45. None of these appear to correspond with the unusual facts of this case.

46. We have reviewed the decision of the Hearing Officer and Board in light of the above. While we acknowledge that the events in this case are serious and have affected the reputation of the Brantford Police Service there are also a number of relevant mitigating factors which, taken together, are significant.

47. The officer in question has a lengthy unblemished good service record. He has no reputation for aggressive conduct. His supervisors view this as an isolated incident which they do not see as likely to re-occur. They have no reservations about his ability to continue his duties. The officer sought counselling, tendered an unqualified apology to his victim, and accepted responsibility for his actions in both criminal and disciplinary proceedings. His victim has forgiven him.

48. It is our view that these cumulative factors did not receive sufficient consideration by the Hearing Officer or Board. In light of these factors we do not feel that the officer’s usefulness to the service is over. We wish to indicate however, that absent any one of them, our conclusion would have been different.

49. Accordingly, we vary Constable Gulliver’s penalty of dismissal to demotion to fourth class constable for one year. Thereafter, his progress through the ranks will be determined according to the usual policies and procedures of the Brantford Police Service.

50. We urge Constable Gulliver to continue to take advantage of the Employee Assistance Program.

DATED THE 15TH DAY OF JULY, 1997.

Murray Chitra Raymond G. Leclair Chair, OCCPS Member, OCCPS