ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE RICHARD MOWERS
Appellant
-and-
HAMILTON-WENTWORTH REGIONAL POLICE SERVICE Respondent
DECISION
Panel: Barbara Wellard, Member G.
Douglas Smith, Member
Hearing Date: Wednesday January 20, 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:
Barbara Wellard, Member G.
Douglas Smith, Member
Appearances:
Doug Allen, Agent for the Appellant Gary J. Kuzyk, Counsel for the Respondent
Hearing Date: Wednesday January 20, l999
This is an appeal from convictions on two counts of neglect of duty made against Constable Richard Mowers by Superintendent Terry Sullivan (the “Hearing
Officer”) on November 26, 1997.
As well, it is an appeal against the disciplinary penalty of reduction in rank of one grade for a period of six months imposed on January 16, 1998.
Background:
On April 24, l996 Constable Mowers was on duty in his police cruiser. At approximately 2:57 a.m. he answered a voice dispatched call for units to respond to a break and enter in progress on Guildwood Avenue. Constable Mowers was instructed to take up a perimeter point at the intersection of Guildwood and Greencedar Drive.
Shortly after Constable Mowers arrived at this location the dispatcher made a second call. It went:
Okay, units on the mountain, I’m just getting a call from *** Greencedar1 about a prowler in progress, *** Greencedar, somebody knocking on the complainant’s door and she is frightened. Have a unit, maybe a couple of HEAT2 units, check out that area.
- A few minutes later the dispatcher gave further details:
The number on Greencedar is , Greencedar. There is also a DVERS3 alarm at that residence. Be advised there is a DVERS alarm at that residence for a serious domestic. The husband is SG4 and from the complainant, she has been having problems with her ex-husband.
Constable Mowers responded to the second call. On his way to the new location, he picked up Constable Pray, who had been on foot on Greencedar near Guildwood.
When they arrived at *** Greencedar Constable Pray went to the door of the residence. Constable Mowers spoke to a man who was sitting inside a motor vehicle parked in the driveway. Constable Mowers had difficulty understanding the individual because of the man’s poor command of English. However, Constable Mowers did learn that the man owned the vehicle and that his wife was in the house.
At 3:07 a.m. Constable Mowers ran a Canadian Police Information Centre (CPIC) inquiry of the vehicle’s license plate from his Mobile Display Terminal (MDT). This search disclosed that the owner of the vehicle was SG. Constable Mowers then ran a further CPIC search on SG. The first record contained the following information:
CHARGEDASSAULT, ASSAULT W WEAPON X2
OFFENCE DATE 95-12-14
CONDITIONS CONFIRM NO ASSOC & STWY. NO WEAPONS-
ALCOHOL
AWAITING DISPOSITION
- This prior charge related to an alleged assault by SG on his wife. One of the conditions of his release was that he not go within three blocks of the Greencedar address.
1The address has been deleted.
2High Enforcement Action Team
3Domestic Violence Emergency Response System
4The name has been modified.
About this time Constable Boich arrived on the scene. He also spoke to SG. At Constable Pray’s suggestion he remained outside and watch SG because he was “acting funny”.
Constable Mowers informed Constable Boich that SG was on the system, charged and subject to conditions. Apart from that, the Appellant took no further action. Specifically, he did not confirm the conditions of recognizance disclosed on the CPIC check. He did not arrest SG. He filed no report.
Constable Mowers left SG at *** Greencedar and drove Constable Pray back to the area of the attempted break and enter. At 3:35 a.m. Constable Mowers notified the Communications Branch through his MDT, that he was available for further calls.
At approximately 4:00 a.m. Constable Mowers booked off for a ‘mobile lunch’ with Linda Foster, a call-taker from the Communications Branch. The lunch with Linda Foster took place at about 4:l5 a.m. This meeting had been arranged through a series of MDT messages exchanged between Constable Mowers and Linda Foster both before and after the incident involving SG.
The Hearing:
- On June 30, l996 Constable Mowers was charged with five counts of misconduct. He was served with a formal Notice of Hearing. For the purposes of this appeal the two relevant allegations and their particulars were as follows:
YOU ARE ALLEGED TO HAVE COMMITTED MISCONDUCT in that you, on April 24, l996, while a sworn member of the Hamilton-Wentworth Regional Police Service without lawful excuse, neglected or omitted to promptly and diligently perform a duty as a member of the Police Service, thereby committing the offence against discipline of Neglect of Duty, as specified in Section l(c)(i) of the Schedule, Code of Conduct, Regulation 927 R.R.O. l990 and are thereby guilty of a misconduct contrary to Part V, Section 56 (a) of the Police Services Act, R.S.O., l990, as amended.
Statement of Particulars:
Being a sworn member of the Hamilton-Wentworth Regional Police Service, on April 24, 1996, you attended a call for service at *** Greencedar Drive, Hamilton, where you failed to conduct an appropriate and complete investigation into the circumstances of the complaint.
AND FURTHER … YOU ARE ALLEGED TO HAVE COMMITTED MISCONDUCT IN THAT YOU, on April 24, 1996, while a sworn member of the Hamilton-Wentworth Regional Police Service without lawful excuse, neglected or omitted to promptly and diligently perform a duty as a member of the Police Service … as specified in Section 1(c)(i) of the Schedule, Code of Conduct …
Statement of Particulars:
Being a member of the Hamilton-Wentworth Regional Police Service, on April 24, 1996, you attended at a call for service at *** Greencedar Drive, Hamilton, where you failed to make an arrest in relation to the criminal code offence of breach of recognizance, in regard to SG.
On October 2, l996 Constable Mowers was also served with a Notice under section 6l(4) of the Act. It advised him that if he were convicted of the charges that a penalty of demotion or dismissal may be imposed.
On November 26, l997 Constable Mowers was found guilty of the two allegations. The three other allegations of misconduct were dismissed by the Hearing Officer
On January l6, l998 the Hearing Officer sentenced Constable Mowers to a reduction in rank and pay from lst class to 2nd class constable for 6 months.
Appellant’s Position:
Mr. Allan, on behalf of Constable Mowers made a number of submissions with respect to both the findings and the sentence imposed by the Hearing Officer.
First, Mr. Allan argued that the Hearing Officer failed to treat this matter as a major offence in that a penalty of dismissal was being sought by the Respondent. Mr. Allan suggested that there was a sliding scale of evidentiary proof required depending on the penalty being sought. It was argued that the evidence presented in this case did not reach the threshold of proof required by this sliding scale, and as such the findings of misconduct should be quashed.
Second, it was argued that the Hearing Officer erred in finding Constable Mowers guilty of misconduct. Mr. Allan suggested that both counts arose from the same set of circumstances and argued that the concepts of autrefois convict and autrefois acquit should apply.
Third, it was argued that the Hearing Officer erred in finding the Appellant guilty of misconduct because the Appellant had not received proper training in the use of the MDT system. As a result, it was suggested that the Appellant did not have knowledge of the proper use of and interpretation of the CPIC transmission. It was further argued that the CPIC transmission did not contain proper information and wording and as such was unintelligible to Constable Mowers. It was therefore suggested that any errors or omissions in dealing with SG were not as a result of any deliberate misconduct by Constable Mowers but due to systemic concerns.
Fourth, it was argued that the Hearing Officer erred in concluding that Constable Mowers had received the DVERS alarm issued by the dispatcher. It was noted that Constable Pray testified that he did not receive the DVERS alarm and it was therefore reasonable to conclude that neither had Constable Mowers.
Fifth, it was argued that the penalty imposed by the Hearing Officer was not just and reasonable having regards to all circumstances. In particular, it was noted that the penalty was not consistent with those imposed on Constable Pray and Constable Boich who were also both charged with misconduct. Both officers received admonishments.
Finally, it was argued that the Hearing Officer erred in not properly applying the principles of progressive discipline. It was argued that according to this doctrine disciplinary penalties should be progressive in nature in order to correct the misconduct and to restore a viable employment relationship. As a result it was argued that the penalty imposed on Constable Mowers was too harsh in that the Hearing Officer did not take into consideration the fact that any prior misconduct was minor in nature and also did not properly take into consideration the Appellants otherwise good character and conduct.
Respondent’s Position:
Mr. Kuzyk, on behalf of the Service took issue with the Appellant’s submissions.
First, he stated that the Respondent accepted that the standard of proof required under the Act was that of “clear and convincing evidence”. Mr. Kuzyk, however disputed that there is a sliding scale of evidentiary proof based on the penalty being sought. The Respondent’s position was that there was clear and convincing evidence before the Hearing Officer upon which he could reasonably base a determination of guilt.
Second, the Respondent accepted the argument raised by the Appellant that it is valid and acceptable to apply the principles set out Kienapple v. The Queen (1974), l5 C.C.C. (2nd) 524 (S.C.C.), namely that there cannot be multiple convictions for the same delict. The Respondent argued however that the facts in question involved two separate and distinct delicts, the first being the Appellant’s failure to make an arrest for breach or recognizance where there are reasonable and probable grounds to do so, and the second being the Appellant’s failure to conduct a complete and proper investigation of a possible domestic violence or abuse incident. It was argued that the Appellant failed to follow the investigative procedures laid out in the domestic violence policy and failed to confirm the recognizance conditions as was required following his CPIC search.
The Respondent suggested therefore, that the two charges were not thus mutually exclusive as Constable Mowers could have done either without the other. It was further argued that the counts are not based on the same facts although they may have arisen from the same incident.
Finally, the Respondent argued that the penalty imposed was appropriate in that Constable Mowers has a significant discipline history. It was further argued that Constable Mowers did not readily admit his breach of duty but in fact rigorously denied any wrongdoing. In such instances it was argued that a more severe penalty should properly be imposed.
Decision:
This case raises a number of novel and interesting issues. We will deal with them in the order in which they were presented.
First, we do not accept the notion that there is a sliding scale of the standard of proof required in discipline hearings based on the penalty being sought. The Appellant referred us to Langlois and Ontario Provincial Police (1992), 2 O.P.R. 945 (O.C.C.P.S.) in support of this proposition. It is clear from reading that decision that the standard of proof required in that case was based on “the balance of probabilities” test. That is no longer the situation.
Under the current law the standard of proof is “clear and convincing evidence” . Section 64(l0) of the Act reads:
At the conclusion of the hearing, if misconduct or unsatisfactory work performance is proved on clear and convincing evidence, the chief of police shall take any action described in section 68.
- The meaning of the term “clear and convincing” has been examined in a number of previous cases. For example, at page 11 of Allan v. P.C. Munro (Ont. Bd. Inq., July 27, l994) a panel of the former Board of Inquiry stated:
[t]here must be weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to the fair and reasonable conclusion that the officer is guilty of misconduct.
This standard would apply regardless of the penalty being sought.
Disciplinary proceedings involving police officers are labor relations matters. They are not criminal trials. Consequently, caution should be exercised in applying criminal law concepts (autrefois convict and autregois acquit) or rulings laid out in what are essentially criminal cases such as Kienapple v. The Queen to discipline hearings.
Certain common principles may arise. For example, at page 912 of Dempsey and Waterloo Regional Police Service (1991) 2 O.P.R. 909 (O.C.C.P.S.) the Commission has previously stated that “in our view the rules of natural justice demand that one not be convicted of two offences based upon the same delict”. However, on the facts of this case, we find ourselves in agreement with the Hearing Officer who concluded that both counts at issue are properly independent on each other based on the evidence required to support each allegation.
The Domestic Violence Policy issued by Chief Robert B. Middaugh on July 3l, l994 clearly required the Appellant, when confronted with an alleged case of domestic violence, to conduct a proper and thorough investigation. This did not occur. Leaving that aside, Constable Mowers also did not arrest SG for breach of recognizance.
We agree with the position taken by the Respondent that both counts are not mutually exclusive in that Constable Mowers could have committed either without the other. While the charges may have some overlap in the facts, they are not based upon the same facts.
It was suggested to us that the Hearing Officer misconstrued the evidence before him in concluding that Constable Mowers had received the DVERS alarm. The evidence however, clearly shows that mention of the alarm was made by the dispatcher and should have been heard by the Appellant. Given that Constable Mowers did not testify at the disciplinary hearing, it is argued that an inference should be drawn from the evidence of Constable Pray that he did not hear the dispatcher mention the alarm.
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. As stated previously by this Commission in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) at page 1058:
Our role or function in such matters is not to second guess the decision of the Adjudicator. In certain limited cases it would be open to 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 than the conclusions of the Adjudicator, as to the credibility of witnesses, cannot be reasonably accepted.
The Hearing Officer heard much testimony and reviewed many exhibits over the course of 3 days. The evidence was tested by cross examination. Clearly the Hearing Officer had to draw inferences and conclusions from the evidence that he heard as any trier of fact.
In so doing, we cannot find that he made any manifest errors, ignored conclusive or relevant evidence or misunderstood the evidence or drew erroneous conclusions from the evidence. It was certainly open to him to conclude that Constable Mowers must have heard the portion of the voice message concerning the DVERS alarm.
It was also strongly argued by Mr. Allan that Constable Mowers did not receive adequate training in the use of the MDT terminal and as a result he should not be held accountable for his failure to properly use this system. Clearly, Constable Mowers was familiar enough with the MDT system so as to use it to signal his availability for further calls and arrange a ‘mobile lunch’. As well, it is not in dispute that Constable Mowers did receive the CPIC transmission which contained the words “conditions confirm”.
Consequently, even if we accept the Appellant’s arguments that the balance of the CPIC transmission was not clear or concise as to the conditions of SG’s recognizance, it is clear that there was a requirement upon Constable Mowers to confirm the conditions. In this regard we were referred by the Respondent to a memorandum dated Nov. 2l, l994 addressed to all staff in which among other comments with respect to CPIC, the following was set out: “Officers are reminded that there is still the requirement to confirm all conditions as usual”. For these reasons we see no error in the findings of the Hearing Officer with respect to this issue.
This leaves the question of the penalty imposed by the Hearing Officer upon Constable Mowers, namely a reduction in rank and pay according to the rank to which he is reduced – from that of lst class constable to that of 2nd class constable for 6 months.
Counsel for the Appellant argued that the Hearing Officer was wrong in imposing a penalty that was not just and reasonable having regards to all the circumstances in this case. In this regard it was noted that the penalty was not consistent with the penalty received by Constable Pray and Constable Boich, the other officers involved in this incident.
Furthermore, it was argued that the Hearing Officer erred in not properly applying the principles of progressive discipline by not weighing the Appellants past misconduct which was not of a serious nature. We were also referred to the Appellant’s previous good conduct, his previous commendations and letters of appreciation. Counsel for the Appellant directed our attention to the following cases: Dempsy and Waterloo Regional Police Service, Sloot and Brantford Police Service (1987), 2 O.P.R. 770 (O.P.C.), Schofield and Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.).
In response, counsel for the Respondent argued that the rehabilitation function of discipline is most capable of success where the employee promptly admits his or her breach of duty. Furthermore, counsel for the Respondent argued that in police discipline matters involving serious breaches of duty, the Hearing Officer generally imposes substantial penalties where the charged officer has neglected his duty for the sake of his personal convenience. In this respect we were directed to Andrus and Toronto Police Service (1985), 2 O.P.R. 676 (O.P.C.) and Harmer and Sarnia Police Service (1982), 2 O.P.R. 530 (O.P.C.).
Counsel for the Respondent furthered argued that the penalties imposed with respect to Constable Pray and Constable Boich should be distinguished from the penalty imposed upon Constable Mowers in that they:
a) were not officers having care and control of SG;
b) did not see the CPIC record and therefore did not have any knowledge of the nature of the outstanding charges against SG nor the conditions of his recognizance;
c) had no obligation to confirm nor even inquire into the charges or conditions;
d) admitted their neglect of duty; and
e) had no prior discipline records that would have affected their penalties
In Williams and Ontario Provincial Police the Commission identified three key elements to be taken into account when imposing penalty. These included 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. Other factors can be relevant, either mitigating or aggravating the penalty depending on the particular conduct in question. These include the officer’s employment history and experience; recognition of the seriousness of the transgression and the handicap or other relevant circumstances of the officer.
It is also important when imposing a penalty, to take into account the other discipline cases dealing with similar types of conduct. There must be consistency in the sentences.
The misconduct in this case is serious. Constable Mowers left a frightened woman who had been a prior victim of domestic violence with her former accused husband parked in her driveway at three in the morning. He failed to conduct a thorough inquiry. He failed to confirm the conditions of the husband’s recognizance. If he had done so this would no doubt have led to an arrest. It is indeed fortunate that more serious consequences did not arise as a result of Constable Mowers’ neglect.
Certainly, Constables Pray and Boich bear some measure of responsibility for this situation. However, it is evident that they were not the officers with control of SG or access to the relevant CPIC information. As a result, their degree of culpability can be distinguished.
Further, both Constables Pray and Boich acknowledged responsibility for their actions. Constable Mowers has neither admitted his misconduct nor has he apologized. In Brown and Beatty, Canadian Labour Arbitration (Third Edition, Aurora, Canada Law Book, 1998) at 7-185:
… some arbitrators, by implicitly assuming that an employee who immediately admits his wrong doing and/or tenders an apology following his misconduct hereby recognizes impropriety of his behaviour thus would more likely be capable of conforming to the expected norms.
However, the same text recognizes the theory of progressive discipline which very simply is the theory that by progressively increasing the severity of the discipline imposed for persistent misconduct it is expected that the employee will be given inducement incentive to reform his or her conduct.
Unlike Constables Pray and Boich with prior unblemished records, we note that Constable Mowers has five prior disciplinary actions in his nine year career. They include:
January 16, 1990 – failed to attend court – four hours court time.
January 8, 1992 – motor vehicle accident – admonishment
March 3, 1993 – motor vehicle accident – admonishment
March 3, 1994 – failed to submit report – four hours
August 25, 1994 – motor vehicle accident – six hours
As well, Constable Mowers had been previously cautioned in respect of a meeting which had taken place on February l9, l996 during which he ignored calls for units to respond to an entry in progress.
We agree with the submissions before us and with the findings of the Hearing Officer, that the three motor vehicle accidents do not have the same cumulative effect in considering penalty. The two other matters however, are cumulative in that they concern a failure to perform a duty as expected of a police officer.
To his credit, we have taken into consideration the evidence of Staff Sergeant Andrew who believes that Constable Mowers’ performance is at the top half or third of his shift. We have also taken into consideration the number of commendations and letters which have been drawn to our attention by the Appellant. Taken in total, we agree with the Hearing Officer that Constable Mower’s most recent transgression does not warrant dismissal.
Perhaps more to the point are the previous commission decisions in Harmer and Sarnia Police Service and Andrus and Toronto Police Service.
In Harmer the officer was convicted of misconduct for failing to take prompt action following an urgent call for assistance. He received a reduction in rank to second class constable for five months. On page 533 of this case the Commission stated:
the penalty initially seems to be somewhat harsh considering the officer’s record over the last few years preceding this incident. On the other hand it is imperative that officers respond promptly and diligently to dispatches and that it be clear in the minds of Constable Harmer and fellow officers that they are not at liberty to compromise a Code 2 dispatch by interpreting it in a manner consistent with their convenience and inconsistent with the police force rules and regulation.
The penalty was upheld.
In Andrus the officer was convicted of neglecting to promptly and diligently perform his duty following his failure to assist a fellow Constable on a call. Constable Andrus was having his hair cut when informed by a fellow officer that they had received a hold-up call from the dispatcher on their cruiser radio. Constable Andrus declined to assist on the call. In that case penalty was a reduction from first class to second class constable for a period of six months with the discretion to the chief to review after three months. At page 677 of that decision the panel stated:
We have reviewed the evidence in the matter and although we understand the Constable has an otherwise good record we regard the present offence and the circumstances of it as serious.
To our mind, the penalties assessed in these two cases reflect the appropriate range for such transgressions. We are satisfied that the penalties imposed on Constable Mowers are both acceptable and proper.
The appeal against both conviction and penalty is hereby dismissed.
DATED THIS 18TH DAY OF MARCH, 1999.
Barbara Wellard, G. Douglas Smith, Member, OCCPS Member, OCCPS