ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE DIANE WILLIS
Appellant
-and-
LONDON POLICE SERVICE
Respondent
DECISION
Panel: Diana Jardine, Member Raymond G. Leclair, Member
Hearing Date: June 6, 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:
Diana Jardine, Member Raymond G. Leclair, Member
Appearances:
Michael J. Epstein, Counsel for the Appellant Bruce Kenneth Brown, Counsel for the Respondent
In Attendance:
Constable Diane Willis, Appellant Superintendent D. Vickery, Hearing Officer
Hearing Date: June 6, 1997
This is an appeal pursuant to s. 65 of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act”) from a decision of Hearing Officer Superintendent D. Vickery (the “Hearing Officer”) rendered on the 14th and 29th days of February, 1996.
The Hearing Officer found that Constable Diane Willis had committed two acts of misconduct, in that she did without lawful excuse, neglect or omit promptly and diligently to perform a duty as a member of the Police Force contrary to s. 56 of the Act and s. 1(c)(i) of the Code of Conduct found at R.R.O. 1990, Reg. 927 as amended. The specific allegations related to being late for court and leaving a gun unattended in an open locker.
As well, the Hearing Officer imposed penalties of:
a) Reduction in rank to 4th Class Constable “A” for being late for court; and
b) Dismissal in seven days unless resignation for leaving her gun in an open locker.
- At the commencement of this proceeding we were advised that the appeal arising from the finding of misconduct relating to late attendance at court was withdrawn.
Events Giving Rise to the Appeal:
In the first case of misconduct Constable Willis, on Tuesday, July 4th, 1995, was notified that she was required in traffic court at 1330 hours on Wednesday, July 5th, 1995. Constable Willis admits that she was notified for court, and had in fact made preparation for her appearance including the notification of witnesses. On July 5th, 1995 Constable Willis did not attend court as required at 1330 hours, but instead she paraded for her tour of duty at 1345 hours then signed out a police vehicle at approximately 1415 hours and went to court, arriving at court at approximately 1430 hours. As noted earlier, this part of the appeal of the conviction and penalty were abandoned at our hearing and the appeal proceeded only with regard to the second charge.
The second allegation of misconduct arises from an incident which took place on Sunday, July 30th, 1995 at approximately 0300 hours when Constable Willis completed a tour of duty. At approximately 0615 hours on the same date Constable Lori Fitchett was in the female locker room and noticed one of the locker doors was unlocked and open, and a service revolver was clearly visible. Constable Fitchett notified her supervisor, Sergeant Steve Virag, and he attended in the female locker room and seized the revolver from a locker, identified as that belonging to Constable Diane Willis.
An investigation into the matter was conducted. During the investigation Constable Willis was interviewed and in her statements was adamant that she left her locker secured. The investigation revealed that, other than Professional Standards Branch, no other persons had keys or access to officers’ lockers. Constable Willis was convicted of contravening police policy and procedure with respect to the care of her firearm which states; “It will remain the responsibility of individual officers to ensure that their issued firearms are stored in a safe and secure manner and that the storage area, for example: ‘lockers’, are locked when left unattended”
The Arguments:
a) Standard of Proof:
The Appellant argues that having regard to the allegations and the potential consequences, the case against the Appellant must be proved on clear and convincing evidence. It was submitted that the Hearing Officer failed to apply the proper standard, having regard to all the evidence.
The Respondent argues that the Hearing Officer had applied the proper standard,having regard to all the evidence presented and that there had been clear and convincing evidence to support the finding that Constable Willis had failed to secure her locker.
b) Penalty:
The Appellant contends that the penalty imposed was excessive and that under subsection 47(2) of the Police Services Act, notwithstanding that this is not a dismissal under s. 47, the employer has an obligation to accommodate a member’s needs, including financial stressors, partnership or marital problems, alcoholism, psychiatric, or any other illness or treatable disease, if this can be done without undue hardship. Mr. Epstein asserts that where conduct is attributable to mental illness, mental strain, or physical illness, the conduct complained of does not constitute cause for dismisal in that the employee does not appreciate the link between her illness and poor job performance and cannot therefore be treated the same as any other employee.
It was also submitted that the Hearing Officer erred when he found that there was an onus on the officer to seek help, when the medical complaint relates to mental strain or illness and that the London Police Service has no duty to accommodate an employee who is suffering from an such illness. Mr. Epstein argued that the Hearing Officer erred in finding that there is no hope of Constable Willis becoming a valuable and contributing member of the London Police Force. Having regard to all of the circumstances, the Appellant maintains that the penalty of resignation within seven days or dismissal was too harsh.
The Respondent submitted that the London Police Force constantly and consistently attempted to accommodate and correct the inadequate performance of the Appellant during the time of her appointment and that this was not a situation where an otherwise valuable and contributing officer had fallen in performance. The Appellant was substandard throughout her career. The Respondent claims that the incident involving the locker door became the culminating incident in a long litany of difficulties with the Appellant. It was further submitted that the London Police Force carefully followed the principle of progressive discipline throughout the Appellant’s tenure as a police officer and that the Hearing Officer was satisfied that the Appellant was incapable of discharging the duties and responsibilities assigned to the job.
Work History:
i) Personnel History:
Constable Diane Willis was hired by the London Police Force as a cadet recruit on January 20, 1992. After completing her training at the Ontario Police College she was appointed to 4th Class Constable “A” on May 1, 1992, and commenced street training May 5th. On July 2nd, 1992, she commenced patrol on her own.
A re-classification report, dated September 23rd, 1992 stated that Constable Willis was a conscientious officer who worked hard during her tour of duty and was becoming more thorough in her Criminal Code enforcement; was dependable; showed initiative and was progressing at a satisfactory level; kept a neat appearance; got along well with her peers and supervisors and was courteous and respectful in her dealings with the public. It was noted that Constable Willis still had a problem in her written communication skills and that this would be closely monitored for improvement. It was concluded, by Sergeant Spark and endorsed by the Section Commander, that although there was room for improvement Constable Willis was progressing at a satisfactory level and should be re-classified to 4th class Constable “B”. This took place on November 1, 1992.
Her first formal performance appraisal report covered the period up to December 31, 1992. This report indicated that improvement was required in the areas of job knowledge and skills, work performance and responsibility. The comments in each of these areas included:
Job Knowledge: Police Constable Willis is gaining knowledge and improving her investigation skill as her experience increases;
Work Performance: Police Constable Willis is performing her duties satisfactorily. She works hard and her enforcement has been good. The quality of her work is improving with experience;
Responsibility: Constable Willis is a hard working young police officer who is improving with experience. Her confidence is increasing and she willingly accepts responsibility.
Her supervisor’s comments indicated that Constable Willis was “improving at the expected rate for an officer with her experience”. The reviewing officer concurred with the rating officer’s report that she was progressing at a satisfactory rate at this time in her career.
On March 28, 1993 a second re-classification report was completed which indicated that in the area of work performance Constable Willis was a hard working officer and her overall enforcement above average with a good working knowledge of the various federal, provincial and municipal by-laws. With regard to dependability, Constable Willis was found quite capable of handling all basic calls for service. The report also indicated that Constable Willis was self-motivated, of good appearance, got along well with her fellow officers, was respectful towards her supervisors and had no problem communicating with the public.
On the matter of written communication Constable Willis had received 11 critique notices as a result of not proof-reading her reports prior to submitting them at the end of her shifts. On March 15, 1993 Constable Willis was counselled regarding the excessive number of critique notices she was receiving. An improvement since that date was noted in the report. The report concluded that she was progressing a satisfactory rate. The supervisors of Five Section, supported by the Section Commander, recommended that she be re-classified to 3rd Class Constable. This took place on May 1, 1993.
A second performance appraisal report was prepared covering the period January 1, 1993, to December 31, 1993. This annual appraisal was submitted by a different supervisor than the one who had submitted the first performance appraisal. It was similar to that of the first appraisal report, indicating improvement was required in the areas of job knowledge and skill, work performance and responsibility. The comments were similar to those in the first, except for notations regarding a minor motor vehicle accident involving her cruiser, that she had been spoken to for not answering her radio and for an accident involving a driver who had been drinking. Her supervisor had concluded that:
P.C. Willis continues to work hard on the job. Her verbal communication skills are good. More time must be spent on improving her written communication. She is a dedicated, loyal employee
- The reviewing officer noted that:
Additional responsibility has been placed in P.C. Willis’ hands by her assignment to bicycle patrol. Keep up the effort.
- A third re-classification report dated March 30, 1994 identified five incidents of a more serious nature which took place since her appointment to 3rd Class Constable and her last re-classification report. The report highlighted that on three separate occasions during this period she used poor judgement regarding investigations of a more serious nature. These included:
On May 5, 1993 she was involved in the search for a stolen vehicle when she observed a similarly described vehicle while on patrol. She did not notify Communications of this information. She eventually found the vehicle in her patrol area and later learned that it was another stolen vehicle. It was alleged that a more timely notification could have led to the arrest of suspects and would have enhanced officer safety had she located the vehicle with suspects inside.
On July 13, 1993 she investigated a sexual assault with two female victims aged 12 and 13 years. The females refused to co-operate with her and falsely identified themselves. She allowed the females to leave. She was cited for not detaining the females as children in need of protection.
On February 20, 1994 she investigated an ambulance call where the victim was found at the bottom of a set of stairs. The victim was later found to have serious head injuries. Constable Willis did not arrange to have this matter followed up to determine the extent of injuries.
Constable Willis also had two departmental motor vehicle collisions during this period. The first was on June 5, 1993 where she left the road and struck fixed objects. She was charged and later acquitted of careless driving. The second occurred on February 11, 1994 where she struck a fixed object in the police garage. She was assessed 16 hours of unpaid work as informal discipline.
The supervisor’s recommendation noted that, had the last two incidents not occurred, a recommendation for promotion would likely have been made. He concluded that based on all of these events a further period of time was required to enable her supervisors to ensure that she could consistently maintain the level of performance and judgement expected of a 2nd Class Constable. It was recommended that Constable Willis not be re-classified on her scheduled date and that her supervisors be given three extra months to monitor her performance.
As a result, reclassification was deferred until August of 1994. In a reclassification report dated August 18, 1994, her supervisor stated:
P.C. Willis’ reclassification was deferred from May 1/94 to August 1/94 due to concerns about her judgement. During this interval, her performance has been closely monitored by all section supervisors. P.C. Willis has shown a positive attitude and a desire to improve. She has not displayed any of the behaviours that resulted in the deferment but has, in fact, been commended for specific, positive actions. It is my opinion that the deferment has achieved its desired result and that P.C. Willis should be reclassified to the rank of Police Constable, 2nd Class effective August 1, 1994
The Section Commander, Division Commander, Deputy Chief and Chief all concurred with the supervisor’s recommendation. As a result, Constable Willis was re-classified to 2nd Class Constable effective August 1st, 1994.
It is from this point in time that Constable Willis begins a downward spiral.
On September 9th, 1994 Constable Willis was charged with neglect of duty arising from a May 25th, 1994 investigation of a dangerous and impaired driver. It was alleged that at the time of this investigation Constable Willis had sufficient evidence to arrest or otherwise lay charges against the individual for dangerous driving. At the time of the investigation Constable Willis had been given advice on the investigation by Sergeant Trineer. It took over two months for the suspect to be charged under s. 244(2) and 253(a) of the Criminal Code. The investigation revealed no reasonable explanation as to why it took over two months for charges to be laid. She pled guilty and was demoted to 3rd Class Constable.
On March 22nd, 1995 Constable Willis attended a residence to investigate a complaint of harassing phone calls and an assault. The complainant and his girlfriend alleged that he had been assaulted by a third male. The complainant gave to Constable Willis the name of a witness to the assault. Constable Willis attended at the business address of the suspect and upon interviewing him determined that the suspect was only removing the complainant from the business premises and did not lay any charges. It was alleged that when investigating this matter she failed to take written statements from the complainants and did not interview the witness to the assault. Another officer doing the follow-up investigation laid the appropriate charge of assault. Constable Willis pled guilty to neglect of duty and was assessed a penalty of forfeiture of sixteen hours’ pay.
On that same day, March 22nd, 1995 Constable Willis responded to a call to attend a parking lot where she spoke with two complainants who reported to her that they were having problems with a male individual. They indicated that this individual had followed them in his vehicle and on two occasions drove his car in front of them and had cut them off. It was alleged that there was clear evidence of the commission of the offence of dangerous driving. Constable Willis classified this call as a ‘Domestic
- No Further Action’. Later on the same date the complainant had called Police Headquarters to find out the results of his complaint and Sergeant Koehler, on reading Constable Willis’ occurrence, immediately assigned two officers to complete this investigation. As a result of the two officers reviewing Constable Willis’ occurrence, a charge of dangerous driving was immediately laid and a warrant was applied for the arrest of the individual. She pled guilty to neglect of duty and was demoted to fourth class Constable “B”.
Constable Willis’ performance appraisal report for the period of January 1, 1994 to December 31, 1994 was reflective of the incidents which occurred during that year. Her supervisor commented that; “P.C. Willis did not have a good year during this rating period. She made some poor decisions resulting in disciplinary action. In order for her career to progress in a positive manner she must learn to utilize her fellow officers and her supervisors for advice”. The reviewer agreed with this assessment.
Her performance appraisal report for the period January 1, 1995 to December 31st, 1995 indicated an even more substantial turn for the worse. In it she not only failed to meet the standard in all areas of assessment including Deportment and Interpersonal Relations, where she had always received adequate assessment and positive comments; but comments such as “apparent lack of knowledge in statutes and criminal law, her enforcement is low, and she does not actively associate with her peers” were also contrary to the positive comments which she had received on her previous performance appraisal reports and re-classification reports. Her sullen appearance was also noted on the report as was her being off on extended sick leave. The appraiser, Sergeant Holek, concluded that Constable Willis had not proven herself capable of performing the duties of a Police Constable, which was supported by the reviewer, Staff Sergeant Pearson.
It is important to note that in addition to the normal development and training process, the London Police Service did provide further training to assist in her development. She was accompanied by another officer for retraining and evaluation purposes for one week in April of 1995, three weeks in July, 1995 and two weeks in July/August 1995.
It was during this period that the “court” incident occurred. As noted earlier, this resulted in charges of neglect of duty before the Hearing Officer which produced a penalty of demotion to fourth-class constable “A”.
ii) Medical History:
It is not entirely clear when Constable Willis began encountering medical problems of a psychological nature, but it is known that the problem had manifested itself to such a degree that by April 18, 1995 Constable Willis referred herself to the London Employee Assistance Program for assistance.
Mrs. Sandra Foster, M.A., clinical member for the program writes that at the time of her referral:
she [Constable Willis] was very mistrustful that any information about herself could be accessed by Police Act prosecutors; she therefore asked me not to keep any clinical notes on our first 8 sessions until she began to feel sufficient trust in the confidentiality here. Even though we have seen many officers over the years her request is rare and indicates her level of anxiety and fearfulness at the time of first contact. Despite this, Diane has persisted with counselling and even agreed to see her family doctor, at my request, when I felt she needed medical intervention for her anxiety.
From April, 1995 to February, 1996 Constable Willis attended 18 sessions, not missing one appointment during this period of time. It was Mrs. Foster’s opinion that Constable Willis’ problems began several years before and having been left untreated manifested itself to the present crisis. It was her recommendation that Constable Willis continue counselling with the aim of learning better coping skills for dealing with her problems, and to resolve some of her issues from the past.
Constable Willis was also referred to Dr. Harold E. Mountain (F.R.C.P.(c)). A report filed by Dr. Mountain indicates his involvement with Constable Willis had been to attempt to deal with the depression which was in existence in the fall of 1995 and the events which generated the stresses. In his view the over exposure to events appeared to generate stress hormones which dislocated brain chemical (neurotransmitter) balances. The effect of these neurotransmitter imbalances are impairment in functions such as memory, concentration, decision making, initiative, energy endurance, interest, enjoyment, sleep, appetite and mood. Dr. Mountain’s report indicates that Constable Willis had experienced many of these symptoms.
As a treatment for the disorder, an antidepressant medication was prescribed to correct the imbalance. Functions such as memory, concentration, decision making, etc. returned to a normal level of effectiveness.
The Issues:
The appeal arises from the Hearing Officers’ decision with respect to the second charge and the penalty imposed by the Hearing Officer of dismissal, related to her gun being found in her open locker and is based on the grounds that:
The Hearing Officer failed to apply the proper stand of proof, which requires clear and convincing evidence to support a conviction.
The penalty of dismissal was harsh and exceeded the penalties imposed in cases of a similar nature.
Decision:
The Appellant argued that the Hearing Officer did not have clear and convincing evidence upon which to base a conviction for not properly storing her firearm and that the offence was not one of absolute liability, requiring more than a finding of the firearm in the open locker to convict. At the disciplinary hearing the Appellant testified as to her usual routine in storing her firearm and her belief that when she left her locker that evening she was adamant that she had properly put her lock in place and secured it closed.
However, the locker was found open, with the lock on the clasp, as if someone had left is unattended. There was no evidence of tampering presented and to suggest that a fellow officer, would in the dead of night, access the locker area, open her lock, turn her firearm around and leave it unsecured, presumably to cause her problems is not supported by the facts. Based on the evidence presented, we are satisfied that the locker and the firearm inside were left unsecured by the officer on the evening in question. The medical evidence presented supports the possibility that such an inadvertent lapse of concentration or memory may have occurred that night.
Notwithstanding, the obligation to secure one’s firearm is paramount, in view of the fact that this is the only measure denying access to these loaded firearms when not under the officer’s care and control, save for the fact that the lockers are in a non-public area of the police station. An officer must ensure that his or her firearm is properly secured and we find that there was sufficient clear and convincing evidence to convict the officer.
Penalty:
This brings us to the matter of penalty. Constable Willis’ recent performance appraisals indicate that she was barely acceptable, and in some areas, was failing to perform her duties in an acceptable manner. In addition to the normal development and training process, the London Police Department provided some further training to assist in her development.
However, the penalty of dismissal is reserved for the most serious of cases. Before the London Police Force can advance to the next step of dismissing an officer for non-competence, based upon a series of minor incidents, they should have established a written detailed correction plan for this officer with clear goals established, resources available, training opportunities, and a proper supportive environment to prosper. It is an important distinction to note that this situation is not one which encompasses a character flaw, criminal offence or even a discipline problem. This was not a recruit in her probationary period. If there was sufficient talent and potential not to terminate her at the end of her probationary period and to promote her to that of 2nd Class Constable, then it would be improper to dismiss this Officer for lack of ability to perform police functions without this type of comprehensive correction plan.
Even if this was a situation where an otherwise valuable and contributing officer had fallen in performance, where the conduct can be attributable to mental illness or mental strain, the conduct complained of should not constitute cause for dismissal if there is a link between her illness and poor job performance.
Uncontradicted evidence has been provided in the form of a report by Mrs. Sandra Foster, clinical member of the London Employee Assistance Program which clearly indicates that medical or psychological problems contributed to Constable Willis’ inability to perform her duties. In addition, a report filed by psychiatrist Dr. Harold E. Mountain, clearly articulates that over exposure to events appeared to generate stress hormones which dislocated brain chemical (neurotransmitter) balances. Functions such as memory, concentration, and decision making were affected.
Constable Willis’ performance appraisal report for the period January 1, 1995 to December 31st, 1995, which indicated a turn for the worse also indicates the presence of something more that an inability to perform her duties. In it she not only failed to meet the standard in all areas of assessment including Deportment and Interpersonal Relations, where she had always received adequate assessment and great comments; but comments such as “apparent lack of knowledge in statutes and criminal law”, “her enforcement is low”, and “she does not actively associate with her peers” were also contrary to the positive comments to which she had received on her previous performance appraisal reports and re-classification reports. Her sullen appearance was also noted on the report, as was her being off on extended sick leave.
The Hearing Officer, in his decision, also stated: “I believe the onus is upon an officer to seek help if they are in need of help.” The Hearing Officer went on to say: “I do not accept the suggestion that there is an onus on the London Police as an employer to accommodate this officer as, according to the evidence presented, she is neither mentally or physically disabled.”
However, not only do sections such as s. 47 of the Police Services Act confer an onus on the force to accommodate officers, but case law also establishes the requirement of the service to be aware of situations where the conduct of an officer might suggest the service should offer help. In Re Canada Safeway Ltd. And U.F.C.W., Loc. 401, (1993) 1992 CanLII 14485 (AB GAA), 26 L.A.C. (4th) 409 (Atla. Arb. Bd.) aff’s 1995 ABCA 7, 162 A.R. 306 (C.A.) a grocery clerk was discharged for poor work performance. It was found that he suffered from underlying mental problems unknown by the supervisor at the time of discharge. The court found that the penalty of discharge was excessive in the circumstances and that the employer was required to accommodate the grievor’s mental disability. In it the Court stated:
you cannot terminate an employee whose substandard performance is a function of a mental condition which robs him of the ability to make correct work choices without making a reasonable effort to help him meet the demands of the job or give him a reasonable time and assistance to recover his mental health while on lay-off.
We do not believe that Constable Willis received sufficient help from the London PoliceForce to cope with her mental disability, a service that should be available to allemployees. Nor did it provide a supportive environment to prosper, or a reasonableperiod of time in which to recover from or control her mental disability so that it could beproperly determined whether she could perform the duties of a police officer.
In Marsden and Metropolitan Toronto Police Service (1994), 2 O.P.R. 974 (OCCPS) aconstable was charged with two counts of discreditable conduct under the Police Services Act and found guilty on the second charge. These were related to allegationsof driving a motor vehicle while under the influence of alcohol and the purchase of crackcocaine.
On appeal, the Commission failed to find sufficient evidence on the second charge, butdid uphold the finding of guilt on the first. Evidence was presented which clearlyindicated Constable Marsden was a chronic alcoholic and had attempted to rehabilitatehimself (with minimal assistance from the force) many times and failed. It was this disease which played a prominent role in his actions related to the charges ofmisconduct.
The Commission concluded that:
The penalty should be reduced. The relative success of the appellant’sunsupported attempts to combat his illness offer reason to be optimisticabout his supported attempts. Further s. 47(2) of the Police Services Actrequires that the police service accommodate a member’s needs, if possible without undue hardship. Although this dismissal was notpursuant to that section the fact that the officer’s treatable disease contributed to the situation, should entitle him to a chance to prove himselfworthy to remain on the force.
We find evidence of similar mitigating factors in the case of Constable Willis. Attemptsat rehabilitation by an officer, through counselling is a mitigating factor in sentencing.The Hearing Officer should have considered whether the medical evidence and Constable Willis’ supported attempts at rehabilitation would have made her fit to remain an employee. The fact that Constable Willis’ treatable condition contributed to the act which led to dismissal should entitle her a chance to prove herself worthy to remain onthe service.
The Hearing Officer had also concluded that “ ... it is clear to me there is no hope ofConstable Willis becoming a valuable and contributing member of the London Police”. However, the uncontradicted evidence suggests, by way of Dr. Mountain’s report, thatthe antidepressant medication which was prescribed to treat Constable Willis was successful in correcting her brain chemical (neurotransmitter) imbalance. In addition, Ms. Foster believed that with continued counselling, with the aim of learning better coping skills for dealing with her problems, Constable Willis should be allowed to continue in her duties.
We believe that medical or psychological problems did contribute to Constable Willis’ inability to perform her duties and that there is “hope” of Constable Willis becoming a valuable and contributing member of the London Police Force.
We find that the penalty of dismissal was too harsh in this instance. There should be an opportunity for Constable Willis to return to her duties under supportive supervision so that defects in her performance can be corrected and that her competence can be confirmed or, if it evolves that she is not capable of performing the duties of a police officer, that she could be terminated with solid evidence not contaminated with the appearance that her difficulties in performance were at least to some degree the result of her psychological problems which have now been treated and, by her own accounts and those of the clinical submissions suggest, she is now capable of performing.
Accordingly, Constable Willis shall remain at a rank of 4th Class Constable “A” for a twelve-month period.
DATED THIS 22ND DAY OF DECEMBER 1997.
Diane Jardine Raymond G. Leclair Member, OCCPS Member, OCCPS