ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE DAVID BRENNAN
Appellant
-and-
NIAGARA REGIONAL POLICE SERVICE
Respondent
DECISION
Panel: Karlene J. Hussey, Member Karl R. Fuller, Member
Hearing Date: September 5, 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 Karl R. Fuller, Member
Appearances:
Michael Pratt, Administrator, Niagara Regional Police Association Robert Clarkson, Retired Inspector, Niagara Regional Police Service
Hearing Date: September 5, 1997
- The Appellant brings this appeal under the Police Services Act, R.S.O. 1990, c. P.15, as amended, from a conviction of two charges of Discreditable Conduct contrary to section 1(a)(iii) of the prescribed Code of Conduct, Ontario Regulation 927.
Background:
- The first charge alleges that on May 4, 1995, Constable Brennan was involved in a conversation with Detective Staff Sergeant Paul White in his office. As Constable Brennan began to exit the detective staff sergeant’s office, he requested that Constable Brennan return to his office at which time Brennan replied with a profanity. The charge sheet states that:
Investigation into this matter has revealed that you did commit a Discreditable Conduct by using profane, abusive or insulting language to any member of a police force.
The second charge alleges that on May 4, 1995, Constable Brennan was involved in a conversation with Detective Staff Sergeant Paul White in his office. As he exited the office, Detective Staff Sergeant White said in a loud voice, “Constable Brennan, return to my office at once, that is a direct order”. Constable Brennan ignored this order.
The charge sheet states that:
Investigation into this matter has revealed that you did commit insubordination, that is to say, that you did, without lawful excuse, disobey, omit, or neglect to carry out a lawful order.
The facts in this case indicate that Constable Brennan had sustained an on the job injury to his right wrist during 1992 in an altercation with a suspected drug trafficker. As a result, he underwent arthroscopic surgical exploration to repair the condition. This led to severe bouts of pain. As a result of the pain and ongoing discomfort, Constable Brennan resigned from the tactical team to which he had been assigned and thereafter carried out general duties of a uniform officer. Following the surgery in 1994, his condition appears to have worsened and he could no longer continue as a fully operational officer. He therefore accepted modified duties within the police service.
The evidence reveals that on May 3rd and 4th of 1995, Constable Brennan was working at home on a computer related assignment and that Superintendent Nicholls was aware of both the assignment and the fact that he would be working at home. However, his Supervisor, Staff Sergeant White and the Inspector were not privy to this arrangement. On the morning of May 4th, Staff Sergeant White contacted Constable Brennan at his residence and requested that he attend Staff Sergeant White’s office by noon. Constable Brennan arrived at the office of Staff Sergeant White at around 10:20 a.m. and discussions ensued regarding his whereabouts on the previous day. (It would appear that Superintendent Nicholls had given a work assignment to Constable Brennan and the details were not adequately communicated to the Inspector and the Staff Sergeant.)
During the conversation, Staff Sergeant White requested that Constable Brennan remain in his office while he consulted with the Inspector. At that point, Constable Brennan, however, began to walk away from the office, whereupon Staff Sergeant White said to Constable Brennan, “Dave, would you come back please!” And in a loud voice, Constable Brennan replied “Fuck you!”
Constable Brennan continued walking and Staff Sergeant White said in a loud voice, “Constable Brennan, return to my office at once, that is a direct order.” The order was ignored and the staff sergeant repeated it.
Superintendent Nicholls had witnessed a part of this incident and invited the Constable to his office. A meeting followed among the Superintendent, the Inspector, the Staff Sergeant, and the Constable. During this meeting, Constable Brennan admitted that he had been insubordinate and later returned to Staff Sergeant White’s office, indicating that he wished to apologize. Staff Sergeant White responded that he should do what he has to do, and that he was proceeding by way of disciplinary action.
During the hearing, the Appellant admitted that he did not dispute the facts as stated but entered a plea of not guilty to both charges. He entered a defence of “lawful excuse” given that he was suffering the side effects of prescription medication.
In support of his defence, the Appellant presented a letter from his family physician, Dr. R.C.S. Rose, who confirmed that Constable Brennan had undergone surgery. In addition, he stated the following:
Subsequent to that surgery, his recovery was complicated by continued significant pain and was treated with Tylenol No. 3. He apparently also obtained Pentazocine (Talwin) 50 mg. which is a narcotic analgesic, prescribed for significant pain relief. The possible side effects of the latter drug include some disorientation, agitation and minor hallucinatory effects. This drug is also only usually used for short-term relief of intense or intractable pain syndromes. The side effects of this medication would be enhanced if taken with other treatment medication regimes.
I am of the opinion that Mr. Brennan’s actions at that time, could have been affected by the side effects of the above mentioned treatment regimes.
The Arguments:
In his submissions to the Commission, Mr. Pratt reviewed salient points in the appeal factum including the following:
That Constable Brennan had no right to be insubordinate and although an apology was offered, Staff Sergeant White was not obliged to accept.
That Constable Brennan had taken the medication while at home on May 2nd, and 3rd and would not have taken the medication on May 4th if he knew he would be called to the office.
That prior to the events for which the Constable was disciplined, he had only taken the prescription drug at night, about two hours prior to bedtime, not every night, but only as the pain required.
That the medication caused agitation and additional abnormalities.
That the doctor’s letter was not the only evidence presented at the hearing and that the Appellant’s testimony was eloquently presented.
That evidence of Constable Brennan was that his emotional response was not in keeping with his normal exercise of judgment, his ability to resolve conflict and his de-escalating of problem situations.
That the Commission should understand the predicament in which the Constable found himself.
The Appellant also argued that the Hearing Officer arrived at a finding of guilt based on the following:
a) That the medical evidence of Dr. Rose was lessened because there was no “fair cross-examination,” given that the doctor was not called to give testimony and the prosecution had no opportunity for cross-examination.
b) That the defence had not shown that side effects of medication were the only rational explanation for his actions.
c) That the onus on the defence was to establish clear and convincing proof of lawful excuse.
Inspector Robert Clarkson spoke on behalf of the Respondent addressing his view that the prosecution had met its obligation to prove the facts on clear and convincing evidence. He indicated that in his view, Constable Brennan was frustrated with his assignment, and pointed out that while Constable Brennan was in a state of anger, there was no confrontation with Superintendent Nicholls. It was his position that the Hearing Officer had heard the evidence and had arrived at a conclusion, and that the appeal of Constable Brennan should be dismissed.
Decision:
Having reviewed the facts in this case, we find that Constable Brennan acted improperly in his use of profane language to another officer, and in failing to obey the order to return to the office of the Staff Sergeant. This conduct was not in dispute. The Appellant presents a defence of lawful excuse as the basis for his appeal.
The Appellant relies on the medical report, which states that:
Mr. Brennan’s action at that time could have been affected by the side effects of the treatment regimes. (This would be the use of Pentazocine (Talwin) 50 mg. and a possible enhanced side effect if taken with other treatment medication).
We note also, the Prosecution’s reference to the Appellant’s changed behaviour when, within a few seconds of using profane language to the Staff Sergeant, he responded in a more subdued manner to Superintendent Nicholls and his invitation to proceed to his office.
Considering all the issues raised in this case, we are not convinced that a defence of lawful excuse has been proven. While we are not in a position to properly assess either the degree of ill-effect of the prescribed medication or the state of the Constable’s mind, we believe that the sequence of events suggests that he was able to hear the direct order from his Staff Sergeant in the same manner as he heard, understood and responded to the directions from his Superintendent. Further, we find that any evidence given in support of this defence including the letter from the physician is at best speculative.
The imposition of penalty following a hearing of misconduct must be consistent with the provision of section 61(1) of the Police Services Act which states:
If misconduct is proved at a hearing on clear and convincing evidence, the Chief of Police may,
a) Dismiss the police officer from the police force.
b) Direct that the police officer be dismissed in seven days unless he or she resigns before that time.
c) Demote the police officer, specifying the manner and period of the demotion.
d) Suspend the police officer without pay for a period not exceeding thirty days or 240 hours, as the case may be.
e) Direct that the police officer forfeit not more than 5 days or forty hours pay, as the case may be.
f) Direct that the police officer forfeit not more than 20 days’ or 160 hours off, as the case may be.
- and section 61(3) which reads:
Instead of or in addition to a penalty described in subsection (1), the Chief of Police may reprimand the officer.
The Hearing Officer imposed a penalty of admonishment, a penalty that is not available under this section. An admonishment may be given only where there is an informal resolution of the matter, where the chief of police has determined that the case is not of a serious nature (section 59(2)).
In these circumstances, we dismiss the appeal of the conviction and send the matter back to the Hearing Officer for the proper disposition of the penalty.
DATED THIS 22ND DAY OF JANUARY 1998.
Karlene J. Hussey Karl R. Fuller Member,OCCPS Member, OCCPS