ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE MICHAEL MCCLORY
Appellant
-and-
HAMILTON-WENTWORTH REGIONAL POLICE SERVICE Respondent
DECISION
Panel: Murray W. Chitra, Chair
Bob Saracino, Member
Hearing Date: Friday, November 14, 1997 and Monday, March 23, 1998
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:
Murray W. Chitra, Chair
Bob Saracino, Member
Appearances:
Doug Allan, Agent for the Appellant
H. Reginald Watson, Counsel for the Respondent
Hearing Dates: Friday, November 14, 1997 and Monday, March 23, 1998
This is an appeal from convictions on two counts of discreditable conduct and one count of insubordination made against Constable McClory under sections 1(a)(i), 1(a)(iii), and 1(b)(ii) of the Code of Conduct contained in Regulation 927 of R.R.O. 1990, as amended (the “Code”).
As well, this is an appeal against the penalties imposed.
Background
Constable McClory became a member of the Hamilton-Wentworth Regional Police Service in 1988.
On Wednesday, April 12, 1995 Constable McClory was working the day shift. At 1203 hours he was dispatched to respond to a complaint of a disturbance. Constable Holt was sent as backup. Constable Holt appeared at the scene within minutes. Constable McClory arrived 25 minutes later.
At the scene Constable McClory spoke to an employee of State Farm Insurance. When she tried to offer an opinion, McClory interrupted her, raised his voice and shook his finger in her face.
At 1440 hours that afternoon, Constable Holt returned to the station. She expressed frustration to Acting Sergeant Simchison over the way that Constable McClory had behaved earlier that day. Acting Sergeant Simchison agreed to look into the matter.
Later that afternoon at 1620 hours Acting Sergeant Simchison encountered Constable McClory in the station’s back parking lot. He requested that McClory go to the supervisor’s office so they could meet. Constable McClory asked to know the purpose of the meeting. He was told it had to do with the disturbance call.
At the supervisor’s office Acting Sergeant Simchison asked a number of questions and requested to see the officer’s notebook. Constable McClory refused to answer any questions or respond to a direct order to produce his notebook. The discussion became heated, profanities were used and Constable McClory left the office.
Acting Sergeant Simchison sought Constable McClory out and the heated discussion with further orders, refusals and profanities continued in different locations throughout the station, including the staff lunchroom where a number of officers and auxiliaries were sitting.
As a result of these events, on July 21, 1995 Constable McClory was charged with five counts of misconduct. Superintendent Robert Martin was appointed as the Hearing Officer. Over the next year, the hearing was adjourned on several occasions for various reasons.
On July 23, 1996 Mr. Allan, on behalf of Constable McClory brought a motion requesting that Superintendent Martin, remove himself from the proceedings. The basis for the motion was a conversation the Hearing Officer had earlier that day with Ms. Laurie Vechter, counsel to the prosecutor, in the absence the accused officer's representative.
The Hearing Officer sought legal advice on this motion from Mr. David Beck, counsel with the Regional Municipality of Hamilton-Wentworth, and considered submissions from the parties. Mr. Allan expressed concern that given that Mr. Beck worked for the same employer as Ms. Vechter that his advice could not be considered independent. On July 25, 1996 the motion was denied.
On October 4, 1996 Constable McClory pled guilty to three counts of misconduct. The first count was for discreditable conduct contrary to section 1(a)(i) of the Code and dealt with Constable McClory’s “disturbing and disrespectful" treatment of the State Farm employee. The second was also for discreditable conduct contrary to section 1(a)(iii) of the Code and concerned the “profane, abusive or insulting language” that Constable McClory used towards Acting Sergeant Simchison. The third count was for insubordination contrary to section 1(b)(ii) of the Code for failing to surrender hisnotebook when so ordered. The remaining charges were withdrawn.
A number of witnesses were heard and submissions made. On October 23, 1996 the Hearing Officer released his decision. For the three counts he imposed penalties of 16hours, 40 and 8 hours off respectively.
Constable McClory appealed these dispositions to the Hamilton-Wentworth RegionalPolice Services Board (the “Board”). That appeal was heard on February 17, 1997.
By way of a decision dated March 19, 1997 the Board upheld all three convictions andtwo of the penalties (forfeitures of 16 and 8 hours time off). The Board reduced thepenalty for the second finding of discreditable conduct from forfeiture of 40 hours off to
It is these matters which are the subject of this appeal.
Appellant’s Position
Mr. Allan, on behalf of Constable McClory makes a number of submissions. In summary, he argues that:
The Hearing Officer violated section 60(8) of the Police Services Act (now section69(13)) by communicating directly with the prosecutor’s counsel in the absence of the officer’s representative, thus giving rise to a reasonable apprehension of bias.
The Hearing Officer violated section 60(9) of the Act (now section 69(14)) by seekinglegal advice from an adviser who was not independent of the parties.
The Hearing Officer was wrong in finding Constable McClory guilty of separatecounts of discreditable conduct and insubordination arising out of events at thepolice station. Mr. Allan suggests that both relate essentially to the same incidentand the two charges are either duplicitous or give rise to a situation of “autrefoisconvict”.
The penalties imposed were excessive because they failed to take into account anumber of mitigating factors including the plea of guilty, work history and personalproblems.
Respondent’s Position
Mr. Watson, on behalf of the Service takes issue with the Appellant’s arguments. Insummary, he suggests that:
The discussion between the Hearing Officer and prosecutor’s counsel was neitherimproper, a violation of the Act nor gave rise to a reasonable apprehension of bias.He argues that the conversation took place prior to the commencement of thehearing, was very brief, dealt with process (as opposed to “subject matter”), and wasdisclosed and placed on the record for the comments of all parties. Further, he notesthat the Hearing Officer did not completely adopt Ms. Vechter’s suggestions.
The advice provided by Mr. Beck was “independent”. He argues that while Ms.Vechter and Mr. Beck may have the same employer, they do not share officelocation, support staff nor is there any suggestion that they discussed the matter inquestion. He argues using the analogy of two lawyers in the same firm, acting forparties adverse in interest, that the preconditions of independence are met in this case.
In the disciplinary context, a single incident can give rise to more than one chargedepending on the nature of the conduct in question. The two charges in this casedealt with separate and distinct aspects of conduct (i.e.insulting language andinsubordination) and therefore questions of duplicity or “autrefois convict” do not apply.
The dispositions imposed for the infractions in this case were well within the accepted range for such matters and the Hearing Officer and Board properlyconsidered all of the relevant principles and factors.
The Law
- At the time of the original disciplinary proceedings, sections 60(8) and (9) of the PoliceServices Act set out the process to be followed by Hearing Officers, both in theircommunication with parties and for obtaining legal advice. It read:
60(8)The person conducting the hearing shall not communicate directly orindirectly in relation to the subject-matter of the hearing with any person orperson’s counsel or representative, unless the police officer andprosecutor receive notice and have an opportunity to participate. (9) However, the person conducting the hearing make seek legal advicefrom an adviser independent of the police officer and the prosecutor, andin that case the nature of the advice shall be communicated to them so that they may make submissions as to the law.
These provisions were slightly modified with the proclamation of section 35 of the Police Services Amendment Act, 1997, S.O. 1997, c. 8 on November 27, 1997.
The corresponding sections of the Act now read:
69(13) The person conducting the hearing shall not communicate directlyor indirectly in relation to the subject-matter of the hearing with any personor person’s counsel or agent, unless the parties receive notice and havean opportunity to participate. (14) However, the person conducting the hearing may seek legal advicefrom an advisor independent of the parties, and in that case the nature of the advice shall be communicated to them so that they may makesubmissions as to the law.
- Essentially, the provisions remain the same.
Preliminary Motion
At the commencement of these proceedings Mr. Watson brought a motion pursuant tosection 63(2) of the Act (now 70(5)) to receive new or additional evidence. This proposed evidence consisted of an affidavit prepared by Mr. David Beck setting outdetails of his working relationship with Ms. Laurie Vechter.
This motion was heard on November 14, 1997. After hearing arguments, we concludedthis new evidence would not be received. It was our view that this information did not meet the test set out in Williams and Ontario Provincial Police (June 5, 1995, OCCPS).Specifically, we concluded that the information in question could have been adduced atthe original hearing with due diligence, but even if it had it been available would notlikely have affected the result.
As well, we were satisfied that the transcript, reasons and filed material provided a sufficiently complete record to permit us to reach a decision.
Decision
In Ontario, the process for disciplining police officers is found in the Police Services Act, R.S.O. 1990, c. P.15 as amended. This scheme is also supplemented by the StatutoryPowers Procedures Act, R.S.O. 1990, Chap. S.22 and principles of fairness.The Chief of Police has primary responsibility for internal disciplinary proceedings. Thisis at a number of levels. The Chief either makes a complaint about the conduct of anofficer or processes a complaint by a member of the public. The Chief determines thenature of the allegation and assesses whether or not it is frivolous, vexatious, made in bad faith or filed in a timely manner.
The Chief decides whether or not an investigation is warranted, directs the conduct of any investigation and assesses the results. The Chief may chose to take no further action, treat the matter as of a minor nature capable of informal resolution or proceed toa formal hearing. At such a hearing, the Chief appoints an officer to lead evidence orprosecute and may either preside over the proceedings or delegate a senior officer toperform the function of Hearing Officer.
The conduct of a hearing is prescribed by section 69 the Act. Clear lines are drawn between the roles and responsibilities of the parties. This is in part, because the hearingmay be the first opportunity for an officer to know the case against him or her andpresent their side of the story in an open forum.
The prosecutor, officer and any public complainant are parties. The Hearing Officer isan independent assessor of the facts. In order to ensure fairness, no party can meetwith the Hearing Officer in the absence of the others. The prosecutor does not act ascounsel or adviser to the Hearing Officer. If the Hearing Officer requires legal advice, heor she is obliged to obtain it from an adviser independent of the parties and then ensurethat such advice is disclosed to all concerned.
These rules are important, but not meant to capture innocuous or incidental contact.McNab and Ontario Provincial Police (28 October, 1997, OCCPS) considered a casewhere a prosecutor had a brief discussion with a Hearing Officer during a recess in the absence of the other parties. At page 6 of that decision, the Commission stated:
Normally, it is inappropriate for a Hearing Officer and one of the parties,particularly the prosecutor, to converse in the absence of opposingcounsel. It is of the utmost importance for the employer, acting as bothprosecutor and decision-maker, to be completely transparent and to dispelany misgivings that the process is not entirely fair. In addition to the impacton the fairness of the proceedings this may also constitute a violation ofsection 60(8) of the Police Services Act.
The discussion in question, consisted of a request for the Hearing Officer to providewritten reasons. The panel found that while this conversation was imprudent it had beenimmediately revealed, placed on the record, and concerned a procedural matter and notthe subject of the hearing. Accordingly, no violation of the Act was found.
How does this compare to the facts of this case? In the words of the Hearing Officer:
Just before 9:00 o’clock this morning I noticed Ms. Vechter walking pastmy doorway and I called out to her and told her I wanted to talk to her briefly about the process in the McClory matter. She immediately told methat she couldn’t discuss anything in relation to the facts of the McClorymatter with me, as she had given advice to the prosecutor, InspectorMullan. I told her that my question has nothing to do with the evidence orfacts relating to the alleged misconduct, but was directly [sic] at the legalprocess which I should follow in relation to a guilty plea where the facts relating to the plea, were not entirely agreed upon between theprosecution and the defence. I asked her whether I could properlyentertain a guilty plea when the facts were not entirely agreed uponbetween the defence and the prosecution. She explained that I couldindeed entertain such a plea, as long as I was satisfied that theinformation in the statement of particulars, which I will have read to theofficer, and to which he pleads guilty, support the misconduct alleged inthe notice of hearing. She explained that once I had read the allegation ofmisconduct and statement of particulars to the officer and he had entered his guilty plea, it would be proper for me to ask the prosecutor for astatement of facts relating to the incident to which the officer had just pledguilty. I said that I understood that, but I asked what steps should be takenonce I invited a response from the defence and learned that the defence did not agree with some of the facts referred to by the prosecutor. Sheexplained that I would merely at that point conduct a trial on the disputedissue. She said it would be proper for me to invite both the prosecutionand defence to call evidence in relation to the fact in dispute and theninvite the usual cross-examination and re-examination of any witnessesthat were called. She explained that I would then make a finding in relationto the disputed fact and based upon my finding, I would either give weightto the fact, or ignore it, in reaching my final decision. I thanked her andshe left my office.1
- When the Hearing Officer was requested to step down because of a potential violationof the Act giving rise to a reasonable apprehension of bias, he sought legal advice.Again, in his words:
I told you [Mr. Allan] and Inspector Mullan that I was going to seekindependent legal advice on this issue and ask whether it was convenient for both of you to reconvene at 2:00 today and you said it was. I thencalled Mr. David Beck of the Regional Legal Services department andoutlined the situation to him. It was his view, after hearing all the detailssurrounding this issue, that I shouldn’t remove myself from this matterunless I was convinced that there was a reasonable apprehension of bias.He suggested that I put all of the facts surrounding this issue on the recordas I have just done and then invite submissions by both the prosecutionand defence and I’m going to do that but prior to inviting thosesubmissions I am also going to make you both aware of the fact that, in relation to the suggestion that the legislation has been breached by whathas transpired, it’s Mr. Beck’s legal opinion, as I understand it conveyed[sic] to me, that Section 60 subsection 8 of the Police Services Act has notbeen breached, as I did not discuss anything to do with the subject matter of the hearing, that section was not breached. His view, his legal opinion, as I understand it, in relation to subsection 9 is that this is not a prohibition section, in as much as it talks about the person conducting the hearing, quote “may seek legal advice” and goes on to suggest who that legal advice should be obtained from, but it doesn’t outline any prohibition. So far as I understand his legal advice in the technical sense, he doesn’t see that there has been any breach of any legislation. The prohibition section, as I understand it, is subsection 8 which I did not breach, as I didn’t discuss the subject matter. 2
Mr. Allan then raised the concern that the Hearing Officer should not have sought legal advice from Mr. Beck as he was not a “an adviser independent of the parties” as required by the Act.
Mr. Watson suggests that the original discussion did not contravene section 69(13). He argues that the conversation took place prior to the commencement of the actual hearing and is thus not captured by the provision. In this regard he refers to Khan v. Ontario College of Physicians & Surgeons (1992), 9.O.R. (3d) 641 (Ont. C.A.). That case concerned Counsel to the Discipline Committee of the College of Physicians and Surgeons of Ontario reviewing draft reasons following the conclusion of a hearing.
We do not accept this argument. First, while evidence may not have been yet called, this disciplinary proceeding had been well underway for almost a year with the parties appearing before the Hearing Officer on several occasions. It was far from concluded. Even if this were not the case, Ms. Vechter was counsel to the prosecutor and not Committee Counsel or counsel to the Hearing Officer as in Khan.
Mr. Watson also argues that the advice provided was with respect to process and not directed at the “subject-matter of the hearing”. Clearly, unlike McNab, this was more than a request by one of the parties for written reasons. This was a situation where the Hearing Officer directly solicited advice from counsel to one party on the manner in which he should conduct his hearing. Certain aspects of this were later the subject of dispute between the parties.
Leaving aside common law notions of apprehension of bias, on the face of it, the discussion contravened section 69(13) of the Act. The brevity of the conversation, the fact of disclosure, the subsequent opportunity to make submissions or the fact that the Hearing Officer did not completely follow the advice offered does not cure the defect.
Further, in our view the subsequent contact with Mr. Beck was problematic. Ms. Vechter and Mr. Beck are both employed by the Legal Services Department of the Regional Municipality of Hamilton-Wentworth. While they may not share offices, files, support staff or confidences, they both serve a common client: the Hamilton - Wentworth Regional Police Service.
It is hard to see how it is possible to suggest that Mr. Beck is independent of a Respondent to whom he provides legal advice during the course of his employment. Indeed, just a few months prior to this event Mr. Beck appeared before this Commission on behalf of the Respondent in Drennan and Hamilton - Wentworth Regional Police Service (August 6, 1996, OCCPS). The Appellant in that case was also represented by Mr. Allan.
Given the importance of ensuring both fairness and the appearance of fairness in disciplinary process we must conclude that the subsequent request for legal advice did not meet the requirements of section 69(14) of the Act.
For these reasons, we do not believe that the convictions and dispositions can stand. Accordingly, we revoke the decisions. Given the seriousness of the allegations, we remit the matter back to the Chief of Police for assignment of a new Hearing Officer to reconsider the charges.
DATED THIS 22nd DAY OF MAY 1998.
Murray W. Chitra Bob Saracino Chair, OCCPS Member, OCCPS