ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
CONSTABLE L. TURGEON Appellant
-and-
ONTARIO PROVINCIAL POLICE Respondent
DECISION
Panel: Karlene Hussey, Member Sam Cancilla, Member
Hearing Date: July 15, 1999
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 Hussey, Member Sam Cancilla, Member
Appearances: P. Clinton Nolman, Counsel for the Appellant Inspector Fred C. Hamelink, Counsel for the Respondent
Hearing Date: July 15, 1999
- Constable Turgeon appeals a finding of unlawful or unnecessary exercise of authority contrary to section 1(g)(ii) of the Code of Conduct contained in Regulation 927 of the Revised Regulations of Ontario 1990 as amended (the “Code”). He also appeals the penalty imposed of ten days time.
Background:
Constable Turgeon has been a police officer since 1987 and is a member of the Casselman detachment. On May 9, 1996 at approximately 12:45 a.m. he was on patrol in Nation Township with Constable G. Bonneville in a marked cruiser when they stopped a blue minivan. They both approached the vehicle and Constable Bonneville realized that the driver of the vehicle was a young offender, ET, who was unlawfully at large. Constable Bonneville advised Constable Turgeon of this fact and he asked that ET show his driver’s license, ownership and insurance information. ET replied that he did not have a driver’s license and that the vehicle was stolen. Constable Turgeon asked ET to get out of the vehicle and he did so in the presence of both officers who were on the driver’s side of the vehicle. Constable Turgeon then pushed ET against the side of the van and his head and body hit the side of the van.
ET was placed in handcuffs and taken to the rear seat of the cruiser. The two officers sat in the cruiser with Constable Turgeon in the driver’s seat and Constable Bonneville in the passenger’s seat. They waited for a tow-truck to remove the stolen vehicle. During that time Constable Turgeon asked ET whether he had stolen a vehicle, which belonged to a friend of his, and suggested that if ET did not admit to it he would be taken to an isolated area and made to talk.
Shortly after, the officers drove ET to the detachment and took him to the interview room. ET removed his jacket and Constable Turgeon noticed he was wearing a gold bracelet. He questioned ET about the ownership of the bracelet and whether it was stolen. ET replied that it was not stolen whereupon Constable Turgeon hit him on the face. ET remarked that he would tell his lawyer about the treatment he had received from the officer. Constable Bonneville was present in the interview room during this time.
On May 9, Constable Bonneville spoke to Constable Herbert, an officer with whom he had worked for a year and a half, about the events of the previous night. Constable Herbert advised Constable Bonneville to speak to his immediate supervisor, Sergeant G. Couture, about the matter.
On May 14, Constable Bonneville took the appropriate step and spoke to Sergeant G. Couture and advised him of what had occurred. Sergeant Couture told Constable Bonneville that the matter was serious and warranted investigation. On the same day, Sergeant Couture arranged for Constable Bonneville to speak to Detachment Commander Staff Sergeant Yves Dupuis about the matter. In all of these meetings Constable Bonneville was very upset and hesitant to speak about the events of May 8th.
On May 15 Staff Sergeant Dupuis advised Constable Turgeon that an internal investigation would be initiated. Constable Turgeon replied “that all he had done was to give ET a small slap across the face open handed”. On November 8, 1996 Constable Turgeon was charged under section 1(g)(ii) of the Code.
The particulars of the Allegations are as follows:
On May 9, 1996 at approximately 0056 hours, while on duty, you came in contact with 1ET, and during that contact exerted unnecessary force on him. The unnecessary force exerted on ET, included but is not limited to pushing him against a van causing him to hit his head, threatening to take him to a secluded area to make him talk and hitting him in the face.
A hearing was convened on March 9, 1998 at which Superintendent R. J. Fitches (the “Hearing Officer”) presided. Several witnesses were called including Constable Turgeon, Constable Bonneville, Constable Herbert, Sergeant Couture, Staff Sergeant Dupuis and ET.
The Hearing Officer found Constable Turgeon used overly severe and unnecessary violence against ET when he pushed him on the side of the van. He relied on the evidence of Constable Bonneville who testified that ET was cooperative at all times. The Hearing Officer found Constable Bonneville a highly credible witness, with no ulterior motive, who was worried and reluctant to inform on a co-worker and that this was substantiated by the testimony of his superiors and co-workers.
With regard to Constable Turgeon’s statement about taking ET to the bush if he did not confess to the theft of his friend’s car, the Hearing Officer found:
…this is as close to an actual threat, both from the standpoint of the speaker and the listener as one can get.
In spite of the seriousness of what Provincial Constable Turgeon did in this instance I am not convinced that Mr. T. believed that Provincial Constable Turgeon and, similarly, I am not convinced that Provincial Constable Turgeon actually meant to carry out what he said…
Although I am not convinced these actions could be construed as exerting unnecessary violence upon a prisoner or other person, I am convinced that his action could be interpreted as discreditable.
Although Constable Turgeon admitted to hitting ET on the face when he spoke to Staff Sergeant Dupuis on May 15, 1996, in his testimony Constable Turgeon characterized this as a push on the face because he was concerned for his safety and that of his partner. He testified that he did so to prevent ET from getting up and to keep control of ET who was verbally abusive.
Constable Bonneville, who was the only other police officer present, recalled that ET exhibited no signs of aggression. He testified that Constable Turgeon asked ET if he had stolen the gold bracelet he was wearing. ET replied that it was not stolen and he was then hit on the face by Constable Turgeon. Constable Bonneville recalled that ET started to cry and asked why he was being treated in that manner. Constable Bonneville testified that the slap was spontaneous and unprovoked.
The Hearing Officer concluded that Constable Turgeon struck ET on his face and that this act was not precipitated by any overt action on ET’s part.
The Appeal:
Constable Turgeon appeals the disciplinary decision. On his behalf Mr. Nolman makes the following arguments:
The misconduct was not established on clear and convincing evidence.
In rendering his decision the Hearing Officer made jurisdictional errors that led to the appearance of potential bias.
The penalty imposed was excessive.
In support of his argument counsel for the Appellant relied on OPP and Constable G.R. Delguidice, November 30, 1994 and Sorger v. Bank of Nova Scotia (1998), 1998 CanLII 3715 (ON CA), 39 O.R. (3rd) 1 (C.A.).
Decision:
In his oral submissions, Mr. Nolman argued that the Hearing Officer did not take into account the fact that ET was unlawfully at large and stated that the force used by Constable Turgeon was appropriate and justified in the circumstances and in accordance with the training in use of force given to a police officer. Counsel submitted that there was insufficient evidence to lead the Hearing Officer to conclude that the force used was excessive.
We find that the Hearing Officer considered the evidence and made clear findings of fact that there was no resistance from ET and that he was complying with Constable Turgeon’s request when asked to exit the van and to do as he was directed. The Hearing Officer also made clear findings of credibility and accepted the evidence of Constable Bonneville in this regard.
In addition, the Hearing Officer considered the principles involved in the use of force response options and concluded that, in this instance, Constable Turgeon employed force, which was excessive in the circumstance. We are unable to find that the Hearing Officer made any errors in his findings regarding the allegation of excessive force when ET was pushed on the van.
With respect to the allegations that Constable Turgeon threatened to take ET to the bush and make him talk, the Hearing Officer concluded that Constable Turgeon had not intended to do so and ET testified that he did not feel threatened by his words. The Hearing Officer made no findings under section 1(g)(ii) of the Code but observed that this might constitute discreditable conduct. Counsel for the Appellant argued that Constable Turgeon had not been charged with discreditable conduct but only with
excessive use of force under section 1(g)(ii) of the Code.
We note that the Hearing Officer made no findings of discreditable conduct but rather he commented on a possible result of Constable Turgeon’s actions. It is unclear whether the Appellant is asserting that a lack of finding on this allegation would constitute an error. If that is the case we do not agree. In our view, it is unnecessary to substantiate all the allegations in order to establish Constable Turgeon’s breach of section 1(g)(ii).
We are also unable to conclude that the Hearing Officer made any errors in his finding that Constable Turgeon used excessive force when he slapped ET in the interview room. The Hearing Officer accepted Constable Bonneville’s evidence over that of Constable Turgeon’s and he also made clear findings of fact that the use of force in this instance was unnecessary.
Counsel submitted that the Hearing Officer used words that would give rise to an apprehension of bias when the Hearing Officer relied on ET’s testimony that he was a victim of parental violence. He argued that there was no proof that this had happened and that the bias in the Hearing Officer’s conclusion led to the imposition of a severe penalty. In support of this argument Mr. Nolman cited Sorger supra.
In his decision the Hearing Officer stated:
It is unfortunate indeed that a Police Officer would take it upon himself to behave in a way that this young man’s father behaved …One would like to think that Police Officers, being professionals who are trained to help people, would be hard pressed to behave in the same way that a potentially abusive parent would.
Counsel for the Respondent argued, and we fully agree, that these words by the Hearing Officer in no way reflect any pre-judgment of a material issue nor any pre-disposition against Constable Turgeon so as to create a reasonable apprehension of bias. At no time during the hearing was Constable Turgeon prevented from presenting his case nor was there any one-sided intervention by the Hearing Officer during the proceedings. Superintendent Fitches’ decision reveals careful analysis of the evidence presented, consideration of the inconsistencies and clear determination of matters of credibility.
We are therefore unable to conclude that Constable Turgeon has been denied a fair hearing based on those brief and passing observations by the Hearing Officer when he rendered his decision.
On the issue of penalty, it important to take into account prior disciplinary cases dealing with similar types of misconduct to ensure consistency. There are other factors, which can be relevant either mitigating or aggravating the penalty, depending on the particular conduct in question. These include provocation, the need for deterrence and concerns arising from management’s approach to the misconduct in question.
In his decision the Hearing Officer considered the cases submitted at the penalty hearing including Delguidice supra. He also considered the need for specific deterrence, Constable Turgeon’s lack of remorse and lack of regard for his supervisors and the fact that provocation was not an issue. We agree with the Hearing Officer’s finding that Constable Turgeon showed no remorse. We do not consider the penalty excessive. In our view it is well within the range of penalties in similar cases. The Appellant has not demonstrated that it is otherwise and therefore we see no reason to alter the penalty imposed.
For these reasons the decision of the Hearing Officer is upheld and the appeal is hereby dismissed.
DATED THIS 5TH DAY OF NOVEMBER, 1999.
Karlene Hussey Sam Cancilla
Member, OCCPS Member, OCCPS