Sergeant Ronald Delano v. Niagara Regional Police Service, 1998 CanLII 27138

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

SERGEANT RONALD DELANO

Appellant

-and-

NIAGARA REGIONAL POLICE SERVICE

Respondent

DECISION

Panel: Murray W. Chitra, Chair G. Douglas Smith, Member

Hearing Date: October 28, 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 G. Douglas Smith, Member

Appearances:

Michael Pratt, Administrator, Niagara Region Police Association Inspector Ian Fiddes, Niagara Regional Police Service

Hearing Date: October 28, 1998

1. This is an appeal from a penalty of dismissal (unless resignation within seven days) imposed following a finding of seven counts of misconduct against Sergeant Ronald Delano.

Background:

2. Ronald Delano started employment with the Niagara Regional Police Service (the “Service”) on March 16, 1970. He was promoted to the rank of sergeant on April 1, 1990. At the time of events giving rise to these proceedings he was forty seven years old and assigned to uniform patrol duties with “A” Platoon, 32 Division, in Port Colborne.

The Stevens Shotgun

3. In the spring of 1996, Mr. George Phillips, an 82 year old resident of Port Colbourne had a shotgun that he wished to have destroyed. His daughter, Mrs. Merle Busch called the local office of the Service and spoke to the clerk/receptionist, Ms. Carolyn Miller. Ms. Miller wrote this information on a piece of paper and gave it to Sergeant Delano.

4. Sergeant Delano went to Mr. Phillips’ residence and took possession of a 12 gauge Stevens shotgun in a green canvas case. He also received five knives.

5. Sergeant Delano brought the items to the Port Colborne office and put them in his personal locker. He did not place them in the Service’s property system as required by General Order OPSs-009 section 3.3. Sergeant Delano then told Carolyn Miller that he handled the call.

6. During the next several weeks, the shotgun and knives remained in Sergeant Delano’s locker. A number of officers on “A” platoon became aware of this and formed the opinion that the items should have been placed into the Niagara Regional Police property system.

7. On Tuesday, May 28, 1996, Sergeant Delano was on leave, but went into work. Acting Inspector MacLeod called him into his office and asked about rumors he had heard about improperly stored firearms. Sergeant Delano responded by indicating that the rumors must concern two guns that he had in his locker. He stated that they were his and that he had permission from Inspector Gill to store them there while he was on holidays. Acting Inspector MacLeod directed Sergeant Delano to remove the weapons.

8. Later the same day, members of “A” Platoon asked Acting Inspector MacLeod to attend their briefing. At that meeting various officers outlined what they had observed and their belief that the property in Sergeant Delano’s locker was not his own but belonged in the Service’s property system. They related seeing a note in Carolyn Miller’s handwriting.

9. Acting Inspector MacLeod notified Acting Superintendent, K.R. Davidson, and initiated an investigation. That same evening, Mr. Phillips was contacted. He confirmed that he had in fact had turned over a shotgun and knives to a police officer. His description of the gun case and cleaning rod matched those seen by Constable McNeil, Constable White and Constable Mattison in Sergeant Delano’s locker.

10. Later that evening, Acting Inspector MacLeod and Acting Superintendent K.R. Davidson went to Sergeant Delano’s home. Sergeant Delano turned over to them a Stevens 12 gauge shotgun and cleaning rod in a green canvas case.

11. Sergeant Delano admitted receiving the property from a man known as “George” who lived in Port Colborne. He stated that George told him that if he wanted it, it was his. Sergeant Delano advised that the knives were still in his locker and that he would turn them over in the morning. The following day, Sergeant Delano surrendered five knives to Sergeant Smyth.

12. On May 30, 1996 an article appeared in the Niagara Falls Review, a local newspaper, indicating that a sergeant with the Service was being investigated for keeping weapons in his private care instead of following proper storage procedures. This article made reference to the fact that in 1988 the Colter Inquiry uncovered instances of improper storage of weapons.

The Spyderco Knife

13. On April 14, 1996, a variety store in Port Colborne was robbed. A 17 year old young offender named J.T. was arrested and charged with robbery.

14. The next morning, another young offender named T.E. was arrested and charged with the same offence. At the time of his arrest T.E. had in his possession a “Spyderco” folding knife that belonged to his co-accused, J.T.

15. T.E. was transported to the Port Colborne office where he was held in a cell and although he was searched, the knife was not found. The two young offenders were kept in separate cells in Port Colborne and then transported to Welland where they remained apart awaiting transport to St. Catharines for bail hearings.

16. At approximately 6:30 p.m. on April 16, 1996, Constable Michael Wagner and Constable Brian Fisher were assigned to take the two youths to court. Enroute, T.E. gave the knife to J.T. When they arrived at the booking area, J.T. told Constable Wagner that he had a knife in his coat pocket. Constable Wagner took possession of the knife and explained that he would be turning it over to detectives and reporting the circumstances under which it was found.

17. Upon their return to the Port Colborne office, Constable Wagner was called home due to a family emergency. He gave the knife to Constable Fisher who in turn left it on the desk of Detective Constable Wally Tykoliz. Before he finished for the day Constable Fisher saw Detective Constable Tykoliz and explained that a knife had been seized from J.T. and was on his desk. However, when Detective Constable Tykolitz looked for the knife he could not find it.

18. It turned out that Sergeant Ron Delano had seen the knife on the detective’s desk and taken possession of it. He later advised Detective Constable Tykoliz of this fact and was told to do a property report and turn the knife in. Detective Tykoliz also asked Sergeant Delano to tell Constable Fisher that he had the knife because Constable Fisher was concerned that the knife was not on the desk where he had left it.

19. On Thursday, April 25, 1996, J.T. attended the Port Colborne office and asked for his knife. Detective Constable Tykoliz checked the file for a property report and could not locate one. He talked with Sergeant Delano on the phone and was advised by Delano that he had not yet turned in the knife. Some days later, a copy of a property report written by Sergeant Delano appeared on Detective Constable Tykoliz’s desk.

20. On June 4, 1996, Acting Inspector Murray MacLeod received information that a knife had been taken and not turned into property. He notified Acting Superintendent K.R. Davidson and began an investigation.

21. On Wednesday, June 5, 1996, 50 days after the knife had been seized from J.T., Property Clerk Donna Rose was asked to produce the relevant report. It listed a Spyderco knife as the item seized. Mrs. Rose was asked to produce that knife. She found a Bucklite knife attached to a property report made out by Sergeant Delano. The report indicated that this was the knife seized from J.T.

22. J.T. was brought to the office and interviewed. He explained that his property was a Spyderco folding knife. He did not own a Bucklite knife, nor had he ever seen the knife attached to the report .

23. Acting Superintendent K.R. Davidson and Sergeant Damian Parrent attended the Port Colborne office and took over the investigation.

24. As a result of interviews, they visited the residence of Sergeant Delano. After some discussion, Sergeant Delano turned over a Spyderco folding knife to Acting Superintendent Davidson indicating that this was the weapon that had been seized from the prisoner. Sergeant Delano was cautioned and advised of his right to counsel but was not arrested.

25. On Friday, June 7, 1996, Sergeant Delano was served a summons, requiring him to appear in the Ontario Court of Justice - Provincial Division, to answer to a criminal charge of theft under $5,000 in relation to the Spyderco folding knife. On Thursday, August 21, 1997, Sergeant Delano appeared in Welland before Her Honor Judge T. Vyse. He was arraigned on the charge and entered a plea of guilt. After a reading of facts Sergeant Delano was found guilty.

26. On October 27, 1997 he was given a conditional discharge and placed on probation for twelve months. As well, he was required to make a charitable donation in the amount of $500 to the John Howard Society.

The Hearing:

27. On October 16, 1996 Sergeant Delano was charged with seven employment related offences. These included two counts of corrupt practice, two counts of deceit, and three counts of discreditable conduct.

28. The specific allegations were as follows:

Count 1 Between the 15th day of April 1996 and the 15th day of May 1996, in the City of Port Colborne, Sergeant Ronald Delano did commit CORRUPT PRACTICE, that is to say he attended at the residence of George Phillips at 783 Steele Street, in the City of Port Colborne, and while there received from him a shotgun and a quantity of knives and bayonets and failed to account for or to make a prompt, true return of the property received, in an official capacity contrary to section 1(f)(ii) of the prescribed Code of Conduct of Ontario Regulation 927 and thereby did commit misconduct pursuant to section 56(a) of the Police Services Act and further, in doing so did commit a major offence.

Count 2 On Tuesday, May 28, 1996 Sergeant Ronald Delano did commit the offence of DECEIT, that is to say, he was questioned by Acting Inspector Murray MacLeod as to the truth behind rumours about having weapons in his locker that should be in the Niagara Regional Police Service property system and he willfully or negligently make a false, misleading or inaccurate statement pertaining to official duties contrary to section 1(d)(ii) of the prescribed Code of Conduct …

Count 3 Between the15th day of April 1996 and the 15th day of May 1996, Sergeant Ronald Delano did commit the offence of DISCREDITABLE CONDUCT, that is to say Sergeant Delano acted in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force contrary to section 1(a)(i) of the prescribed Code of Conduct …

Count 4 Between April 13th , 1996 and June 6th , 1996 at the City of Port Colborne, Sergeant Ronald Delano did commit the offence of DISCREDITABLE CONDUCT, that is to say Sergeant Ronald Delano took a knife from the desk of Detective Constable W. Tykoliz and when asked to submit it to the property system, replaced it with another knife and submitted a false official report and did thereby act in a manner likely to bring discredit upon the reputation of the Police Services contrary to section 1(a)(i) of the prescribed Code of Conduct …

Count 5 Between April 13th , 1996 and June 6th , 1996 at the City of Port Colborne, Sergeant Ronald Delano did commit the offence of DECEIT, that is to say Sergeant Ron Delano took a folding knife from the desk of Detective Constable W. Tykoliz and when asked to submit it to the property system, replaced it with another knife, and submitted a false official report and did thereby knowingly make or sign a false statement in an official document or book contrary to section 1(d)(i) of the prescribed Code of Conduct …

Count 6 Between April 13th , 1996 and June 6th , 1996 at the City of Port Colborne, Sergeant Ronald Delano did commit the offence of CORRUPT PRACTICE, that is to say Sergeant Ronald Delano took a folding knife from the desk of Detective Constable W. Tykoliz and when asked to submit to the property system, replaced it with another knife, after falsifying official reports and did thereby fail to account for or make a prompt, true return of property received in an official capacity contrary to section 1(f(ii) of the prescribed Code of Conduct …

Count 7 On Thursday, August 21st , 1997, Sergeant Ronald Delano plead guilty to and was found guilty of the offence of Theft Under $5,000, a summary conviction offence under the Criminal Code (Canada) and did thereby commit the offence of DISCREDITABLE CONDUCT, contrary to section 1(a)(vii) of the prescribed Code of Conduct ….

29. On October 23, 1997 Sergeant Delano appeared before Inspector Vince Bevan (the “Hearing Officer” ) and pled guilty to all seven counts.

30. An agreed statement of facts was read into the record. Several witnesses spoke on behalf of Sergeant Delano concerning his personality, work habits and family life. As well, Sergeant Delano testified on his own behalf.

31. Three exhibits from different medical practitioners were submitted. These included a letter from Doctor G.M. Poulakakis dated January 20, 1997, a note from Doctor F. MacKay dated January 8, 1998 and a report from Doctor A. Belicki dated January 21, 1998.

32. The thrust of these documents was that Sergeant Delano had been suffering from depression for many years. He had been on medication and receiving counseling six to eight times a year since 1994. The suggestion was that this condition may have interfered with his judgment.

33. In his decision, dated February 10, 1998, the Hearing Officer indicated that the primary objectives of discipline under the Police Services Act were to:

• correct misconduct

• deter potential misconduct of a similar nature

• reassure the public that the police service

maintains professional standards

34. In addition, the Hearing Officer determined when assessing penalty the following considerations would apply:

35. public interest

36. seriousness of the misconduct

37. recognition of the seriousness of the misconduct

38. employment history

39. need for deterrence

40. ability to reform or rehabilitate the police officer

41. damages to the reputation of the police service

42. relevant personal circumstances

43. management approach to misconduct in question

44. special economic hardship

45. effect of publicity

46. The Hearing Officer reviewed the exhibits and the testimony of the witnesses. He found that Sergeant Delano's actions were criminal. He concluded that Sergeant Delano had stolen, lied and submitted false documents in attempts to hide his actions. The Hearing Officer found that Sergeant Delano had compromised his credibility as a police officer and was no longer fit to hold that office.

47. The Hearing Officer did not find that the evidence of the doctors or the testimony of the witnesses supported the proposition that Sergeant Delano was suffering from a medical disability at the time he committed the offences. In conclusion, the Hearing Officer found that Sergeant Delano's usefulness as a police officer was "spent" and directed that he be dismissed in seven days unless he resigned before that time.

The Appeal:

37. Sergeant Delano appeals the decision of Superintendent V. Bevan. The basis of his appeal is as follows:

38. The Hearing Officer disregarded the medical evidence and submitted his own opinion.

39. The Hearing Officer ignored the evidence establishing the bizarre behaviour of Sergeant Delano.

40. The Hearing Officer failed to properly consider the penalties suggested on behalf of Sergeant Delano.

41. In support of his argument with respect to the penalty, Mr. Pratt draws our attention to the following cases: Spizziri and Ontario Provincial Police (1988), 2 O.P.R. 799 (OPC), McCoy and Ontario Provincial Police (1989), 2 O.P.R. 832 (OCCPS), Swan and Niagara Regional Police Service (June 7, 1996 disciplinary decision) and Schottlander and Niagara Regional Police Service (June 26, 1996 disciplinary decision).

42. In conclusion, Mr. Pratt suggests that a more appropriate penalty in this case would be a substantial demotion for a period of years.

43. Inspector Fiddes contests these arguments. He asserts that the decision of the Hearing Officer was correct ,thorough and well reasoned. In support of these arguments he brings our attention to Konkle and Niagara Regional Police Service (March 14, 1997, Board of Inquiry), Belisle and Ontario Provincial Police (1985), 2 O.P.R. 634 (OPC), Hinds and Ontario Provincial Police (1990), 2 O.P.R. 880 (OCCPS), Vos and Peel Regional Police Service (1993), 2 O.P.R. 963 (OCCPS), University of Guelph and C.U.P.E. Local 1334 (1996), 1996 CanLII 20395 (ON LA), 59 L.A.C. (4th) 144, Brown and Beatty, “Canadian Labour Arbitration”, 3rd edition, Canada Law Book, at pages 7-85 to 7-86, and Nothing and Ontario Provincial Police (March 15, 1996, OCCPS).

Decision:

41. The facts of the case are straightforward.

42. Sergeant Delano, a senior police officer with twenty six years service took advantage of a 17 year old young offender and the trust of an 82 year old senior citizen. In so doing, Sergeant Delano failed to follow clear Service procedure or file proper reports. He lied to his superior officers and tried to cover up. This deception took place over the course of months. In the end, Sergeant Delano was charged with the criminal offence of theft and found guilty.

43. Sergeant Delano had no prior disciplinary history and his employment record with the Service was otherwise commendable. To his credit, he pled guilty to the criminal charge and subsequent employment related allegations of deceit, discreditable conduct and corrupt practice. Given this acknowledgment of responsibility, the only question for this appeal is the appropriateness of the penalty imposed by the Hearing Officer.

44. It seems self evident that police officers should not steal. See Reilly and Brockville Police Service (May 12, 1997, OCCPS). In this regard, police officers are to be held to a higher standard of conduct than members of the public. Further, police officers are given unique powers to permit them to handle, possess, control and use firearms. As was noted at page 6 of Nothing and Ontario Provincial Police : “The ultimate symbol of the power vested in officers is the license to carry lethal firearms.” It is a license not to be abused.

45. This being said, however, the appropriate penalty must be determined in light of a number of considerations in each case.

46. In Williams and Ontario Provincial Police (1995) 2 O.P.R. 1047 (OCCPS) the Commission identified three key elements to be taken into account. These include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the police force that would occur if the officer remained on the force.

47. There are also other factors which can be relevant, either mitigating or aggravating the penalty depending on the particular misconduct in question. They include the officer's:

48. employment history and experience

49. recognition of the seriousness of the transgression

50. handicap or other relevant personal circumstances

51. Finally, other considerations could include provocation, the need for deterrence and concerns arising from management's approach to the misconduct in question.

52. When imposing penalty it is important to take into account prior disciplinary cases dealing with similar types of misconduct. As the Commission stated in page 615 of its decision in Schofield and Metropolitan Toronto Police (1984), 2 O.P.R. 613 (OPC): "Consistency in the disciplinary process is often the earmark of fairness. The penalty must be consistent with the facts and consistent with similar cases that have been dealt with on earlier occasions."

53. With this in mind we have carefully reviewed the cases referred to us by the Appellant.

54. The first case is Spirizzi and OPP. This case involved a constable with a 17-year unblemished record. Constable Spirizzi was convicted of acting in a manner likely to bring discredit upon the force after he was apprehended outside a Woolco store by a store detective in possession of a cribbage board and pegs for which he had not paid. There was psychiatric evidence to the effect the officer was under significant stress at the time of the incident. At a disciplinary hearing for discreditable conduct, Constable Spirizzi was ordered to resign within seven days or to be summarily dismissed from the force should he fail to do so. On appeal the penalty was modified to reduction in rank for six months giving the mitigating factors of the length of service, unblemished record and mental turmoil at the time of the events in question. The evidence of the psychiatrist was found as an explanation but did not excuse the acts of Constable Spirizzi.

55. The second case is McCoy and OPP. The facts of this case are very similar to the Spirizzi case in that Constable McCoy was convicted of acting in a manner likely to bring discredit upon the force after he was apprehended by a store detective having left a Sears store without paying for a cribbage board and pegs. He was acquitted of a criminal charge of theft. Nevertheless, Constable McCoy was found guilty of discreditable conduct and was ordered to forfeit twenty days vacation leave.

56. Psychiatric evidence was introduced that Constable McCoy at the time of the occurrence had been suffering a fair amount of psychological distress and while in Sears had experienced an overwhelming state of anxiety leading to a state of preoccupation or absent mindedness which could well have affected him in taking the board. It was the psychiatrist's opinion that Constable McCoy did not intend to take the board and pegs without paying for them.

57. It was argued on behalf of Constable McCoy that since the Hearing Officer had accepted the evidence of the psychiatrist for the purposes of sentencing he ought to have accepted the psychiatrist's testimony in the test of determining guilt or innocence and in not so accepting his testimony for that purpose he committed an error at law. As in the Spirizzi case it was found that psychiatric evidence would at best be an explanation for Constable McCoy's conduct and could not be a lawful excuse for the same conduct.

58. We have also reviewed the Swan and Niagara Regional Police Service and Schottlander and Niagara Regional Police Service cases as referred to us by the Appellant. These two cases both involve acts of shoplifting and in our opinion follow closely the decision of Spirizzi and McCoy.

59. It is our view that the present case of Sergeant Delano must be distinguished from the cases referred to us by the Appellant. In each case the conduct of the constables charged was an isolated compulsive act of shoplifting. It is evident, however, that Sergeant Delano's conduct was not an isolated occurrence, but was a series of events over time involving discreditable conduct, corrupt practice and deceit.

60. We concur with the finding of Superintendent Bevan that Sergeant Delano's conduct was an absolute misuse of the position of trust vested in the position of a police officer and in particular an officer with both rank and experience. Sergeant Delano took advantage of either elderly or youthful individuals and then lied and submitted false reports in order to protect himself. These events occurred over a period of three months.

61. Further, the acts in question involved the taking of weapons. Given the findings of the Colter Inquiry these represented transgressions with a particularly offensive resonance to the Niagara Police Service and the public which it serves.

62. The only matter then outstanding is the question of disability. We do not accept the position taken by the Appellant that Superintendent Bevan totally disregarded the medical testimony. In fact, Superintendent Bevan carefully reviewed the letter from Doctor Poulakakis dated January 20, 1997, the note from Doctor MacKay dated January 8, 1998 and the report from Doctor Belicki dated January 21, 1998.

63. We find nothing wrong in the reasoning of Superintendent Bevan nor in the evidentiary weight that he has applied to these documents or the witnesses who spoke to Sergeant Delano’s behavior.

64. It is clear that Sergeant Delano has been affected by depression since 1979. Further, he had been on medication and receiving regular counseling for years before the events in question. There is no suggestion however, that over the course of 17 years since the initial diagnosis, his condition ever prevented him from doing his job, being promoted, or acting in a responsible manner. Indeed, his employment record prior to this event was unblemished.

65. It was certainly open to the Hearing Officer to conclude on the basis of the evidence before him that there was no clear connection between the officer’s long standing treated medical condition and the events which took place during the spring of 1996.

66. For the above reasons the appeal is dismissed.

DATED THIS 4th DAY OF DECEMBER 1998.

Murray W. Chitra G. Douglas Smith Chair, OCCPS Member, OCCPS