ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE EDWARD HEWITT
AND
CONSTABLE CLIFFORD DEVINE
APPELLANTS
-and-
TORONTO POLICE SERVICE
RESPONDENT
DECISION
Panel: Charles B. Rycroft, Member
Benson Lau, M.D., Member
Hearing Date: Tuesday, August 10, 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
Presiding Members:
Charles B. Rycroft, Member
Benson Lau, M.D., Member
Appearances:
Harry G. Black, Q.C., Counsel for the Appellants George S. Monteith, Counsel for the Respondent
Hearing Date: Tuesday, August 10, 1999
This is an appeal from convictions on charges of neglect of duty found against Constable Edward Hewitt and Constable Clifford Devine contrary to section I(c)(i) of the Code of Conduct contained in Regulation 927 of the Revised Regulations of Ontario, 1990 as amended (the “Code”) by Superintendent Terence Kelly (the “Hearing Officer”) on February 11, 1998.
Constables Hewitt and Devine further appeal the penalty imposed April 8, 1998 of forfeiture of three days off or 24 hours.
Background:
The facts giving rise to the charges appear to be unchallenged. The officers were assigned together in a uniform car for the 2.00 p.m. to 12.00 p.m. patrol shift on July 31, 1996. At 8:16 p.m. they received a radio call from dispatch to attend at 196 M. Street regarding persons in a van behaving suspiciously and who had disposed of something down a sewer.
Upon arrival at the scene, the officers were advised by the complainant that she had seen three people ‘hiding’ in a commercial van. A woman had exited the van and deposited a pool cue down the sewer and thrown a baseball bat under a car. Later, a man had exited the van and then returned to it and changed his clothing. The complainant told the officers that the van had left 30 minutes before they arrived.
Constable Hewitt recovered a baseball bat from under a parked car and a pool cue, which he deposited in the trunk of the police car. The officers were provided with the license plate number of the van. They confirmed that the vehicle had not been reported as stolen. They scouted the area to see if the van was in the neighbourhood. It was not located.
The officers returned to other duties without reporting their findings to their dispatcher. They completed six other calls. At the end of their shift the officers went off duty without completing a seized property report. The pool cue and baseball bat were left in the trunk of the patrol vehicle.
Related Circumstances:
- Approximately half an hour before Constables Hewitt and Devine were sent to 196 M. Street, two different officers had been dispatched to the same general area to deal with an unconscious man who had possibly been ‘hit’ with a baseball bat. A subsequent call indicated only that the man had ‘fallen’. The male was taken by ambulance to hospital. A Sergeant Supervisor had attended the scene but left matters to the discretion of the officers. No witnesses to the incident were found. The sergeant left and the two officers went to the hospital to interview the man. Neither the officers or their sergeant advised the dispatcher about anything connected with what they had found at that scene.
The Allegations:
The Appellants were jointly arraigned January 8, 1997, and charged with allegedly having committed misconduct in that they did, without lawful excuse, neglect or omit promptly and diligently to perform a duty as a member of the Police Force, contrary to section I(c)(i) of the Code. Specifically that they did, on July 31,1996, fail to notify their dispatcher and other units of a vehicle being wanted due to the suspicious circumstances, found property and the actions of the occupants of the van.
As well, both officers were charged with insubordination contrary to section 1(b)(ii) of the Code for neglecting to carry out an order without lawful excuse. This related to failing to complete a property receipt and a form for the recovered baseball bat and pool cue contrary to Directive 09-01 of the Policy and Procedure Manual.
On January 27, 1998 Constable Devine pled not guilty to a charge of insubordination. Constable Hewitt pled guilty to this allegation.
Both Constables Hewitt and Devine pled not guilty to neglect of duty.
On February 11, 1998 the Hearing Officer rendered findings of guilt of neglect of duty against Constables Hewitt and Devine. Constable Devine was found not guilty of the charge of insubordination. On April 8, 1998 the Hearing Officer imposed the penalty of forfeiture of three days off or 24 hours on each officer for the neglect of duty.
In addition, the Hearing Officer imposed a penalty of three days off or 24 hours on Constable Hewitt for the offence of insubordination. This was to run concurrently with the other penalty.
Appellants’ Position:
- Mr. Harry Black, Q.C., Counsel for the Appellants, made several submissions and challenges to the findings of guilt and the penalties. Specifically, he argued that the Hearing Officer:
a) erred in law in submitting his own opinion for that of the officers who acted in good faith at the time of the incident based on the circumstances facing them;
b) erred in applying an objective standard to the finding of misconduct;
c) erred in failing to consider the importance of the belief of the officers in the circumstances that they were facing;
d) erred in engaging in an ex post facto approach to the evidence;
e) erred in law in finding the officers guilty of professional misconduct on the basis of an error in judgement;
f) erred in judgement in finding professional misconduct on the basis of carelessness;
g) erred in failing to apply the evidence before him and instead engaged in speculation and acted without evidence and that the evidence does not support the finding of misconduct to the degree of proof required;
h) failed to take into account the informal discipline received by their supervisor and other officers involved in similar circumstances;
i) failed to take into account the evidence of the unfairness of the process that led to the officers being charged with neglect of duty,
j) failed in imposing the penalty to take into account the good character evidence; and
k) erred in focusing on specific deterrence in imposing the penalty
The Appellants’ Counsel provided argument at length in support of the contentions as listed above. In particular Counsel drew our attention to a number of factors including the exemplary career records of each of the charged officers.
Mr. Black noted that the officers were responding to a dispatcher’s call to attend at a scene located on M. Street in response to a call from a female complainant. This call indicated that the complainant observed a male hiding in a van, a female exiting a van and disposing of a pool cue down a sewer and throwing a baseball bat under a car. The complainant also reported that a male in bare feet, exited, returned to the van where he changed his clothing.
He argued that the officers used their own judgement, in the circumstances, as to the importance of the objects found. Their decision not to notify the dispatcher of the items seized was due to their belief that these items were of an insignificant nature.
The Appellants' Counsel noted that prior to receiving the call to M. Street the officers had been on lunch. As such, they had no knowledge of any calls that were made over the radio prior to their return to duty at 8:10 p.m. (i.e. that an unconscious man who had reportedly been ‘hit’ with a baseball bat was found in the area).
Respondent's Position:
Mr. George Monteith, on behalf of the Respondent, argued that the Hearing Officer did not make any manifest errors, ignore conclusive or relevant evidence or misunderstand the evidence or draw erroneous conclusions.
Further, he noted that it is a well established principle that an appellate authority, like the Commission, should only intervene if the Hearing Officer made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drew erroneous conclusions from it. In support of which he cites Mowers and Hamilton-Wentworth Regional Police Service, (OCCPS, January 20, 1999 at page 8).
Mr. Monteith requests that this appeal against both conviction and penalty be dismissed.
Decision:
Both officers in this case are charged with neglect of duty. Under section 1(c)(i) of the Code, neglect of duty is defined as “without lawful excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force.
Essentially, this is a two part test. As the Commission stated in Soley and Ontario Provincial Police (1996) 3 O.P.R. 1098 (OCCPS) at page 1100:
The charge of Neglect of Duty is a serious charge under the Code of Conduct. To be convicted of this charge, it must be shown that:
The member was required to perform a duty, and the member failed to perform this duty because of neglect, or did not perform the duty in a prompt or diligent manner.
Once proven, the member, to avoid discipline, must then show that:
[The member] had a lawful excuse for not performing the duty in the prescribed manner.
The specific allegation is that the two officers failed to immediately report to their dispatcher the results of their investigation and in particular the recovery of the pool cue and baseball bat. The implication is that if these items had been reported that it might have assisted the investigation of what happened to the unconscious man found earlier in the same area.
The issue here is, whether or not there was a duty on Constables Hewitt and Devine to report their findings to their dispatcher. Further if such a duty existed, whether or not their failure to meet it was based on a lawful excuse.
The duties imposed on police officers can arise from a number of sources. These include statute, common law rules and orders.
That being said, it is evident that police officers are to be diligent in the investigation of crimes and apprehending criminals. In McGuire and Toronto Police Service, (1971) 1 O.P.R. 53 (OPC) at page 54 it was noted that:
Diligence is defined in the Oxford English Dictionary as being “the care and attention due from a person in a given situation”. The Random House Dictionary defines diligence as “the constant and earnest effort to accomplish what is undertaken; persistent exertion of body and mind”.
In situations where there is a clear or explicit rule to be followed then it is relatively simple to determine the precise steps to be taken to diligently perform an obvious duty. An example would be the Directive to complete reports for recovered property.
However, there does not appear to be a rule or directive requiring officers in Toronto to advise their dispatcher of the results of their investigation of every call. That suggests that some reasonable exercise of judgement or discretion is anticipated. As was stated in Mousseau and Toronto Police Service 2 O.P.R. 505 (OPC) at page 507:
The reasonableness of an officer’s conduct must be examined in light of the circumstances as they exist at a particular time. An officer is expected to use discretion and judgement in the course of his duties on many occasions. The police officer’s discretion or judgement ought not to be examined scrupulously by the benefit of hindsight, but it is essential to examine the circumstances under which the officer exercised discretion or independent judgement to see to what extent discretion was warranted.
What were the circumstances giving rise to the exercise of discretion in this particular case?
In his testimony Constable Devine stated :
"All we had was some concerned citizens who were turning over, in my opinion, two worthless pieces of property that didn't mean anything. I did not know that I50 meters away there were three of my fellow officers, one of them a supervisor, standing in the middle of a homicide scene where they knew a bat had been used and that information wasn't relayed to the dispatcher and it wasn't relayed to us. Their call gave that information to them and that wasn't passed on to us. We didn't hear their call. We weren't aware of what they were doing”.
It is evident that the officers had concluded, after being on the scene, that the incident was not serious nor crime related and that they would return to taking other calls.
Our opinion is that what is considered to be serious should be confined within the framework of the information provided to the officers, and their observations and whatever actual information was gleaned from the persons at the scene. On the face of it their decision not to report their findings immediately was not unreasonable in the situation. Certainly, we find no compelling or pressing reason to accept that it was incumbent upon the officers to have called in to their dispatcher and report the finding of what they termed and believed to be, "insignificant items". It is our opinion that the trier of fact erred in assessing the degree of seriousness of an event by including information which was not available to the officers. To some degree this is conjecture and second guessing with the benefit of hindsight.
Would the standard of test remain the same if the officers knew of the other incident of alleged assault with a baseball bat? We think not. Knowledge of that, almost parallel event, would most certainly have heightened the level of suspicion, and as experienced officers would have prompted them to contact their dispatcher.
In conclusion, it is the decision of the Commission that the appeal against the finding of misconduct will be allowed and the penalties imposed be quashed.
DATED THIS 10TH DAY OF NOVEMBER, 1999.
Charles B. Rycroft Benson Lau, M.D. Member, OCCPS Member, OCCPS