Constable Sean Bender and Constable Ron LeClair v. Windsor Police Service, 2000 CanLII 45057

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE SEAN BENDER AND CONSTABLE RON LECLAIR

Appellants

-and-

WINDSOR POLICE SERVICE

Respondent

DECISION

Panel: Frederic G. Farrell, Q.C., Member

Michele Shephard, Member

Hearing Date: Monday, November 15, 1999

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Presiding Members:

Frederic G. Farrell, Q.C., Member

Michele Shephard, Member

Appearances:

Jeffrey Hewitt, Counsel for the Appellants

Inspector Gerald A. Pocock, Agent for the Respondent

Hearing Date: Monday, November 15, 1999

1. This is an appeal by Constables Sean Bender and Ron LeClair from findings of neglect of duty contrary to section 1(c)(iii) of the Code of Conduct contained in Regulation 927, R.R.O. 1990 as amended (the "Code"). Constables Bender and LeClair do not appeal the sentence imposed on February 9, 1999.

Background:

2. On Sunday, February 1, 1998 at or about 1:00 a.m., Constable Bender and Constable LeClair were working off duty, but in uniform, operating a marked Windsor Police Ford Explorer on Wyandotte Street West between Victoria Avenue and Pelissier Street, travelling in an easterly direction in the curb lane in Windsor, Ontario. Constable Bender was the driver and Constable LeClair was a passenger in the front seat. A vehicle ahead of them acted in a peculiar manner and as a result the officers activated their emergency lights and siren. The police vehicle moved from the curb lane to the centre lane and came into contact with another vehicle travelling in the same direction, hereinafter referred to as the “Ochoa motor vehicle”. Constable Bender believed that some contact between the police vehicle and the Ochoa motor vehicle had occurred. The officers stopped their motor vehicle and investigated the circumstances, initially on Wyandotte Street West. Thereafter, the Ochoa motor vehicle and the police motor vehicle were moved into a nearby alley where the vehicles could be further inspected.

3. Windsor Police Service rules and regulations, policies and procedurals manual, section 63, deals specifically with motor vehicle accidents involving police personnel. Sub-section 63.1 states: “Every motor vehicle accident involving a service vehicle shall be investigated by a Sergeant of the Patrol Division.” Further, a departmental order dated December 9, 1993 provides that every motor vehicle accident involving a service vehicle shall be investigated by a Sergeant of the Patrol Division. It also provides that every motor vehicle accident involving an officer on or off duty within the City of Windsor shall be investigated by a Sergeant of the Patrol Division. There is also a further departmental order dated April 21, 1994 which provides that: “Motor vehicle collisions involving off duty members of the Windsor Police Service which do not meet the reporting criteria will be investigated by an officer superior in rank to the involved member.”

4. At the time of the incident, neither of the officers nor the civilians who occupied the Ochoa motor vehicle detected any damage to their respective vehicles. Constable Bender asked the civilians if they wanted to file a report, but at the same time indicated that filing a report would take a while. Thereafter he gave Jose Ochoa his business card bearing his name, as well as his telephone number. The civilians thereafter went on their way and neither Constable Bender nor Constable LeClair reported the incident to the Sergeant of the Patrol Division.

5. However, on Thursday, February 5, 1998, Jose Ochoa telephoned Constable Bender at the police station. While Constable Bender was in the presence of Constable LeClair, Constable Bender was informed by Mr. Ochoa that upon inspecting his vehicle in daylight the following morning, he detected damage to his motor vehicle. The damage claim was $300.00. No injuries were indicated at that time. Constable Bender indicated that Jose Ochoa could file a report. At this point neither officer brought the incident to the attention of the Sergeant of the Patrol Division. Constable Bender and Constable LeClair believed that there was no damage and therefore no requirement to report the incident.

6. Mr. Ochoa subsequently retained a lawyer who contacted the Windsor Police Service by letter dated March 18, 1998 alleging not only damage to the motor vehicle but also injury. Thereafter, the incident was investigated.

The Allegations:

7. The Appellants were arraigned on the following charges:

"It is alleged that on February 1, 1998 at the City of Windsor, Ontario you did commit the misconduct of neglect of duty by failing to work in accordance with orders without due permission or sufficient cause, contrary to section 1(1)(c)(ii) of the Code of Conduct of Regulation 123/98 of the revised Regulations of Ontario, 1998 and thereof contrary to section 74(1)(a) of the Police Services Act, R.S.O. 1990 as amended by the Police Services Amendment Act, 1997."

8. On November 2, 1998, the Appellants each entered a plea of not guilty. On January 27, 1999, a hearing commenced before Inspector David Stannard (the "Hearing Officer"). On February 5, 1999, both officers were found guilty as charged. On February 9, 1999, each officer was given a penalty of a loss of eight hours.

Appellants Position:

Jeffrey Hewitt, counsel for the Appellants challenged the findings of guilt on two broad grounds:

• lack of clear and convincing evidence to meet a finding of guilt; and

• procedural unfairness both before and at the hearing.

9. Under these two general headings, he raised four specific issues:

1.Was there clear and convincing evidence that an accident had occurred between the Windsor Police Service vehicle driven by Constable Bender and the Ochoa motor vehicle?

2. Was the hearing conducted in a fair manner in affording the defendants all aspects of natural justice?

3. Were the charges against Constables Bender and LeClair properly laid and if not, is it an abuse of the process to proceed with the charges?

4. Was the order of which Constables Bender and LeClair were found guilty of breaching clear as to the conduct required of the Officers?

5. With respect to the first issue, Mr. Hewitt challenged the credibility of two of the prosecution’s witnesses, namely Jose Ochoa and his wife Maria Ochoa. In particular, he argued that their evidence was inconsistent with respect to the time of the accident, the speed and movement of the motor vehicles. On the other hand, he argued that Constable Bender and Constable LeClair were very credible witnesses who were consistent with their observation on the night in question that no damage occurred to the vehicles. Overall, he argued that the evidence did not support the findings of misconduct and that Constable Bender and Constable LeClair were not attempting to avoid responsibility. He noted that Constable Bender gave Mr. Ochoa his Windsor Police Service business card.

6. With respect to the second issue, Mr. Hewitt argued that the original disciplinary hearing was not conducted fairly since the Hearing Officer refused to allow a line of questioning of certain witnesses by the defence and refused to allow the defence the opportunity to reply to the prosecution’s closing submissions.

7. With respect to the third issue, Mr. Hewitt argued that the Windsor Police Service did not follow its own directives in laying the charges against Officers Bender and LeClair. Specifically, the Windsor Police Service has a Committee of Review to consider possible disciplinary actions. The Committee had decided that formal discipline was appropriate for Constable Bender and informal discipline was appropriate for Constable LeClair. The Chief reviewed the recommendations but did not reconvene the Committee to discuss the recommendations as provided in Service directives. Rather he directed formal disciplinary proceedings against both officers. Mr. Hewitt suggested that it is unfair and hypocritical to find an officer guilty of not following a directive when the directive used to charge him is itself not followed. Accordingly, he argued that there had been an abuse of the process.

8. With respect to the last issue, Mr. Hewitt argued that the departmental order to have an accident involving a Windsor Police Service vehicle investigated by a patrol Sergeant was not clear since the order was silent with respect to such issues as the degree of an accident that needs to be reported, the actual reporting of an accident and the time frame to do so. He suggested that since the officers believed that no accident had occurred causing damage or injury, they were not required to make a report.

Respondent’s Position:

14. Inspector Gerald A. Pocock on behalf of the Respondent responded to the four issues raised by the Appellants. With respect to the first issue, Inspector Pocock argued that the test of clear and convincing evidence had been met. In particular, he suggested that while the evidence given by Jose Ochoa and Maria Ochoa contained contradictions, they were still credible witnesses. He argued that it should be kept in mind that they were civilians not accustomed to giving evidence. He asserted that there was no collusion or rehearsal by them which was clearly demonstrated, in his view, by their testimony. He asserted that the officers did not want to report this incident because they were performing “off duty work” without administrative approval.

15. With respect to the second issue, he stated that section 23(2) of the Statutory Powers Procedures Act, R.S.O. 1990, Chap. s.22 as amended gave the Hearing Officer the authority to limit such further examination or cross-examination of a witness where he was satisfied that the examination or cross-examination of that witness was sufficient to disclose fully and fairly all the matters relevant to the issues on the proceeding. Inspector Pocock stated that the Hearing Officer made the decision that the line of questioning of certain witnesses was not relevant to the issue before him and that he had authority to limit further cross-examination.

16. In so far as the allegation that the defence was denied the opportunity of full rebuttal at the hearing, Inspector Pocock pointed out defence was allowed to raise at least one issue on rebuttal. While he acknowledged that rebuttal had in fact been cut off, he suggested that the Hearing Officer made his decision based on the evidence and not on submissions by either the defence or the prosecution.

17. With respect to the third issue, Inspector Pocock noted that the Windsor Police Service Directive provided that the Chief of Police was not bound by the recommendations of the Committee of Review. Further, under section 41(1)(b) of the Police Services Act R.S.O. 1990, c. P. 15 as amended (the "Act"), the Chief of Police alone is responsible for maintaining discipline in the police force.

18. With respect to the final issue, Inspector Pocock argued that the order which Constables Bender and LeClair were found guilty of breaching was in fact clear and, imposed an obligation on them to report the accident to the Sergeant of the Patrol Division. In his view they should have called a patrol Sergeant to investigate the matter when it occurred.

19. Moreover, he noted that there was a second opportunity to report this occurrence when Constable Bender, in the presence of Constable LeClair, received a telephone call from Mr. Ochoa claiming $300.00 in damages to the vehicle.

Decision:

20. Both Constables Bender and LeClair were charged with neglect of duty by failing to work in accordance with orders without due permission or insufficient cause contrary to section 1(c)(ii) of the Code.

21. The Hearing Officer in his judgment of February 5, 1999 found both officers after being involved in a motor vehicle collision failed to work in accordance with orders by therefore failing to report it to a patrol Sergeant so that it could be investigated. This failure to report the accident was misconduct of neglect of duty contrary to the Code and therefore contrary to section 74(1)(a) of the Act.

22. The Appellants appealed the convictions on two broad grounds:

• lack of clear and convincing evidence that an accident had occurred between a Windsor Police motor vehicle and that of a civilian motor vehicle to justify a conviction; and

• procedural unfairness.

23. Based upon these two grounds, the Appellants argued four specific issues to which the Respondent replied. We shall address all four issues which encompass the two broad grounds for the appeal.

Issue One:

24. Was there clear and convincing evidence that an accident had occurred between the Windsor Police Service vehicle driven by Constable Bender and the Ochoa motor vehicle?

25. The witnesses for the prosecution were Mr. Ochoa, the owner of the civilian motor vehicle involved, his wife Maria Ochoa, Gary Dower who was an assistant body shop manager, and Sergeant Cassidy of the Windsor Police Service who ultimately investigated the incident after it became known to the Professional Standards Branch of the Windsor Police Service. Witnesses for the defence were Constables Bender and LeClair.

26. There were several discrepancies between evidence given by Mr. Ochoa and that of his wife Maria Ochoa. The recollection of certain facts, i.e. the speed of their motor vehicle, the time of the accident and the position of the vehicles. Likewise there were discrepancies between the testimony of Mr. Ochoa and that of the police officers with respect to lighting in the street and in the alley, and the use of flashlights. Clearly the credibility of the witnesses was an issue that the Hearing Officer had to determine.

27. However, the essential question for the Hearing Officer was whether or not there was an accident. Constables Bender and LeClair felt that there was no accident and therefore no duty to report the matter to a Patrol Sergeant in order that an investigation could be conducted. Mr. Ochoa stated that while he saw no damage at the time of the accident, he did notice damage to his car the following morning. On February 5, 1998, there was a telephone conversation between Constable Bender in the presence of Constable LeClair with Mr. Ochoa, at which time Mr. Ochoa alleged $300.00 damage to his vehicle arising from the incident of February 1st. Both Constables Bender and LeClair acknowledged the foregoing telephone conversation. Despite the telephone conversation of February 5th, neither Constables Bender nor LeClair reported the matter to the Sergeant of the Patrol Division.

28. The Appellants argued that the evidence of Mr. and Mrs. Ochoa was inconsistent and unreliable and therefore lacked credibility. It was suggested that the evidence of Constables Bender and LeClair was consistent and therefore more credible. The Respondent argued that Mr. and Mrs. Ochoa are civilians who are not accustomed to giving evidence and further that their testimony and the manner in which they delivered it demonstrated that there was no collusion or rehearsal. In viewing the evidence presented at the disciplinary hearing, the question for the Hearing Officer was one of credibility. Whose version of the events of February 1st was more truthful?

29. In Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), the Commission articulated the test to be applied where facts were in dispute. The Commission at page 1058 stated:

“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.”

30. The question to be asked in this case is: Are the conclusions of the adjudicator void of evidentiary foundation?

31. This is the test which we shall apply in this case. Further, and in conjunction with this test, it is a well established principle that an Appellant authority, like the Commission, should only intervene if the Hearing Officer made a manifest error, he ignored conclusions or relevant evidence, misunderstood the evidence or drew erroneous conclusions from it.

32. In Carmichael and Ontario Provincial Police (May 21, 1998, O.C.C.P.S.) at page 6, the Commission stated:

“The applicable burden of proof in this case is that of clear and convincing evidence. There must be weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to a reasonable conclusion that the officer is guilty of misconduct. We agree with the Appellant that the Commission can review whether there has been clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of the witnesses. In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight or value.”

33. The Hearing Officer heard from several witnesses, received and reviewed many exhibits during a two day hearing. All witnesses had their veracity tested by cross-examination. The Hearing Officer had the opportunity to view each witness during their examination-in-chief and upon cross-examination. He had the best opportunity to hear what they said, how they said it, how they reacted to the questions posed to them and their general demeanour.

34. From a close reading of the transcript of the hearing, and a reading of the judgment itself, it is apparent that the conclusions of the Hearing Officer were not void of evidentiary foundation. The Hearing Officer did prefer certain aspects of the evidence given by Mr. and Mrs. Ochoa to that of Constable Bender and Constable LeClair, which was his privilege. However, he also took into account the evidence of the officers and gave them the opportunity to explain their actions.

35. It is worth noting that on the transcript (Proceedings at Trial – p. 220) Constable LeClair indicated that Constable Bender had told him that he would advise the Sergeant at the conclusion of the shift. This conversation took place on February 1st immediately following the incident. If there was no accident, why would you make such a statement? Clearly the statement was consistent with their belief that there had been some contact between their motor vehicle and that of the Ochoa motor vehicle. In addition, the Hearing Officer took particular note of the telephone conversation between Constable Bender, with Constable LeClair present, and Mr. Ochoa on February 5th. Mr. Ochoa informed Constable Bender that he had damages to his vehicle in the amount of $300.00. The substance of this conversation was not denied but confirmed by both Constables.

36. We cannot find based on a careful review of the evidence, including the exhibits and the transcript of the proceeding at hearing, that the Hearing Officer made any manifest error or that he ignored conclusions or relevant evidence, or that he misunderstood the evidence or drew erroneous conclusions from the evidence. On the contrary, the Hearing Officer was quite diligent in reviewing all of the evidence and demonstrated a good understanding as to what had transpired.

37. The remaining three issues are procedural in nature and deal with the overall fairness of the hearing.

Issue Two:

38. Was the hearing conducted in a fair manner affording the defendants all aspects of natural justice?

39. The Appellants argued that the hearing was not fair because the Hearing Officer had objected to and refused a line of questioning of certain defence witnesses. The defence had made a preliminary motion at the commencement of the hearing requesting that the charges be quashed on the basis that the charges were not properly laid. Chief Kousik and Inspector Daryl Snyder were called by the defence. The defence wanted to question the Chief about a conversation he had with Constable LeClair following the Chief’s decision to initiate formal disciplinary proceedings against both officers. The Chief had not accepted the recommendations of the Committee of Review (formal discipline against Constable Bender and informal discipline against Constable LeClair) preferring to initiate formal discipline against both officers. The Hearing Officer felt that the conversation was not relevant to the motion before him since this conversation had taken place after the Chief had laid the charges.

40. Section 23(2) of the Statutory Powers Procedures Act states that a tribunal may reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.

41. The Hearing Officer made his decision to limit further examination of the Chief by the defence and gave his reasons for so doing. The Hearing Officer had concluded that additional examination of the Chief with respect to a conversation that he had with Constable LeClair after he made his decision to proceed with the charges was completely irrelevant to the issues that were raised on the motion. In other words, the contents of the conversation were irrelevant because the decision to proceed with the charges had already been made. Moreover, the Hearing Officer also restricted his decision with respect to the examination of the Chief on this question only insofar as it related to the motion. He added that it might be heard during some other part of the hearing but not at this time, i.e. on the motion. In our view, this was not unreasonable and the Hearing Officer had sufficient relevant information to deal with the matter before him.

42. The Appellants also argued that the Hearing Officer refused to allow the defence the opportunity to reply to the prosecution’s closing submissions. After the prosecution had completed its submissions, the Hearing Officer asked the defence if there was anything further from the closing statements or were they going to go "back and forth forever". Defence wanted to raise five areas and the Hearing Officer only permitted him to discuss one of those areas. Clearly further rebuttal was not only unwelcomed by the Hearing Officer, it was in fact refused.

43. From a procedural standpoint this was regrettable and the defence should have been given the opportunity for full rebuttal on the issues raised in the submissions of the prosecution. However, what was the effect of this refusal? Was this a denial of all aspects of natural justice? Disciplinary proceedings under the Act are not criminal trials. They are administrative proceedings subject to the duty of fairness. In this case, we are satisfied that over the course of two days of hearings the Appellants were able to present their case in a full and fair manner. At the conclusion of evidence they were able to make lengthy final submissions. While, the opportunity to reply to the prosecutions submissions was curtailed we do not believe taking all other factors into account, that this was an error of sufficient consequence to warrant overturning the Hearing Officers findings.

Issue Three:

44. Were the charges against Constables Bender and LeClair properly laid and if not, is it an abuse of the process to proceed with the charges?

45. Windsor Police Service Directive number 144-01(L)5 states:

(a) the Chief of Police or designate will review the recommendations and rationale of the PSB Committee of Review but is not bound by the recommendations of the Committee of Review; and

(b) should the Chief of Police or designate not accept the recommendations of the Committee of Review, he/she shall reconvene the Committee to review and discuss the Committee’s recommendations.

46. The Committee of Review examined the conduct of the two officers and recommended that Constable Bender receive formal discipline and Constable LeClair receive informal discipline. The Chief did not accept the recommendations of the Committee but decided to treat both officers on an equal footing and impose formal discipline against both of them. The Chief made that decision unilaterally and did not reconvene the Committee to review and discuss the recommendations as set forth in the Directive. The Chief’s decision was based upon his concern that the process would be delayed.

47. The Appellants argued that the charges were therefore not properly laid and the Respondent argued the contrary. Clearly the Chief did not follow his own Directive completely. However, under paragraph 5(a), while he is to review the recommendations of the Committee he is not bound by them. The ultimate decision with respect to discipline is that of the Chief. By virtue of section 41(1)(b) of the Act, the Chief is specifically imposed with the responsibility of ensuring that members of the police force carry out their duties in accordance with the Act, and he is also responsible for maintaining discipline within the police force. The Chief cannot abdicate his legislative role or fetter his discretion. The Chief made the decision to impose formal discipline against Constable Bender and Constable LeClair and it was his and only his decision to make.

Issue Four:

48. Was the order of which Officers Bender and LeClair were found guilty of breaching clear as to the conduct required of the Officers?

49. Section 63 of the Windsor Police Service Policy and Procedural Manual provides:

“Every motor vehicle accident involving a service vehicle shall be investigated by a Sergeant of the Patrol Division.”

50. Departmental Order December 9, 1993 provides:

“Every motor vehicle accident involving a service vehicle shall be investigated by a Sergeant of the Patrol Division. Every motor vehicle accident involving an officer on or off duty within the City of Windsor shall be investigated by a Sergeant of the Patrol Division.”

51. The Appellants argue that the above orders were not clear and explicit as to the conduct required of them since it was silent as to the degree of the accident that needs to be reported and when it needs to be reported. Further, since the officers did not believe that there was an accident they did not need to report at all. The Respondent argues that there was an accident, they knew there was an accident and accordingly they had a duty to report it.

52. We find that section 63(1) of the Windsor Police Service Policy and Procedural Manual and the department order of December 9, 1993 are both clear and explicit. In the event of an accident involving a service vehicle, there is an obligation to have the accident investigated by a Patrol Sergeant. Further, from the transcript, Constable Bender at page 153 admitted that he felt that there had been contact between the service vehicle and the Ochoa Motor Vehicle. Thereafter, Constable Bender stopped his vehicle and he and Constable LeClair investigated. From the transcript, at pages 219-223, Constable LeClair on cross-examination stated that Constable Bender told him that he would notify the Sergeant at the station about the matter. Further, as noted earlier, on February 5, 1998 in the presence of Constable LeClair, Constable Bender had a telephone conversation with Mr. Ochoa who was then claiming that his vehicle had $300.00 damage from the incident of February 1st. In short, Constable Bender and Constable LeClair had two opportunities to report this accident and they chose not to.

53. In conclusion, we are satisfied based upon a careful review of the evidence, the transcripts, the exhibits and the submissions made before the Commission on behalf of the Appellants and the Respondent that:

(a) there was clear and convincing evidence that an accident had occurred between the Windsor Police Service vehicle and the Ochoa motor vehicle requiring the Officers to report the incident to the Sergeant of the Patrol Division;

(b) the Appellants were not denied all aspects of natural justice;

(c) the charges against the officers were properly laid; and

(d) the order of which Constables Bender and LeClair were found guilty of breaching was clear as to the conduct required of them.

54. Having come to the above conclusion, the appeal is hereby dismissed.

DATED THIS 15TH DAY OF MARCH, 2000.

Frederic G. Farrell, Q.C. Michele Shephard

Member, OCCPS Member, OCCPS