ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE BRENT STITT

Appellant

-and-

YORK REGIONAL POLICE SERVICE

Respondent

DECISION

Panel: Raymond G. Leclair, Member Dean E. Peachey, Member

Hearing Date: July 8, 1996

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:

Raymond G. Leclair, Member

Dean E. Peachey, Member

Appearances:

Ian J. Roland, Counsel for the Appellant Phyllis L. Carlyle, Counsel for the Respondent

Hearing Date: July 8, 1996

Facts:

1. This is an appeal with respect to two findings of Neglect of Duty and one of Deceit made against Constable Brent Stitt. In addition, it is an appeal against thBackground:

2. On January 31, 1994 Constable Brent Stitt was charged with two counts of Neglect of Duty, contrary to sections 1(c)(i) and 1(c)(ii) of the Code of Conduct contained at R.R.O. 1990, Reg. 927 (the "Code").

3. The specific provisions provide that:

"1. Any Chief of Police or other police officer commits an offence against discipline if he or she is guilty of ... (c) NEGLECT OF DUTY, that is to say, if he or she,e disciplinary penalties imposed.

(i) without lawful excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force …

(ii) idles or gossips while on duty"

4. The particulars of these allegations refer to an incident which took place in the Town of Keswick on Friday, December 24, 1993. They assert that Constable Stitt was "idle on duty” to wit; "sleeping" and "failed to respond to RM’s1 request for assistance at a break in ..."

5. The third count was an allegation of Deceit contrary to section 1(d)(ii) of the Code. That section states that:

"1. Any Chief of Police or other police officer commits an offence against discipline if he or she is guilty of ... (d) DECEIT, that is to say, if he or she ...

(ii) wilfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties ..."

6. The particulars referred to a report submitted by Constable Stitt on January 2, 1994 describing the events of Friday, December 24, 1993.

7. On January 23, 1995 following four days of hearings, Constable Stitt was found guilty of all three counts by Adjudicator Superintendent Craine of the York Regional Police Service.

8. On May 1, 1995 Suprintendent Craine imposed the following penalties:

1.Neglect of Duty (idle while on duty) - forfeiture of 8 hours pay; and

2.Neglect of Duty (failure to respond) - reduction in rank from First Class Constable to Second Class Constable for a minimum of one year; and

3.Deceit - forfeiture of 40 hours pay.

9. Constable Stitt appealed all convictions and the relevant disposition to the York Regional Police Services Board.

10. On June 21, 1995 the Board met and on the application of the officer agreed to forward the appeal to the Commission pursuant to section 64 of the Police Services Act, R.S.O. 1990, Chap. c.P. 15 as amended (the "Act").

11. The Appeal was argued on the following five bases:

1. The Hearing Officer erred in failing to apply the appropriate standard of proof with respect to the contradictory versions of fact in the case.

2. The Hearing Officer erred by failing to properly provide reasons for his findings on the issue of credibility.

3. The Hearing Officer failed to determine what part of the compulsory statement of Constable Stitt was "false" in relation to the allegations of misconduct.

4. The Hearing Officer erred in imposing a penalty of reduction of rank for an indefinite period that is left to the discretion of the Chief, rather than specifying a fixed period of time for the reduction.

5. The penalty given is too severe in the circumstances.

Decision:

12. We will address each of these submissions in turn.

13. First, the Appellant argued that in a situation

where there are contradictions in testimony, the benefit of the doubt should be given to the officer. The Appellant argued that a trier of fact must ask whether an accused person's explanation might reasonably be true.

14. Further, the Appellant presented extensive arguments that the Presiding Officer failed to provide adequate reasons for his findings. The Appellant cited McGuire and Royal College of Dental Surgeons of Ontario (1991), 1991 CanLII 8372 (ON CTGDDC), 77 D.L.R. (4th) 732 where the Court stated, "A recital that the evidence has been considered, without any statement as to specifically what evidence the board accepted or rejected, is but a rote assertion, deserving of little weight" (p. 745). The Appellant pointed out that the Hearing Officer's decision did not refer to specific evidence, nor did it attempt to deal with any inconsistencies in testimony. The Appellant argued that a Hearing Officer has an obligation to set out the basis on which a finding is made, to the extent to which a decision hinges on the credibility of testimony and has an obligation to clearly state reasons for believing or disbelieving testimony citing, Gulf Sea Products Ltd. V. National Sea Products Ltd. (1985), 1985 CanLII 5162 (PE SCAD), 56 Nfld. & P.E.I.R. 343 at 347 (P.E.I.C.A.) and Bluenose Fisheries Limited v. Tabusintac Fish Market Ltd. (1987), 77 .B.R. (2d) 285 at 289 (N.B.C.A.) and Pitts and Director of Family Benefits Branch (1985), 1985 CanLII 2053 (ON HCJ), 51 O.R. (2d) 302 at 311-315 (Ont. Div. Ct.).

15. The Respondent replied that administrative tribunal officers are selected for their substantive expertise rather than legal expertise and noted that the courts have acknowledged different standards for tribunals in writing reasons for decisions, citing Kahn v. College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3rd) 641. The Respondent’s argument appears to miss the central point in this case, where the court found that the role played by the disciplinary committee's lawyers in drafting reasons for decision was appropriate. It would appear to be precisely because of the court's concern for clear and adequate reasons, that the court was prepared to recognize circumstances in which the decision-maker might receive assistance in writing reasons for decisions.

16. The Respondent also cited McGuire, which stated that the court should not be overly critical of the language employed by disciplinary bodies and "seize on a few words as being destructive of the entire disciplinary process" (p. 737). The view was previously stated in Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 19 D.L.R. (4th), 68. In our view, however, the arguments of the Appellant in the case before us do not hinge on drafting or language of the decision, but rather on whether an officer is provided with a clear set of findings and reasons for those findings. Our concern here is not on how precisely reasons are drafted, but rather on whether any reasons are given that would constitute a basic level of procedural fairness.

17. The Respondent also argued that the Hearing Officer stated the witnesses for the prosecution were "not moved in cross-examination" which serves as an explanation of how he arrived at his determination of credibility.

18. In our view, the Hearing Officer's statement of reasons in his decision is less than satisfactory. They are brief to the point of curtness. The decision itself makes minimal reference to evidence presented in four days of hearings and does not provide a clear description of the basis on which the Hearing Officer arrived at his decision. The Hearing Officer simply states unequivocally that he is convinced on the basis of the evidence, without describing how or why the evidence convinces him. As well, there is no reference to the notion that the evidence met the standard of being "clear and convincing ".

19. In a situation such as this, one course of action would be to order a new disciplinary hearing. Certainly, if the matter hinged solely upon the credibility of witnesses, that would be our only option. If, however, the matter can be determined on the basis of evidence already on record, then this tribunal should do so and thus avoid further expenditures of time and money on the part of the individuals concerned and the public. Therefore, we turn our attention to the evidence contained in the transcript of the disciplinary hearing.

20. Constable Stitt agreed that he was in a marked police cruiser behind the convenience store at approximately 6:00 a.m. on the date in question. In a memo of January 2, 1994, written in response to a public complaint, Constable Stitt stated that he made a quick visual check of the Simcoe Mews Plaza, then entered information on his Mobile Data Terminal screen for an out of service request to fuel his vehicle. His memo further stated that he was in the plaza parking lot for approximately thirty seconds.

21. The computerized out of service request was logged at 6:03 a.m.

22. At the disciplinary hearing, Constable Stitt stated that he was parked behind the convenience store for perhaps three or four minutes while he entered the out of service request and organized his briefcase and personal effects in preparation for going off shift. He testified that no one walked past him and he did not talk with anyone while he was parked there.

23. Constable Stitt also indicated both in his memo of January 2, 1994 and in his testimony at the hearing, that immediately prior to entering the parking lot behind the convenience store, he had been parked in a nearby parking lot where he was observing a pharmacy that had been the site of recent break-ins. While there he engaged in conversation with an off-duty Metro police officer whose wife worked in the pharmacy nearby. Constable Stitt indicated that he talked with the off-duty Metro officer from approximately 5:00 a.m. to 6:00 a.m. Upon leaving the Metro officer, he immediately proceeded to the parking lot behind the convenience store.

24. The Metro officer testified that he talked with Constable Stitt until sometime after 5:30 a.m., and that upon finishing the conversation with Constable Stitt he drove home and arrived some time after 6:00 a.m. The Metro officer also testified that when their conversation ended, Constable Stitt indicated that it was time for him to prepare to go off shift and get gas for the car.

25. A woman who worked at a restaurant located adjacent to the convenience store testified that she (the “Restaurant Employee”) left her home at approximately 5:40 a.m. to walk to the restaurant to begin work at 6:00 a.m. As she walked along Simcoe Street she observed a police car parked behind the restaurant with the engine running. She testified that as she passed approximately ten feet from the car, she started to wave to the officer in the driver's seat but stopped her gesture when she realized that the officer was not looking at her. She indicated that the officer's head was facing downwards, in a manner that suggested to her that the officer was either reading or resting. She continued on her way to the restaurant. Other than indicating that the officer she had seen was male, she was not able to provide any description of physical characteristics.

26. When she arrived at the restaurant - RM (the "Clerk") was already there washing the restaurant floor. She indicated that they exchanged a few words of greeting, he finished washing the floor and went next door to open the convenience store. A few minutes later he "came tearing back in" saying that the convenience store had been broken into. She testified that she told the Clerk that there was a police officer parked out back and the Clerk said, "Right, I saw him too"

27. The Clerk testified that he drove to work arriving at approximately 5:45 a.m. that morning. As he approached the plaza containing the convenience store and restaurant he observed a police car parked behind the convenience store. He proceeded to do a quick cleaning of the restaurant. As he was finishing cleaning, the Restaurant Employee arrived and they exchanged greetings. He testified that the Restaurant

28. Employee commented on the police car that was parked outside and joked that the officer appeared to be sleeping.

29. Constable Stitt's photograph was the only one of an officer who was on duty in the district where the break-in occurred on December 24 or who was regularly assigned to that patrol district. The detective testified that none of the other officers who were on duty at the time were included in the photo lineup because none of them had similar physical characteristics to Constable Stitt.

30. The Appellant argued that the process of the photo-lineup was flawed, because photographs of other officers in that patrol district were not included. The Appellant argued that, because Constable Stitt frequented the convenience store to buy lottery tickets, the Clerk simply identified a familiar face in a photo lineup. However, Constable Stitt was not able to state that he had ever been personally served by the Clerk in the store.

31. The Appellant stated that it accepted the testimony of the Restaurant Employee in its entirety, but the testimony of the Clerk should be discredited because at times it contradicted itself or the testimony of other witnesses. The Restaurant Employee testified that the officer's car had its engine running with the headlights on. The Clerk testified that the engine was running, with the headlights off. Constable Stitt testified the vehicle was equipped with daytime running lights that would automatically be on when the engine was running.

32. He then went to open the convenience store, discovered the break and enter, found that the telephone line was dead and returned to the restaurant. By this time another restaurant employee had arrived. The Clerk testified that at that point, either he remembered the police car parked out back or the restaurant employee reminded him. He approached the car, observed that the officer appeared to be sleeping, tapped lightly on the passenger window and received no response. He then went to the driver's side and tapped on the window. The officer responded by opening the door. The Clerk reported the break and enter, and quickly returned to the store, expecting that the officer would be following him. When the officer did not appear he went outside and observed a police cruiser driving away on Simcoe Street.

33. At the hearing, the Clerk was not always precise in stating the manner or sequence of events. He also stated that he "never forgot a face" yet several months after the December break-in he did not recognize Constable Stitt when Constable Stitt attended the store to investigate a subsequent crime.

34. The Appellant also argued that the Clerk's account of events was implausible in terms of timing. Constable Stitt transmitted his out of service request at 6:03 a.m. and the call that the Clerk made to the police from his home was recorded by the police at 6:15 a.m. Using estimates provided by the Clerk as to how much time he required to go back and forth between the store and restaurant, try different phones that were not working, and drive to his home to place the call, the Appellant argued that four minutes were unaccounted for.

35. The Respondent argue that the Appellant's calculations do not take into account the fact that there can be a lapse of a few minutes from the time that a call to the police is initiated to when it is completed and then recorded in the log.

36. The computer log indicates that Constable Stitt went out of service at 6:03 a.m. If we accept that this is the time that he departed from the parking area and if we are to accept the testimony of the Restaurant Employee in its entirety, as the Appellantsuggests we should, it is difficult to accept Constable Stitt's testimony that he was parked behind the convenience store for only three to four minutes. The Restaurant Employee testified that the police car was visible to her in a stationary position as she walked along Simcoe Street in order to arrive at her place of employment by 6:00 a.m. The car was clearly there for more than three or four minutes.

37. The Clerk testified that he observed the car parked there when he drove by at 5:45 a.m. rather than across the street where it would have been if Constable Stitt had still been talking with the off-duty Metro officer at that time. He maintained this position under cross-examination, even when told by Counsel for the Appellant, that there had been evidence the previous day that the police car was parked across the street at that time (a description of the testimony that we do not find supported by the transcript).

38. The testimony of the Clerk is supported by the Restaurant Employee when she says that the Clerk told her that he had observed the cruiser on his way to work.

39. The Clerk is candid in stating when he is uncertain on details, but he is clear on seeing the police cruiser parked behind the store on his way to work and finding it still there with a dozing occupant fifteen or twenty minutes later. The key points of his testimony at the hearing are congruent with the statement he gave to the police five months earlier, including where he observed the cruiser on his way to work. His uncertainty five months later about whether the vehicle's headlights were on does not detract from his testimony. Nor does his confusion as to whether he went straight to the cruiser to report the break-in or first tried to use the telephone in the restaurant

cause particular concern with his testimony. Confusion or disorientation is not uncommon when an individual comes across a crime scene.

40. The Appellant's argument asks us to believe that the Clerk never saw a police cruiser parked behind the store that morning either on his way to work or after discovering the break-in. The Appellant asks us to conclude that the Clerk lied about seeing the cruiser on his way to work, fabricated a story about finding a sleeping officer, and then identified the picture of the very officer who was by his own admission in the area at the time from a group of pictures of officers with similar physical characteristics. Although the failure to include any other officers from District Three in the photo lineup raises some doubt about the identification, on the whole, we find the evidence to be convincing.

41. Constable Stitt's testimony is less convincing. He originally wrote that he was in the vicinity of the store for approximately thirty seconds, then, at the hearing, allowed that he might have been there three or four minutes. Given the evidence before us the statement of three to four minutes appears to underrepresent how long he was parked there.

42. On the whole, it is our view that there was sufficient evidence presented at the hearing to permit a conclusion based on a clear and convincing standard that Officer Stitt was guilty of the two counts of Neglect of Duty. We therefore dismiss the appeal of the conviction of these two charges.

43. The appeal of the conviction of a charge of Deceit will be considered next.

44. In response to the initial public complaint, Constable Stitt was asked to provide his version of the events on the morning in question. In a memo to the investigating officer Constable Stitt denied having any contact with the Clerk on that date. Counsel for the Appellant argued that one should not be found guilty of Deceit because he denies certain aspects of the charge and is later found guilty by a Hearing Officer. The charge of Deceit is based upon the officer’s version of the events of that date, which the Hearing Officer has not accepted. This is normally sufficient basis upon which to pursue a charge and obtain a conviction against an officer.

45. However, we sympathize with the officer’s argument about the charge, to the extent that the Hearing Officer may appear to be tainted by the earlier findings on other charges against the officer in the very same hearing. Obviously, the charge could be laid subsequently to avoid this concern, however the officer would then be faced with new charges, with the added delay, cost and uncertainty for both the service and the officer. We therefore accept, that in order to deal in a timely and efficient manner with all matters arising from those events, that the charge of Deceit be heard in the same hearing. That being said, the prosecution and the Hearing Officer should be cautious to clearly distinguish the facts and ensure that the conclusion of guilt on the other facts of the case do not taint the finding on the Deceit charges. In the circumstances of this case, the Commission finds no fault with the decision of the Hearing Officer.

46. Constable Stitt has also appealed the three penalties imposed by the Hearing Officer.

47. The disposition imposed in respect of the first charge of Neglect of Duty (idle while on duty) was forfeiture of eight hours’ pay. We can find nothing to support the view that this penalty should be altered.

48. In respect of the second charge of Neglect of Duty (failure to respond), the Hearing Officer reduced Constable Stitt “in rank effective immediately from First Class Constable to Second Class Constable for a minimum period of one year, at which time the Chief of Police may, in his discretion, following a review, recommend to the York Regional Police Services Board that you be reinstated to the rank of First Class Constable.”

49. The Appellant argues that an indefinite period for the penalty of this nature is not permitted by section 61(1)(c) of the Act. The Board of Inquiry reviewed section 61(1)(c) in its decision in X. v. Y. (unreported, 27June 1994), in considering an appeal of a demotion from the rank of sergeant for a period of nine months, after which Sgt. Y would remain a constable, but would be permitted to enter the promotional process at the first opportunity, provided he was eligible. The Hearing Officer stated that he was placing the onus on Sgt. Y to demonstrate that he was “qualified, capable and deserving” to regain his former rank.

50. Although X. v. Y. involves a Part V hearing arising from a Part VI public complaint, we believe the reasoning applies equally to an ordinary Part V proceeding.

51. The Board offered the following reasoning supporting an indeterminate disposition.

“In this context, there may be seen to be two distinct considerations in imposing a penalty upon a police officer. The first is the standard or general principles of sentencing - specific deterrence of the particular officer, general deterrence of other officers, reform or rehabilitation of the particular officer, and perhaps a form of public denunciation. We may label this the “sentencing” or “punishment” concern. However, there is another concern which may be seen as either a part of this “sentencing” concern or a separate concern in itself - the “suitability” concern.

The “suitability” concern is focused upon whether the police officer is qualified or suitable for performing the duties of his or her rank. The public interest in having qualified police officers is very important and this goes beyond the general public interest in penalizing officers for misconduct. In addition, the chief of police has a valid interest in managing the force. This is recognized by giving the chief a right to make submissions as to penalty in every case where the Board finds misconduct (see section 97(1) of the Police Services Act).

In addressing the “suitability” concern, the Board must recognize that there will be situations where the Board may find that an officer is still qualified to be a member of the force, but is unsuitable for a particular rank, and therefore should be demoted - but at the same time, perhaps the Board does not believe that the officer will be permanently unsuitable for that rank. In other words, the Board believes that the officer should be given a chance to apply for promotion at some later time. In such cases, the Board has no way of knowing when the officer will become suitable for return to his or her former rank. Nor is it proper for the Board to be involved in, or supervise, that process. The Board does not believe that it is delegating any of its authority or exercise of judgment to the police force when it imposes a penalty which essentially compels an unsuitable senior officer to start all over again from some lower rank.

The Board is best able to assess the period of demotion necessary for the “sentencing” or “punishment” concern, and this should never be delegated to anyone else. The Board has a responsibility to determine and fix a definite period of demotion which is appropriate in view of specific and general deterrence, and rehabilitation, as well as to express any public denunciation (a demotion penalty already presumes that a suspension without pay for thirty days is not sufficient).

However, where the Board also believes that the officer is not suitable for his or her rank, then the Board should specify a period of demotion which has no maximum and may be permanent or career-long. In specifying the manner of the demotion, the Board may allow the officer to apply for promotion or be assessed in the normal course, but only after a minimum period which is necessary to address the “sentencing” concern. This minimum period prevents a demotion from being shortened inappropriately by a quick promotion (in cases where the officer is found to be unsuitable at the time of the Board hearing but later re-qualifies quickly somehow). This would be improper delegation to the chief of the “sentencing” function of the Board or Hearing Officer.

The Board believes that this kind of demotion without any definite return to the former rank should be used only when the Board finds that an officer is no longer suitable for his or her more senior rank. Without this finding, a

demotion which is imposed only to satisfy othe “sentencing” or “punishment” concern should have a fixed time period without any provision to be shortened or lengthened by the force.” (pp. 19-22) As a result, we do not find the disposition objectionable on the basis that it is indeterminate.

52. With regard to severity of penalty, the Appellant argued there was no evidence to support the Hearing Officer's assertion "that Constable Stitt knowingly placed the safety of a citizen at great risk by failing to assist in any way". The Hearing Officer's assertion at the time of imposing penalty does appear to be an over statement. In reality the officer did not know if a citizen was in danger, as he simply left the scene without any investigation on his part. But, although the Hearing Officer may have overstated the situation, Constable Stitt cannot rely on the fact that no harm materialized to lessen the consequences of his behaviour.

53. At the time of penalty Constable Stitt had been a police officer for seven years. Hisrecord did not contain any other disciplinary convictions. He had received several cautions related to lack of diligence in maintaining or submitting proper records. His performance evaluations for the past three years indicated an average level of performance with neither major problems nor outstanding successes. The most recent performance evaluation, however, described an unfavourable attitude, a lack of satisfactory attention to detail and initiative in following up on reports, and resulted in a transfer to a different platoon. Testimony from the officer-in-charge of the new platoon indicated satisfactory performance following the transfer.

54. The evidence presented on Constable Stitt's actions

on December 24, 1993, appears to follow from the indicators in his record that there was a pattern of inadequate or unsatisfactory performance in some aspects of his duties. The Hearing Officer was justified in imposing a significant penalty for the Neglect of Duty charge arising from failure to respond to a request for service.

55. We were presented with a number of cases involving Neglect of Duty convictions, including:

Nason vs. Hamilton-Wentworth Board of

Commissioners of Police (unreported, Ont. Co.

Ct., 31 August 1984)

Constable Robert McGuire (1971), 1 O.P.R. 53 (OPC)

Constable Craig Andrus (1972), 2 O.P.R. 89 (OPC)

Constable James Bolderson (1974), 1 O.P.R. 171 (OPC)

Constable Harvey Harmer (1982), 2 O.P.R. 530 (OPC)

Constable Craig Andrus (1985) ,2 O.P.R. 676 (OPC)

Contable Bryan Galloway (1986), 2 O.P.R. 731 (OPC)

56. The particulars of these cases vary widely;

however, with the exception of Galloway, none of them provides a penalty arising from a single incident of Neglect of Duty that was greater than a six-month reduction in rank. Accordingly, we would agree that the penalty is too severe, and we would reduce the penalty which reads “a minimum period of one year” to “a period of six months.” As to the third charge (Deceit), the Hearing Officer imposed 40 hours forfeiture of pay. Given the totality of the dispositions in the circumstances, we are of the opinion that a more appropriate penalty would be forfeiture of 16 hours of pay.

Summary of Decision:

57. The appeal of the convictions for the two counts of Neglect of Duty and one count of Deceit are dismissed. The penalty with respect to the first charge of Neglect of Duty (being idle) stands. The penalty on the second charge is varied to “a period of 6 months”. The penalty with respect to the charge of Deceit is also varied to “16 hours pay.”

DATED THIS 28TH DAY OF FEBRUARY 1997.

Raymond G. Leclair Dean E. Peachey Member, OCCPS Member, OCCPS