ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE ARTHUR BYRON STERLING
Appellant
-and-
HAMILTON-WENTWORTH REGIONAL POLICE SERVICE
Respondent
DECISION
Panel: G. Douglas Smith, Member Chares B. Rycroft, Member
Hearing Date: Wednesday April 28, l999
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:
G. Douglas Smith, Member Chares B. Rycroft, Member
Appearances:
Brad Boyce, Agent for the Appellant Inspector John Daniels, Agent for the Respondent Laurie Vechter, Solicitor to the Agent for the Respondent
Hearing Date: Wednesday April 28, l999
This is an appeal from two convictions for neglect of duty made against Constable Arthur Byron Sterling by Deputy Chief Tom Marler (the “Hearing Officer”) on September 17, 1998 contrary to sections 1(c)(ii) and 1(c)(iii) of the Code of Conduct contained in Regulation 927 R.R.O. 1990 as amended (the “Code”).
Further it is an appeal from conviction on a charge of deceit made against the Constable contrary to section 1(d)(i) of the Code.
Background:
On October 1, 7, 16, 26, 1996 Constable Sterling made Canadian Police Information Centre (CPIC) queries on E.J. using the facilities of the Hamilton-Wentworth Regional Police Service (the “Service”).
E.J. was a family acquaintance of Constable Sterling who was part owner of N. Salon, a hairstyling shop, where the officer had his hair cut. The two also played basketball together on occasion. E.J. had an outstanding warrant for failure to appear.
On October 12, 1996 Constable Sterling performed a CPIC query on K.S. This individual was an immediate relative.
Finally, on January 3, 1997 Constable Sterling performed a CPIC query on N.G. He was also a part owner of N. Salon.
In late 1996 Constable Sterling was involved in the investigation of a break and enter at a residence of a woman on Queen Street South. They apparently developed a personal relationship. He stayed overnight on November 26, 1996. Two days later, during normal working hours, Constable Sterling visited the woman’s residence for a “follow-up call”.
According to the dispatcher, Constable Sterling booked on the follow-up call at approximately 2153 hours and cleared at 2310 hours. Constable Sterling subsequently submitted a three line report accompanied by a six item supplementary property description report.
Constable Sterling’s notebook contains entries that he booked onto the call in issue at 2230 hours and cleared at 2315 hours, i.e. a total of 45 minutes. There were no other explanations in his notebook. The computer aided dispatch printout however confirmed that Constable Sterling was at the residence from 2153 hours to 2310 hours, a total of 77 minutes.
The Allegations:
On January 19, 1998 Constable Sterling was charged with nine disciplinary offences contrary to the Code. These consisted of two of discreditable conduct pursuant to section 1(a)(i); four of neglect of duty pursuant to section 1(c)(i); one of insubordination pursuant to section 1(b)(ii) and two of deceit contrary to section 1(d)(i) of the Code.
Subsequently, four other charges were laid against Constable Sterling. These charges consisted of two counts of discreditable conduct contrary to section 1(a)(i) of the Code and two of neglect of duty as specified in section 1(c)(i).
The Hearing:
The disciplinary hearing took place over ten days commencing on April 29, 1998 and continuing on May 19, May 25, May 26, May 28 and June 8, 1998. These hearing dates considered the first set of nine charges laid against Constable Sterling. On June 16, June 25, August 20 and September 17, 1998 the hearing continued on the further set of the four charges.
Constable Sterling entered a plea of not guilty to all charges.
At the conclusion of the disciplinary hearing the Hearing Officer declared a non-suit on the four further charges. With respect to the first set of nine charges, Constable Sterling was found guilty of two counts of neglect of duty, and one count of deceit. The particulars of these charges are as follows:
On October 1, 7, 16 and 26 of 1996, you did perform CPIC queries on E.J. using the CPIC facilities of the Hamilton-Wentworth Regional Police Service. There was no employment related reason for conducting these CPIC queries, and no incident report or intelligence information was submitted in relation to the party queried. This conduct is contrary to the provisions of the CPIC Information Handling and Dissemination Policy and Procedure 5.2.02 which provides that the access to and use of CPIC information shall only be for activities authorized by the Hamilton-Wentworth Regional Police Service.
Furthermore on the 12th of October, 1996, you did perform a CPIC query on one K.S. using the CPIC facilities of the Hamilton-Wentworth Regional Police Service. There was no employment related or authorized reason for conducting this CPIC query, and no incident report or intelligence information was submitted in relation to the party queried. This conduct is contrary to the provisions of the CPIC Information Handling and Dissemination Policy and Procedure 5.2.02 which provides that the access to and use of CPIC information shall only be for activities authorized by the Hamilton-Wentworth Regional Police Service.
And furthermore, on January 3, 1997, you did perform a CPIC query on N.G. using the CPIC facilities of the Hamilton-Wentworth Regional Police Service. There was no employment related or authorized reason for conducting this CPIC query, and no incident report or intelligence information was submitted in relation to the party queried. This conduct is contrary to the provisions of the CPIC Information Handling and Dissemination Policy and Procedure 5.2.02 which provides that the access to and use of CPIC information shall only be for activities authorized by the Hamilton-Wentworth Regional Police Service.
On or about the 28th of November 1996 you attended at a residence at ***Queen Street South in Hamilton, reporting to dispatch that you were conducting a B & E follow-up. Previous information indicates you had attended this address on November 22, 1996, November 26, 1996 and twice on November 28, 1996. On the 29th of November 1996, you booked on to the follow-up call at approximately 2153 hours and cleared at 2310 hours. Subsequently, you submitted a three line follow-up report accompanied by a six item supplementary property description report. Both reports were dated November 29, 1996. Based on the information obtained by you, and the duties required to be performed to obtain such information, it was not necessary to spend this length of time at that location for employment related purposes.
On the 28th of November 1996, you booked on to a B & E follow-up call at *** Queen Street South in Hamilton at 2153 hours. You cleared the call at 2310 hours. Your service notebook contains entries by you that you booked onto the call in issue at 2230 hours and cleared the call at 2315 hours. You thus made false entries in your notebook in relation to the time spent on the call.
- On the finding of guilt with respect to first conviction for neglect of duty the Hearing Officer issued a penalty of two days loss of pay (16 hours). On the other two convictions Constable Sterling was issued a reprimand
Motion:
- At the commencement of the appeal Mr. Boyce, agent for the Appellant, sought the Commission’s permission to introduce three documents. These consisted of:
- An affidavit sworn by Joanne Engelhardt, a communications dispatcher/call taker working for the Service. This affidavit was sworn on April 27, 1999.
• An affidavit sworn by the Appellant on April 26, 1999.
• An affidavit sworn by Constable Rick Arnold on April 27, 1999.
Mr. Boyce argued that the Hearing Officer introduced his own evidence with respect to the operation of the CPIC system and the proper procedure for following up on break and enters. Mr. Boyce further argued that the conclusions of the Hearing Officer were based on his own knowledge which was incomplete.
He stated that the introduction of the affidavits will assist us by providing a proper picture of procedures.
Mr. Boyce further argued that he could not submit evidence at the hearing to refute the Hearing Officer’s conclusions because the Appellant did not know that the Hearing Officer would be calling on his own experiences until his decision was rendered. Mr. Boyce acknowledged that the Hearing Officer can call on his own experiences but such knowledge should not fill in a gap in the evidence.
Inspector Daniels argued that the affidavit should not be admitted because the Hearing Officer drew reasonable inferences based on his experiences which he is clearly entitled to do. In support of his argument, Inspector Daniels referred us to Allen and Hamilton-Wentworth Regional Police Service (1995), 2 O.P.R. 1001 (OCCPS) in which this Commission concluded at page 1007:
“Further, we agree that a Hearing Officer is free to interpret evidence and make factual findings using the benefit of his or her experience. However, it is evident that this must not involve the taking into account of extraneous considerations.”
Inspector Daniels also referred us to Palmer v. Her Majesty the Queen (1980), 1979 CanLII 8 (SCC), 1 S.C.R. 759 (S.C.C.). Inspector Daniels argued that introduced evidence must meet the standards set out in Palmer in that:
Evidence should generally not be admitted by due diligence that could have been introduced at trial.
The evidence must be relevant in that it bears upon a decisive or potentially decisive issue.
The evidence must be credible.
The evidence must be such that if believed it could be taken with other evidence deduce to trial, reasonably expected to have effected the result.
Inspector Daniels argued that the evidence sought to be introduced by means of the affidavits did not meet the standards as set forth in Palmer.
Inspector Daniels further argued that affidavit evidence does not allow the Respondent the opportunity to properly test and cross examine the deponents and as such should not be admitted. Finally, Inspector Daniels argued that even if the evidence were introduced that it would not change the Hearing Officer’s decision.
Decision on Motion:
Subsection 79(5) of the Act provides that appeals to the Commission are normally to be heard on record. However, the Commission also has the authority to “receive new or additional evidence as it considers just”.
The Act unfortunately does not give guidance as to the factors that we are to take into account when attempting to assess whether or not it would be just to receive new or fresh evidence. In this regard the decision of the Supreme Court of Canada in Palmer is useful. It should be noted however, the decision in Palmer did not apply specifically to labour law.
The Palmer decision dealt with new or fresh evidence in the context of criminal matters. That being said, it provides some helpful principles. On page 775 of his decision Mr. Justice McIntire stated that:
“the evidence should not generally not be admitted if, by due diligence, it could have been adduced at trial provided this general principle will not be applied as strictly in criminal cases as civil cases”.
With this in mind we do have some sympathy with the position taken by Mr. Boyce in that the Hearing Officer appears not only to have used his experience to evaluate evidence but in fact “filled in the gap” by applying his experience in investigating of break and enters.
Furthermore, we accept the position taken by Mr. Boyce that it was not possible for the Appellant to call evidence to refute findings made by the Hearing Officer from his personal experiences because such findings were not made during the course of the hearing.
Consequently, we are prepared to allow the affidavit evidence of Constable Rick Arnold with respect to the follow-up procedures for break and enters. Similarly, we are prepared to allow the affidavit evidence of the Appellant Constable Sterling on the same point. We are not prepared to introduce the affidavit evidence of Joanne Englehardt as it has no bearing on the follow-up procedures.
For the record, we were prepared to adjourn the proceedings to afford Inspector Daniels the opportunity to cross examine Constables Arnold and Sterling. However, Inspector Daniels declined our offer in this regard. The fact that this evidence has not been tested by cross-examination will be a factor to be taken in account when assessing its weight.
Appellant’s Position on Appeal:
Mr. Boyce, on behalf of Constable Sterling, made a number of submissions and arguments with respect to the Hearing Officer’s findings.
Mr. Boyce argued that the first neglect of duty charge is composed of three components which all must be proven in order to support a conviction. Mr. Boyce argued that the essence of this charge was that there was no employment related reason for conducting the CPIC inquiries. This is purported to be contrary to the provisions of the CPIC Information Handling and Dissemination Policy and Procedure 5.2.02.
With respect to the querying of E.J., the Appellant argues that the Hearing Officer concluded that the Appellant was guilty of neglect of duty for not attending N. Hairstyles in an attempt to arrest E.J. particularly when he knew that E.J. worked there and there was a likelihood E.J. would be on the premises. The Appellant argued that the Hearing Officer erred in concluding that the Appellant was guilty of neglect of duty in general terms rather than as alleged i.e. the misuse of CPIC inquiries.
Mr. Boyce further argued that Constable Sterling provided significant oral testimony with respect to the CPIC inquiry of K.S. Constable Sterling indicated that he conducted the CPIC check to determine whether K.S. was a suspended driver. He was not. This caused the Hearing Officer to question the officer’s explanation.
Mr. Boyce argued that it was irrelevant whether K.S. was a suspended driver or not, as at no time did Constable Sterling ever indicate he was. He testified that he conducted the CPIC inquiry to see if K.S. was indeed suspended. Mr. Boyce argued that the issue here is whether or not Constable Sterling violated the Handling and Dissemination Policy and Procedure, with the onus being upon the prosecution to prove that such policy had been violated. Therefore, Mr. Boyce argued the conclusion of the Hearing Officer was in error as they were unsupported by evidence and the Hearing Officer failed to consider whether the issue had been proved on clear and convincing evidence.
The final component of the first count was the CPIC inquiry of N.G. The Appellant argued that the Hearing Officer went off on a tangent rather than focussing on the real issue of whether the inquiry was for employment related purposes. Mr. Boyce argued that the evidence clearly showed that N.G.’s car was stopped for a routine check and a CPIC query was made which was normal in the circumstances. It was suggested that the Hearing Officer based his decision on an inaccurate recollection or knowledge of how CPIC inquiries were to take place under these circumstances
With respect to the second charge of neglect of duty, Mr. Boyce argued once again that the Hearing Officer erred in relying on his recollection or experience with follow-up investigations. Furthermore, it was argued that the Hearing Officer’s assumptions were not put to the defense in advance in order to give the defense an opportunity to correct any inaccuracies. Consequently, natural justice was denied to the Appellant.
With respect to the allegation of deceit, Mr. Boyce argued that the Hearing Officer erred by finding Constable Sterling guilty of deceit on a matter that was merely technical in nature. It was Mr. Boyce’s contention that there is a systemic problem with record keeping with the Service arising from conflicting policies. Furthermore, it was argued that the Hearing Officer erred because there was no evidence of intent on behalf of Constable Sterling to deceive.
In his arguments the Appellant drew our attention to a number of cases including Graham and Ontario Provincial Police (1985), 2 O.P.R. 663 (OCP) and Diamond and Ontario Provincial Police (1985), 2 O.P.R. 678 (OPC). These two cases in particular dealt with the issues of intent. In Graham at page 663 the Commission states: “intent is a necessary ingredient for a charge of deceit and this has not been shown”.
Our attention was also drawn by the Appellant to Ridge and Toronto Police Service (1995), 2 O.P.R. 1024 (OCCPS). Particularly, the headnote at page 1025 which reads:
“The evidence concerning the appellant’s professional reputation must be considered … Officers are required to know the laws they enforce but they will always face technical issues which they will not consider without sufficient insight from time to time. The appellant felt he had met the requirements stipulated in the administrative procedure. His understanding was shared by other officers. Since this incident occurred the wording of the procedures has been extensively modified and the crown’s duty to disclose evidence has been clarified by the Supreme Court of Canada. The appellant did not conscientiously fail to meet his obligations but relied upon police procedures … This is insufficient evidence to support the findings of misconduct.”
The Appellant argues the practice and training for notetaking used by police officers in Hamilton-Wentworth has changed because of the advent of Computer Aided Dispatch (CAD) and the Mobile Display Terminal (MDT) and is consistent of the Appellant’s view of how notes are taken rather than the Hearing Officer’s interpretation of the notetaking policy.
Finally, the Appellant drew our attention to Weise and Ontario Provincial Police (1982), O.P.R. 526 (OPC). This case also dealt with the element of intention. The headnote at page 527 reads:
“Upon a literal reading of the Code there does not appear to be any necessity of demonstrating an intent to deceive on the part of an officer making the false entry. It would seem that a conviction would follow upon the prosecution’s demonstrating that the officer made the entry and knew the entry to be false. In the normal course, the Commission would not have any difficulty with such a contention but in this situation the rationale would lead to a patently foolish result.”
Mr. Boyce argued that Constable Sterling was doing only what other patrol officers were doing and would certainly lead to a patently foolish result or an absurdity if Constable Sterling were to be found guilty of deceit by doing exactly what he was trained to do and what all other police officers are trained to do and are doing without the hardship of charges.
In conclusion, Mr. Boyce sought all convictions to be quashed.
Respondent’s Position:
Inspector Daniels, on behalf of the Respondent, argued that it was not necessary for the Prosecutor to prove each and every element specified in the Statement of Particulars. He argued it was sufficient to prove any one of the number of the allegations provided that the elements established the charges. In this regard we were referred to Millar and Ontario Provincial Police (1995), 2 O.P.R. 1063 (OCCPS) and Lalonde and Ottawa Police Service (1988), 2 O.P.R. 785 (OPC).
Inspector Daniels drew our attention to the Hamilton-Wentworth Regional Police Service Policy and Procedure 5.2.02. In particular the portion which reads as follows:
“Information from the Canadian Police Information Centre (CPIC) network is highly confidential. The access and use of such information shall only be for activities authorized by the Hamilton-Wentworth Regional Police Service. Members shall not disclose such information for any unauthorized person and will dispose of hard copy in a prescribed manner.”
Inspector Daniels argued the Statement of Particulars provides details as to the manner of non-compliance. He further argued that whether or not the facts as alleged support other potential misconducts was irrelevant at the hearing and is irrelevant to this appeal. The case which the Appellant was to meet was based on the information provided in the Statement of Particulars. Inspector Daniels further argued that in rendering his judgement the Hearing Officer clearly considered and rejected evidence given by Constable Sterling purporting to establish that each CPIC inquiry was for work related purposes.
In his arguments Inspector Daniels referred us to a number of items set out in the transcript of evidence. Inspector Daniels further argued that the Hearing Officer made his decisions based on credibility of the witnesses and the evidence that he heard. In this regard he argued that for an appeal tribunal to overturn a finding of credibility there must be very clear evidence of error. In this regard he referred us to the case of McDougall and Brockville Police Service (1993), 2 O.P.R. 960 (OCCPS).
It was argued further that an appellate body cannot assess credibility in reading a transcript. The Hearing Officer has the advantage of hearing the tone of voice, seeing the facial expressions and body language, and generally assessing the demeanor and personalities of the witness.
We were referred to the case of Brayshaw and Ontario Provincial Police (1992), 2 O.P.R. 937 (OCCPS). Inspector Daniels also argued that this Commission should only set aside the conclusions of the Hearing Officer in the cases where there is a manifest error in principle. Following this line of reasoning Inspector Daniels also referred us to Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS), Allen and Hamilton-Wentworth Regional Police Service and Marino v. Piccolo (Ont. Bd. Inq., 27 July, 1993). Inspector Daniels further argued that the Hearing Officer’s decision highlighted the various points which were germane to his conclusions. He asserted that the findings that the CPIC checks were not conducted for authorized police purposes was strongly supported by the evidence. Some of this evidence was referred by the Hearing Officer in his decision.
He stated that a clear distinction must be drawn between a misstatement of fact and a conclusion that can be properly drawn from the evidence. Inspector Daniels argued that the Hearing Officer is entitled and in fact, required to assess evidence and to draw conclusions. He argued that the decision did not misstate evidence but rather properly mentioned parts that the Hearing Officer accepted in support of conclusions drawn. We were referred to the case of Calder v. Funnell (Ont. Bd. Inq., 25 January, 1995).
Inspector Daniels further argued that the Hearing Officer properly assessed the evidence against the required standard of proof, namely clear and convincing evidence. It was noted that this standard was referred to on three separate occasions by the Hearing Officer within the judgement itself.
With respect to the second conviction of neglect of duty, Inspector Daniels argued that the Hearing Officer reached proper conclusions not only from the evidence but also drawing on his knowledge and personal experience in police investigations as he is entitled to do. We were once again referred to the case of Allen. Inspector Daniels further argued that the Hearing Officer’s ultimate determinations were properly based on a combination of factual evidence and his experience.
It was finally argued by Inspector Daniels that it was clear from the evidence that the Appellant had no valid reason for spending the excessive amount of time investigating the break and enter and “following up” with the victim. The Hearing Officer considered all testimony relating to this issue, accepted the evidence he found to be credible and rejected that which he found to be not so. His determinations were made after he had an opportunity to assess the demeanor of each witness.
With respect to the conviction for deceit, Inspector Daniels argued that the Hearing Officer did not err in finding the Appellant guilty. In so doing he relied upon evidence before him including testimony as to accepted police procedures. On this basis he properly concluded that the notes made by Constable Sterling were substantially different from the MDT records. That fact, together with the evidence of Constable Sterling’s personal relationship with the complainant and the Hearing Officer’s finding of excessive time being spent on the call, were more than sufficient to justify the decisions to convict. It was further argued that the Hearing Officer’s finding of credibility after hearing the witnesses must not be interfered with in the absence of substantial cause to do so. In this regard we were referred to Williams and Ontario Provincial Police at page 1058. Inspector Daniels also referred us to the Hamilton-Wentworth Regional Police Service Policy and Procedure 1.12 which requires officers to keep accurate notes of on duty activities including times and dates.
It was argued that this policy and procedure was not in conflict with the Police Service practice since the advent of CAD and MDT. The obligations of the officers are clear and uninfluenced by other parallel practice. It was argued that the differential of more than half an hour between the notebook kept by Constable Sterling and that of the CAD and MDT data combined with other findings made by the Hearing Officer unquestionably formed a solid basis for the conviction.
Inspector Daniels further argued that the intention of the Appellant is not germane to the determination of this issue. In this regard we were referred directly to the Code which provides that deceit is established where an officer willfully or “negligently” makes a false, misleading or inaccurate statement pertaining to official duties. Inspector Daniels argued that Constable Sterling made notations in his official police notebook which were not accurate. The evidentiary substantiation for this conviction more than meets the standard proof of clear and convincing evidence.
Decision:
The Commission was referred by the Appellant to many pages of transcript of evidence and was in essence asked by the Appellant to overturn the Hearing Officer’s finding of credibility and conclusions based on the evidence.
It is a well established principle that an appellant authority should only intervene if the Hearing Officer has made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drew erroneous conclusions from it. The Commission in Williams at page 1058 and Mowers and Hamilton-Wentworth Regional Police Service (March 18, 1999 OCCPS) at page 8 we stated:
“Our role or function in such matters is not to second guess the decision of the Adjudicator. In certain limited cases it should be open for us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination of the conclusions of the Adjudicator, that the credibility of the witness, cannot be reasonably accepted."
The hearing in question took place over ten days during which the Hearing Officer heard many witnesses who were subject to cross examination. We are satisfied that the Hearing Officer did not make any manifest errors, ignore conclusive or relevant evidence, misunderstand the evidence or draw erroneous conclusions from the evidence submitted to him.
We are further satisfied that there was sufficient evidence for the Hearing Officer to find Constable Sterling guilty of misconduct, pursuant to section 1(c)(iii) of the Code by conducting CPIC inquiries when there was no employment related reason for conducting CPIC inquiries. Such conduct is clearly contrary to section 5.2.02 of the CPIC Information Handling and Dissemination Policy and Procedure of the Service.
We agree with the decisions reached by the Hearing Officer that Constable Sterling conducted CPIC queries of E.J., K.S. and N.G. who were acquaintances, family friends and relatives. We accept that in rendering his judgement the Hearing Officer clearly considered and rejected evidence given by Constable Sterling that each CPIC query was for work related purposes.
The fact that Constable Sterling made no effort to arrest E.J. after the checks disclosed an outstanding warrant and he knew the whereabouts was more than enough for the Hearing Officer to conclude that the CPIC inquiries were not conducted for work related purposes.
The argument raised by the Appellant that the conclusions of the Hearing Officer would better support other charges under sections of the Code is irrelevant and extraneous to the appeal before this Commission.
Although we are satisfied that the Hearing Officer has reached a proper conclusion that Constable Sterling contravened CPIC Information Handling and Dissemination Police and Procedure of the Service by conducting CPIC inquiries against E.J., K.S. and N.G., we do wish to comment on the Appellant’s argument that this charge must have failed unless all three elements set forth in the Statement of Particulars had been proven.
We do not agree with this argument. Constable Sterling was charged under section 1(c)(ii) which reads as follows:
“fails to work in accordance with orders, or leaves an area, detachment, detail or other place of duty, without due permission or sufficient cause”.
It is irrelevant in our opinion whether the prosecution was able to prove that all six separate CPIC inquiries were inappropriate. We are satisfied that the charge against Constable Sterling would have been substantiated if only one or more of the CPIC inquiries had proved to be conducted for no employment related reason. In the case before us however, in our opinion, this argument is moot and we are satisfied that all elements of this charge have been adequately proven and that the conclusions of the Hearing Officer are correct.
With respect to the second conviction for neglect of duty, we are satisfied that the Hearing Officer’s conclusions were based on the evidence that Constable Sterling took an excessive period of time to obtain information in relation to his follow-up investigations with respect to a break and enter. It is clear from the evidence that Constable Sterling had established a personal relationship with the victim of the break and enter and had spent a considerable period of time with the victim, both when he was on and off duty. We see no reason to overturn the Hearing Officer’s decision that he did not accept Constable Sterling’s explanation as to how he spent his time at the victim’s residence and as a result we have no reason to overturn the conviction of neglect of duty.
In reaching our decision we make it clear that we are not only relying upon the findings of the Hearing Officer based on his own experience and knowledge but from all of the evidence which was introduced before the Hearing Officer. The Hearing Officer clearly found that Constable Sterling’s explanation as to how he spent his time with the victim was not to be believed. The Hearing Officer’s own experience and knowledge was only one element in the Hearing Officer reaching this decision. Furthermore, we are satisfied that the Hearing Officer clearly understood that his decision was to be based on clear and convincing evidence as he acknowledged this throughout his judgement.
Finally, we are satisfied that the evidence findings of the Hearing Officer are indisputable in that Constable Sterling did make incorrect entries in his notebook as to the time spent on a call. The Service Policy and Procedure paragraph 1(a) states “Officers in field operation shall maintain accurate and complete notes recording in chronological order and in detail all matters involving police activity coming to the officer’s attention.”. It is clear that Constable Sterling’s notebook entered a follow-up call from a break and enter to 2230 hours to 2315 hours for a total of 45 minutes. There is no further explanation in his notebook as to how the time was spent. In fact the computer aided dispatch was that he was on this call from 2153 to 2310 being a total of 77 minutes. We do not accept the argument of the Appellant that Constable Sterling was only following the general practice of the Hamilton-Wentworth Regional Police Service in that this written policy was not followed in practice. As this Commission previously stated in Cristiano and Toronto Police Service (1997), 3 O.P.R. 1126 (OCCPS) at page 1128:
“The officer argued that it was common practice, at least in some stations to omit noting the exact particulars of where one was. Although this may be the case, we find it unacceptable to make notes where they are both inaccurate and misleading.”
Consequently, we are satisfied that Constable Sterling did not keep an accurate notebook in accordance with the Service policy. Although Constable Sterling argued in his defense that he was merely following common practice this is not an excuse for breaching clear policy as established by the Service, although, we are satisfied that his explanation could be taken into consideration in the imposition of the penalty.
For the above reasons the appeal by the Appellant of his convictions are denied.
In his appeal the Appellant does not appeal the sentence imposed. Accordingly, we conclude that Constable Sterling does not object to the penalties imposed upon him. Similarly the Respondent has not requested this Commission to review the penalties imposed by the Hearing Officer upon Constable Sterling.
DATED THIS 10TH DAY OF AUGUST, 1999
G. Douglas Smith Chares B. Rycroft
Member, OCCPS Member, OCCPS