Constable John Burdett v. Guelph Police Service, 1999 CanLII 31611

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE JOHN BURDETT

Appellant

-and-

GUELPH POLICE SERVICE

Respondent

DECISION

Panel: Karlene Hussey, Member Michele Shephard, Member

Hearing Date: January 29, 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:

Karlene Hussey, Member Michele Shephard, Member

Appearances:

Brian R. Law, Counsel for the Appellant

Inspector Michael Shard, Inspector Susan Dunn, Counsel for the Respondent

Hearing Date: January 29, 1999

1. This is an appeal from two findings of discreditable conduct made against Constable Burdett contrary to section 1(a)(i) of the Code of Conduct contained in Regulation 927, R.R.O. 1990 as amended and which is now section 2(1)(a)(xi) of Regulation 123, R.R.O. 1998 (the "Code").

2. Constable Burdett also appeals the penalty of demotion from first to second class constable for a period of four months imposed by Inspector Connolley (the "Hearing Officer") for both offences.

Background:

3. The facts giving rise to the disciplinary actions against Constable Burdett are largely without dispute.

4. Constable Burdett is a member of the Guelph Police Service. He resides in the City of Cambridge in the Regional Municipality of the Waterloo. This is in the jurisdiction of the Waterloo Regional Police Service.

Chronology of Events:

November 20, 1996

5. Constable Burdett was the victim of a break and enter at his residence and he reported this incident to the Waterloo Regional Police Service.

December 1, 1996

6. Constable Burdett made a telephone call to the Waterloo Regional Police Service, spoke to Detective Bodkin-Ross and advised her that he had located some of his missing property in a local pawn shop. He told her that an individual known as EP sold the items to the shop. Constable Burdett asked who was looking after the investigation and how it was progressing. He was advised that someone would contact him.

December 2, 1996

7. Following the telephone enquiry, the investigation was assigned to Sergeant Gerard Schmidt. Sergeant Schmidt telephoned several pawnshops in the area and ascertained that EP had indeed sold them some of Constable Burdett’s property including a number of compact disks. One shopkeeper in particular had purchased approximately 15 compact disks from EP and these were subsequently identified by Constable Burdett to be part of his missing property. Sergeant Schmidt also determined that other items had already been resold.

December 3, 1996

8. Sergeant Schmidt telephoned Constable Burdett and informed him that he had identified some of the shops which had made purchases from EP. He also told Constable Burdett that he could recover his missing items by paying the respective dealers what each had paid for the items. Constable Burdett found this difficult to accept.

December 8, 1996

9. Constable Burdett repurchased approximately 20 to 25 of his compact disks from a shopkeeper as well as some other property. He later attended the police station and identified other missing property including an amplifier.

December 12, 1996

10. Constable Burdett’s home was broken into again and property including his stereo equipment was stolen. On or about December 23, 1996 Constable Burdett contacted a Waterloo Regional Police officer by the mobile data terminal and requested the current address for EP. This was provided.

December 25, 1996, Constable Burdett personally delivered a Christmas Card to EP and the hand-written portion of the card read:

"Eric: Just a little note to brighten up your holidays. I would imagine that you’re under a little bit of stress right now knowing that I know who you are and where you’re at. Something is telling me that right about now you’re thinking that it probably wasn’t too smart of you to break into my house and steal my shit. Not only that but you further insult me by breaking in again and taking my CD player. I will get it back Eric, but I am quite sure you’ll show a little holiday cheer and return it. You may even want to turn yourself into the Police just to show me that you are truly sorry for putting me through this. My patience has run thin, Eric. You can’t hide from me, Eric. Do the right thing Eric before my patience runs out! Merry Christmas from the guy you don’t want to piss off any further."

January 13, 1997

11. Detective Karin Eder from the Waterloo Regional Police Force was dispatched to EP’s residence as a result of a complaint EP made that his former roommate CG, was giving away his property.

12. Her cruiser was parked in front of a bank and while she was still in her cruiser Constable Burdett, whom she knew, approached her and saw that she had EP’s name on her mobile data terminal. He asked her why she was seeing EP and mentioned that EP broke into his house a couple of times and told her that EP was about to be arrested by Sergeant Schmidt for breaking into his home. As they were both walking Constable Burdett told her about the Christmas card he delivered to EP and asked her to look into the theft of his stereo equipment.

13. Later that day Constable Eder told Sergeant Schmidt about this conversation and she was asked to submit a report.

January 14, 1997

14. Sergeant Schmidt and Sergeant Culham went to the residence of CG, the former roommate of EP. Both CG and EP were present. Sergeant Schmidt retrieved the Christmas card from EP and it was subsequently handed over to the Guelph Police Service.

15. While at CG’s residence, the two Sergeants were told that EP’s stereo had been taken from CG’s apartment by two men. CG stated that he tried to resist, but one of the men opened his coat and showed him a shoulder holster containing a gun. As a result CG allowed them to take the stereo. One of these men was described as a black male.

16. Constable Burdett is black.

17. With this knowledge Sergeants Schmidt and Culham proceeded to Constable Burdett’s home, which was located on a short residential street ending at a river. They walked up to his porch and could hear music playing. The sergeants rang the doorbell and looked through the front door, from which they could see a message hand-painted on the wall, which read:

"When I catch you I’m going to kill you. And believe me … you’re as good as caught… Eric!"

18. Constable Burdett answered the door. Sergeant Schmidt told him he had some information for him and they were invited in. They observed that the house was being renovated.

19. Sergeant Schmidt asked to see where the compact disks had been located. Constable Burdett informed him that the area was cleaned up but Sergeant Schmidt stated that he still wanted to have a look. While Constable Burdett was speaking to Sergeant Schmidt, Sergeant Culham asked if he could have a look at the renovations.

20. Sergeant Culham took the opportunity to see whether the stereo equipment in the home matched the description of EP’s missing stereo. Sergeant Culham states that it was their belief that the stereo equipment may have been taken from CG’s place by Constable Burdett because he matched the description of one of the suspects.

The Allegations:

21. In July of 1997 Constable Burdett was charged with two counts of discreditable conduct. The allegations read as follows:

Count One: On or about the 25th day of December, while off duty you attended at the apartment located at *** Avenue North, Cambridge, Ontario. At this location you delivered an envelope containing a greeting card to EP. This card was addressed to EP and the card within contained words that you knew or ought to have known was inappropriate.

Count Two: On or about the 14th day of January, 1997 at your residence located at *** Avenue, Cambridge Ontario, a message was written on your wall within your residence which would be visible to someone looking through the front door. The message was, quote "When I catch you I’m going to kill you. And believe me … you’re as good as caught… Eric!", when you knew or ought to have known that this writing was inappropriate.

22. On July 2, 1998 the Hearing Officer found Constable Burdett guilty of both counts of discreditable misconduct and the following day imposed a penalty of demotion for four months from first class constable to second class constable.

23. These are the matters being appealed.

Motion to Admit New Evidence:

24. Prior to the commencement of this hearing, the Appellant sought to admit new evidence. This information related to the alleged theft of EP’s stereo from CG’s residence.

25. The Appellant asserts the following:

a) At the disciplinary hearing the prosecution adduced evidence that a robbery had occurred, that the Appellant was the main suspect, but that he had not been charged.

b) The Hearing Officer was left with the perception that the Appellant remained a suspect although not formally charged.

c) The possibility that the Appellant was involved in an unresolved criminal complaint was prejudicial to the Appellant and affected the Hearing Officer in his duty to act fairly and impartially.

26. It appears that prior to the hearing, CG had informed the Waterloo Regional Police that his complaint of a robbery had been a lie. CG was charged and convicted of public mischief.

27. These facts were not disclosed to the Appellant before the hearing and the Hearing Officer was never advised that the robbery did not take place. In fact, this disclosure was only made to the Appellant on July 28, 1998 (three weeks after the disciplinary hearing concluded) during an examination for discovery in a related civil matter between the Appellant and the Regional Municipality of Waterloo Police Services Board and the Guelph Police Services Board.

28. The Appellant argues that the prosecution had a duty to disclose this information and that the failure to do so both prejudiced the Appellant and affected the fairness of his hearing. We are requested to accept this evidence, set aside the decision of the Hearing Officer and order a new trial.

Decision on Motion:

29. Section 72(5) of the Police Services Act, R.S.O. 1990, c. P.15 as amended, permits the Commission on appeal to "receive new or additional evidence as it considers just". The Act does not set out what factors are to be taken into account. However, the principles set out in Palmer v. Her majesty the Queen (1980) 1979 CanLII 8 (SCC), 1 S.C.R. 759 at page 775 provide useful guidance. In brief these principles relate to due diligence, relevance, credibility and significance.

30. It is evident the information in question was not known to Constable Burdett. In our view, it is relevant, credible and significant. As a result, it would be just to admit it.

31. We are concerned that at the time of the disciplinary hearing, the prosecution had information available that CG had recanted the story implicating Constable Burdett and had been charged with public mischief. In our view this was relevant information which should have been brought to the attention of the Hearing Officer.

32. The prosecution had every opportunity to remove any cloud of suspicion that Constable Burdett was involved with a robbery when the prosecution had the following exchange during the examination-in-chief with Sergeant Culham.

Q. Now Sergeant you mentioned that you wished to see a stereo. Can you expand on that please?

A. Apparently two males had attended at CG's residence at *** Ave. and took EP’s stereo. And CG, I believe tried to put some sort of resistance and the fellow opened his coat and showed him a shoulder holster containing a gun, and he backed off and said, "take it." The description of at least one of the males was a male black and having the information that we had obtained earlier about the card from Burdett as well as Burdett’s thought that EP had broken into his residence we felt that it may have been him that had come to take the stereo…

Q. And in fairness to Constable Burdett he was never charged with any thing to do with the stereo, was he?

A. No, not at all.

Transcript of Disciplinary Hearing, PP 101 –102 lines 17 – 31 and lines 1 -17

33. There is no evidence that the Hearing Officer placed any relevance on the fabricated robbery allegation. Also, we do not know what impact this evidence had on the Hearing Officer.

34. However, the clear implication is that Constable Burdett was a serious suspect in a robbery involving the use of a firearm. This certainly must have had a prejudicial impact on the Hearing Officer’s assessment of his overall conduct and character. Fairness required that Constable Burdett was entitled to have his case considered without the unwarranted shadow of suspicion that he could have been involved in such a crime.

35. We find that this is an unacceptable oversight on the part of the prosecution who has a clear obligation to see to it that the information it provides to the Hearing Officer, is in no way misleading.

36. In the normal course of events, we would remit the matter back for a new trial. However, in this case the salient facts are not in dispute and there are no significant questions of credibility. Therefore, in the interest of concluding this matter, we are prepared to determine the appeal on the record taking into account this additional information which was not known to the Hearing Officer.

The Issues:

37. The Appeal raises three issues:

(1) Was Constable Burdett’s conduct discreditable?

(2) Can it be said that his conduct is connected to the reputation of the police force?

(3) Was the penalty appropriate?

38. Counsel for the Appellant submitted that Constable Burdett was the victim of a break and enter and was frustrated with the progress of the investigation by the Waterloo Regional Police Service. He was able to determine who the perpetrator was by going to second hand stores in Cambridge. He argued that all the events occurred in the City of Cambridge while the Appellant was off duty and therefore had no connection to the Guelph Police Force.

39. Counsel argued that although the conduct of a police officer who is off duty can be the subject of disciplinary proceedings, conduct while off duty, should be subjected to a different standard as police officers are not expected to be without faults and emotion. In support of this argument, he cited Leone and Rasmussen v. P.C. Catalano (Ont. Brd. Inq., November 4, 1992).

40. Counsel for the Appellant argued that the Hearing Officer misinterpreted S.74 (2) of the Act which requires an actual connection to the reputation of the Guelph Police Service. Section 74 (2) provides:

"A police officer shall not be found guilty of misconduct if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force."

41. Counsel for the Appellant submitted that at no time did EP, the recipient of the card, know that Constable Burdett was a police officer and that the absence of this connection is fatal to the charges. Regarding the sign on the wall, the Appellant argued that it was inside his house and not visible to anyone outside his premises. There was no evidence that anyone else but the two investigating officers saw it and no evidence as to the length of time the note was on the wall. There was therefore no likelihood of discredit to the police service.

42. Counsel for the Appellant submitted that the onus is on the prosecution to prove on clear and convincing evidence that the conduct complained of was likely to bring discredit on the reputation of the police force.

43. The Appellant also argued that consideration must be given to whether the particular conduct injured or offended the victim. If the victim was not injured or offended by the conduct then the allegation should be dismissed. EP testified that the card affected him in "no way, shape or form".

44. In support of these arguments, the Appellant cited Wells and Metropolitan Toronto Police Service (1969), 1 O.P.R. 21 (O.P.C.), Wagner v. P.C. Demers (Ont. Brd. Inq., April 28, 1994) and Harrison and Georgetown Police Service (1971), 1 O.P.R. 71 (O.P.C.).

45. Inspector Shard for the Respondent argued that there was an exchange of information, which took place over the police communication system, and this led to the Appellant receiving EP’s address. This, he argued, is a clear and unavoidable connection with his occupation as a police officer.

46. The Respondent submitted that the approach used to determine likely discredit has been established in Duriancik and Metropolitan Toronto Police Service (1982) 2 O.P.R. 582.19 (O.P.C.), Williams and Ontario Provincial Police (1995), 2 O.P.R. 1008 (O.C.C.P.S.), and Carmichael and Ontario Provincial Police (May 21, 1998, O.C.C.P.S.).

47. Inspector Shard argued that in these cases the approach is to examine the facts and to assume these facts are public. That assumption, he argued, is both reasonable and necessary. This is so because it is otherwise impossible for the prosecution to call meaningful evidence on the subject.

Decision:

48. Constable Burdett does not dispute the prosecution’s allegations that he delivered a Christmas card to an individual and that he had a message written on his wall, with the words alleged by the prosecution in the Notice of Hearing. However, he takes issue with the fact that either of these actions constitutes discreditable conduct.

49. Counsel for the Appellant asked in his oral submissions "What are the boundaries of private conduct?" For a police officer this boundary is often blurred as there is a minimum standard of conduct to which police officers must adhere in their private lives. The nature of the office necessitates a higher standard than that expected of the average citizen. While we agree that this higher standard of behavior is necessary, in our opinion it should only be applied in its strictest form, within the context of the role of a police officer. Certainly a police officer should do nothing in his or her private life that would compromise the ability to carry out his or her duties and to erode the trust of the public. Beyond that, a police officer should have the same freedom as any other citizen whose standard of behavior is in accordance with the reasonable expectations of society.

50. The Appellant has asked us to consider Leone and Rasmussen v. P.C. Catalano (Ont. Brd. Inq., November 4, 1992). In that case, after seeing the complainant remove a sign from the front yard of his home, the officer while off-duty used his private vehicle and pursued the complainants’ vehicle. The officer also insulted and threatened one of the complainants.

51. In the reasons for decision, the Board of Inquiry held that off duty conduct may be subjected to a different standard. The public is entitled to expect a certain standard of behavior from police officers whether off duty or on duty. However, certain actions might be considered to offend reasonable community standards when taken by an officer on duty and may not while off duty. There was an intrusion on the sanctity of the officer’s home and the Board found that he had the same right to be as angry and upset about an intrusion as anyone else.

52. Constable Burdett was obviously frustrated by the events surrounding the two incidents of breaking and entering his property. He was frustrated that the Waterloo Regional Police Service did not keep him informed and he was frustrated with having to repurchase his property. He was further frustrated by the second incident in which his equipment was stolen. His frustration obviously led him to try to recover his property by his own means and so he delivered his message to EP whom he suspected of breaking into his home.

53. The recipient of the card said that he received a "weird" card from a gentleman who was "nice, polite and well dressed" whom he had never seen before. He also testified that this card did not affect him in "any way, shape or form". EP was unaware that Constable Burdett was a police officer.

54. Counsel for the Appellant has asked us to find that this action on the part of Constable Burdett was not likely to bring discredit on the police service as there was no connection between Constable Burdett’s occupation and this action. We do not agree.

55. In our view, what Constable Burdett did can be perceived as threatening. The fact that the card had no impact on EP does not alter the nature of his act or make it right. As a police officer of many years standing, Constable Burdett ought to have known that personally delivering a threat cloaked as gentle persuasion in a Christmas card was not the way to deal with his situation.

56. As a police officer, he ought to have known that there is a process to be followed in an investigation and he should not have attempted to take the matter into his own hands. Moreover, we agree with Counsel for the Respondent that Constable Burdett received EP’s address because of his connection with the police service. By using his position as a police officer to allow him to resort to self-help, we find, is sufficient to constitute discreditable conduct.

57. We therefore deny the appeal with respect to this conviction.

58. The second charge of discreditable conduct pertaining to the angry scribbling on one wall of Constable Burdett’s home which was in the process of renovation. We are of the view that, notwithstanding the nature of the message, this conduct was essentially a private act.

59. The writing on an inside wall was seen by the Waterloo Regional police officers who went to his premises uninvited. However, by any realistic measure it was not visible to members of the public who might have been passing by. It could only be seen from outside the home by standing on Constable Burdett’s porch and peering through his open door.

60. Like every other citizen, a police officer is entitled to enjoy the privacy afforded by his or her own home and to express himself or herself as he or she wishes to the extent that is lawful. Angry thoughts scribbled in a personal diary or scratched on an internal wall in a private home under renovation is not conduct subject to discipline. We consider that Constable Burdett’s action had no practical connection with any member of the public, his employment or the reputation of the police service.

61. Accordingly, we find that the second charge against Constable Burdett cannot stand.

Penalty:

62. In assessing the appropriate penalty it is important to take into account a number of factors. These include the nature and seriousness of the offence, the ability to reform or rehabilitate the officer and the damage to the reputation of the police service. Other factors can include employment history and experience, recognition of the seriousness of the transgression, handicap or other relevant circumstances, provocation, the need for deterrence and any concerns arising from management’s approach to the misconduct in question.

63. The conduct in question in clearly unacceptable, but we do not consider it to be at the serious end of the continuum. Constable Burdett was understandably frustrated with the events surrounding the theft of his property and as a result felt compelled to take direct action. He chose poorly. That said, any damage done to the service would appear to be minimal.

64. From the perspective of deterrence, it is important that it is clearly understood that a police officer must follow the same process as any other citizen when he or she is a victim of crime and not seek or abuse internal information.

65. Constable Burdett has been employed with the Guelph Police Service since 1991 and during this time he has had an unblemished record. This is certainly to his credit. Further, there seems to be no suggestion that he cannot continue to perform well in the future.

66. All things considered, we reduce the penalty on the remaining count to seven days’ loss of pay.

DATED THIS 13TH DAY OF MAY, 1999.

Karlene J. Hussey Michele J. Shephard

Member, OCCPS Member, OCCPS