ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE DEBORAH (DEBRA) GREGG
Appellant
-and-
MIDLAND POLICE SERVICE
Respondent
DECISION
Panel: G. Douglas Smith, Member
Michele J. Shephard, Member
Hearing Date: Tuesday, October 2, 2001
Hearing Location: Toronto, Ontario
Ontario Civilian Police Commission
250 Dundas Street West, Suite 605
Toronto, Ontario M7A 2T3
Tel: 416-314-3004
Fax: 416-314-0198
Website: www.ocpc.ca
Presiding Members:
G. Douglas Smith, Member Michele J. Shephard, Member
Appearances:
Gary R. Clewley, Counsel for the Appellant Steven M. Boorne, Counsel for the Respondent
Hearing Date: Tuesday, October 2, 2001
This is an appeal against the finding of guilt with respect to two counts of insubordination and one count of deceit made against Constable Gregg at a disciplinary hearing conducted before Superintendent (retired) Robert J. Fitches (the “Hearing Officer”) on January 29, 2001.
Further, it is an appeal against the penalty imposed by the Hearing Officer on March 16, 2001 that Constable Gregg resign within seven days or be dismissed from the Midland Police Service (the “Service”).
Background:
On November 23rd, 1999 a number of off-duty police officers from the Service and the Ontario Provincial Police (the “OPP”) were socializing in a licensed establishment known as “Cocktails and Shotz” in the town of Midland. At least one of the off-duty officers was involved in a physical altercation with a member of the public who received some injuries. Both the off-duty police officers and a group of friends associated with the injured man were asked to leave the premises.
The group of officers requested that they be permitted to wait until the other group had left, in order to minimize the risk of the fight resuming in the parking lot. The staff granted this request. During or shortly after the altercation, off-duty Midland police constable, Carolynn Pearsall phoned the Service and had a conversation with Sergeant Greg Andrews.
Soon thereafter, Sergeant Andrews and the Appellant (who was on regular duty at the time) left the station in a marked police cruiser and attended at the parking lot of Cocktails and Shotz. There is some dispute as to precisely when the cruiser arrived at the bar relative to when the off-duty officers exited the bar. However, it is clear that at some point the officers spoke with Sergeant Andrews and Constable Gregg in the parking lot. After a short time, the off-duty officers left the premises and Sergeant Andrews and Constable Gregg went about their business.
The Appellant did not conduct any investigation of the incident, submit an incident report, or make notes of her attendance at Cocktails and Shotz.
After leaving the bar, some of the off-duty officers drove to Constable Fawcett’s home in Penetang. The evidence indicates that while there, they discussed the incident and all agreed that it was minor, had been instigated by the citizen and that they were not going to report it.
On November 29th, 1999, the Appellant was interviewed by Sergeant Michael Osborne of the Service. The Appellant admitted to attending Cocktails and Shotz and gave the names of people she saw there. She denied knowledge of what had happened inside the bar.
On March 8, 2000 and on March 10, 2000, the Appellant was ordered to answer questions relating to an investigation of her conduct in relation to this incident. The Appellant offered to answer questions in writing. The investigating officers, Inspector DeCourcy of the Service and Detective Sergeant Malcovich of the Peel Regional Police Service, declined to accept answers in writing and insisted on an oral interview. The Appellant declined to participate in an oral interview.
Police Constable Gregg was charged with seven counts of misconduct
Neglect of Duty - When attending at an incident at Cocktails and Shotz Bar, Constable Gregg did not conduct an investigation into the matter.
Neglect of Duty - When attending at an incident at Cocktails and Shotz Bar, Constable Gregg did not submit an incident report as required by Midland Police Service standing orders.
Neglect of Duty - When attending at an incident at Cocktails and Shotz Bar, Constable Gregg made no notes in her notebook as required by Midland Police Service General Orders and Procedures.
Insubordination - When ordered to answer questions in relation to her attendance at Cocktails and Shotz Bar, Constable Gregg refused to do so.
Insubordination - When ordered to answer questions in relation to her attendance at Cocktails and Shotz Bar on a second occasion, Constable Gregg refused to do so.
Discreditable Conduct - As a result of her attendance at Cocktails and Shotz Bar, Constable Greg failed to conduct an investigation into possible criminal conduct and by so doing, prompted public comment on the adequacy of the response of the Midland Police Service.
Deceit - In her statement to Sergeant Osborne of the Midland Police Service relative to the incident at Cocktails and Shotz Bar, Constable Gregg related information that was false, inaccurate or misleading.
The Hearing:
The Hearing took place on June 7, 2000, September 5 and 6, 2000, October 10 and 11, 2000, November 13, 2000 and December 7 and 13, 2000.
The Hearing Officer felt that this case centered on, among other things, Constable Gregg’s knowledge or lack of knowledge of a fight or disturbance in the bar. In order to make a determination on the issue he looked for answers to the following questions.
When Constable Pearsall called Sergeant Andrews, did she tell him about the fight or a disturbance in the bar?
When Sergeant Andrews and Constable Gregg were at the police station, proceeding to the bar or sitting in the bar parking lot, did Sergeant Andrews tell Constable Gregg about the fight or a disturbance in the bar?
When speaking with Constable Pearsall or anyone else in the parking lot was anything said by any of the police officers, or was anything done by any other people in the parking lot that ought to have given Constable Gregg reason to suspect that there had been a fight or disturbance in the bar?
The Evidence
Constable Pearsall’s Call to Sergeant Andrews
Constable Pearsall gave conflicting testimony about what she heard and didn’t hear in the bar prior to the altercation. She stated that she had her back to the pool table when she heard a commotion and turned around to see a member of the public known as “Donny” on the floor and Constable Bob Houston standing over him. She was questioned more than once about her phone conversation with Sergeant Andrews but she could not recall whether she mentioned Constable Houston’s name or anything else that she may have said when she phoned to request that a cruiser be sent to the parking lot of Cocktails and Shotz.
She also testified that she had a conversation with Sergeant Andrews in the parking lot about a minor incident in the bar, but only spoke to Constable Gregg about when she might be teaching a course at the Y. However, in a typed statement dated November 29, she acknowledged that “I spoke to them briefly advising them that there had been a minor problem.”
Sergeant Andrews testified that he didn’t recall the substance of the telephone conversation with Constable Pearsall, but said that she did not discuss the specific incident. He said that he did not know why she wanted him to attend the parking lot.
There was a tape recording of a telephone conversation that Constable Gregg was having with a member of the public at the time Constable Pearsall called. This conversation was enhanced and in the background, according to the Hearing Officer, he clearly heard Sgt. Andrews say - “What d’ya mean” - “Is Bob OK” -“Donny” - “So, did Bob drop the guy-ya-what’s that-like a stone or what” -“No, no, no, no, think of yourselves here, OK”
This led the Hearing Officer to totally reject Sergeant Andrews’ testimony and find that Constable Pearsall’s answers under oath were deceptive at best. He also felt that Constable Gregg was close enough to Sergeant Andrews to have heard his end of the telephone conversation, even though she was speaking to a caller on another phone at the time.
Sergeant Andrews’ Discussions with Constable Gregg
Sergeant Andrews testified that he did not tell Constable Gregg why they were going to the bar because he did not know himself.
Constable Pearsall testified that Sergeant Andrews wasn’t always forthcoming with information and that “you sometimes wouldn’t know where you were going until you got there”. She also stated that she felt it wouldn’t have been unusual for Sergeant Andrews not to tell Constable Gregg what was happening.
Constable Gregg testified that she went to the washroom, checked her radar in her cruiser and made some notes about her phone conversation. She then went with Sergeant Andrews who drove at a non-emergency pace from the station to Cocktails and Shotz. During the drive, she filled him in on the telephone conversation she had just had which related to a Children’s Aid Society (CAS) matter.
The Hearing Officer felt that for Sergeant Andrews not to tell Constable Gregg about where they were going and why would have been out of character for any police officer and would fly in the face of safe police operations. He also felt that Constable Gregg would have asked questions, especially as the call had come from a colleague.
As a result, he rejected all of the above evidence. He did say that the most charitable interpretation he could accept is that the Sergeant said “you don’t want to know” when asked what was going on and, if that was the case, Constable Gregg would be exhibiting wilful blindness if she did not make any further inquiries.
Discussions in the Parking Lot
Constable Gregg testified that when they arrived at the parking lot there was nothing going on. She stated that four older gentlemen came out of the bar and went to their truck. A few minutes later, some police officers came out of the bar and she got out of the cruiser. Constable Pearsall came over to her side of the cruiser and asked her if she was teaching the fitness classes at the YMCA the next day. While she was having this conversation, she overheard someone saying that they thought there could be trouble in the parking lot as they were leaving. (She also mentioned this to Sergeant Osborne in her statement). About 3 to 5 minutes later everyone left.
The Hearing Officer found that although Constable Gregg did not suggest that Constable Pearsall or the ‘guys’ had spoken about the particulars of the situation inside the bar, there had to be some curiosity as to the reasons for their concerns. He concluded that a normal, reasonable person would have asked questions as to the background for the concerns.
Constable Jeff McKelvey testified that while in the parking lot, someone expressed the thought that there had been some problems inside the bar. Later, he testified that “to my knowledge, no one told Sergeant Andrews what had occurred inside the bar”
Sergeant Andrews testified that, while in the parking lot, he was unsure how far he was from the rest of the group, stating, “I don’t know where I was talking to Carolyn Pearsall alone. I couldn’t say for sure where they were”. Later in his testimony, he stated that he did not believe the group could hear him.
The Hearing Officer felt that Sergeant Andrews appeared to want to have it both ways (i.e. did not know where the group was, but no matter where they were, they couldn’t hear his conversation with Carolyn Pearsall). He rejected this evidence.
Constable Chris Patton testified that, while they were in the parking lot, he was watching Mr. A. Constable Patton went on to say that it “appeared he was wanting to fight”. He further stated that he didn’t point out the troublemakers to Sergeant Andrews.
The Hearing Officer concluded: “I simply can’t imagine this scene, given all of the circumstances of the events and the context in which Sergeant Andrews and Constable Gregg were called to the bar.”
The Investigation
Sergeant Osborne testified that, on November 27, 1999, Chief Hamelin and Inspector DeCourcy assigned to him the criminal investigation of the alleged events at Cocktails and Shotz on November 23,1999, after it came to their attention that a member of the public had been injured. He interviewed Constable Gregg on November 29 and received a statement from her pertaining to her involvement in the events of that evening.
Sergeant Osborne testified that, on November 29, he interviewed the citizen who had been injured that night and he observed an injury to his left eye.
He also testified that as a result of this investigation, criminal charges were laid against Constable Fawcett (assault with a weapon) and Constable Houston (assault causing bodily harm).
Sergeant Osborne testified that he interviewed Constable Pearsall on November 30 and received a written report from her about what happened in the parking lot. He stated that he did not ask her anything about what took place at Cocktails and Shotz.
Constable Gregg testified that the first she knew that there had been an altercation in the bar was on the morning of November 29 when Constable Rettinger had briefly mentioned that he had taken photographs of a person who had been assaulted and that someone in the office was going to be charged criminally. It was later that evening that she gave her statement to Sergeant Osborne.
In January of 2000, she received a notice that she was the subject officer in a neglect of duty investigation and that she could retain counsel. She found this unusual as she had previously received a similar notice in another case that had no reference to obtaining counsel. She spoke to her Association representative and at that time found out that Sergeant Andrews and Constable Pearsall had also received notices.
She became very concerned when Sergeant Osborne mentioned that he planned on having Sergeant Andrews charged criminally. She felt that they may charge her as well. She was also upset when they brought in an outside police service to aid in the investigation as the only other time that had happened was during another criminal investigation.
She testified that at the initial interview with Inspector DeCourcy and Detective Sergeant Malcovich she was told that it wasn’t about a criminal matter, that it was only a Police Services Act matter. She informed them that she was happy to respond to their questions provided that they put the questions in writing so that she could respond to them in writing, after having consultation with her counsel. She was told that there would be a subsequent interview. The following day, she was advised that the second interview would be the next day.
She spoke to her lawyer and he was not available for that time so she requested that her counsel advise Inspector DeCourcy, but the scheduled meeting was not changed. She attended that meeting with a junior member of her counsel’s firm. She was advised again that she had to answer the questions. She replied again that she would be more than willing to answer their questions if they provided them in writing and she could respond in writing. She further stated that they were not allowing her to exercise her right to counsel as he was not available that day.
Detective Sergeant Malcovich testified that he was requested to assist with the Chief’s complaint under Part V of the Police Services Act concerning the conduct of Midland officers only arising from their involvement in an incident at Cocktails and Shotz bar on November 23, 1999. His intention was to interview everyone from the Service who was involved on that night by way of a verbal question and answer format. He attempted to interview Sergeant Andrews but was advised that he had reported sick.
On March 8, 2000, he met with Mr. Harte (counsel for Constable Gregg) who indicated to him that he wanted any questions for his client in advance and that his advice to his client was that she will not answer the questions until she has consulted with counsel. Detective Sergeant Malcovich pointed out to Mr. Harte that she would be compelled to answer and if she didn’t, he would order her to answer and that if she refused she would be asked to attend on another day when the same order would be put to her. This would enable her to reassess her position if she chose to do so. He made it very clear that this was not a criminal investigation but simply an internal investigation. At the second interview on March 10, Constable Gregg again refused to answer the questions verbally, as ordered.
Inspector DeCourcy testified that a standing order to all members from Chief Paul Hamelin, dated October 26,1998, regarding reporting of incidents was:
… On every occasion when a member of the public makes a complaint to the Midland Police Service which requires any action to be taken by the Midland Police a report shall be filed providing both the information regarding the complaint, request of the complainant, and the action taken by the member in dealing with the complaint. The only incidents that will be classified as non-reportable are false alarms, community service, and traffic control. All other incidents are to be reportable incidents. It is the responsibility of the investigating officer to ensure that all final classifications of the incident reflects the true nature of the call. Once again, members are reminded that all persons spoken to in relation to a call for service, including the company name as it relates to the call, must be added to the incident along with any vehicles and property.
- Before reporting off duty the officer in charge shall ensure that all incidents have been thoroughly investigated, and that the proper action has been taken in regard to the incident. Any outstanding matters will be clearly documented and sent via e-mail to both Inspector DeCourcy and myself indicating the reason why reports are outstanding, or why no action has been taken. The accurate reporting of incidents is an essential part of policing function, and failure to do so will be seen as neglect of duty.
Disposition
- On January 29, 2001, the Hearing Officer found the Appellant guilty on all seven counts. On March 16, 2001, the Hearing Officer ordered that the Appellant resign within seven days or be dismissed.
Appellant’s Position:
As noted earlier, the Appellant is seeking to appeal the convictions with respect to the two counts of insubordination (for failing to answer oral questions on two occasions) and one count of deceit (relating to her statements to Sergeant Osborne).
Mr. Clewley on behalf of Constable Gregg asked us to consider:
- Did the Adjudicator err in finding that the Appellant was required to answer questions orally, and that her refusal to do so constituted insubordination?
He submitted that while the Service is certainly entitled to order an officer to provide a full and frank accounting of her actions, the Service is not entitled to dictate the form of that accounting.
He argued that a written statement allows a person to reflect upon their answers and avoids the confusion that may result from a misstatement.
He suggested that in the context of an interview in what is clearly developing as an adversarial relationship, a request to respond in writing is both eminently reasonable and the most likely to fulfill the objective of providing a full and frank accounting. He submitted that there is no precedent for a finding of insubordination in circumstances such as these.
- Did the Adjudicator err in finding that the statement given on November 29th, 1999 was deceitful?
He submitted that the standard of clear and convincing evidence requires that where a Hearing Officer makes alternative factual findings, the finding most favorable to the officer must be adopted. In his reasons, the Hearing Officer found:
The most charitable interpretation I would be willing to accept as to what was or was not said in the cruiser on the way to the bar would be that Sergeant Andrews, when asked what was going on, said, “you don’t want to know”, or words to that effect.
and later,
….it is my opinion that if questions were not asked of the off duty officers, they were not asked for a reason. The attending officers, Sergeant Andrews and Constable Gregg did not want to know. If they didn’t have knowledge, they would not be in a position to investigate their colleagues or recommend such an investigation.
Mr. Clewley argued that while the wilful blindness referred to above is sufficient to the findings of guilt for neglect of duty and discreditable conduct, it is not a sufficient basis for the finding of guilt with respect to the count of deceit.
He went on to argue that even if the Appellant was wilfully blind, nothing in the statement given on November 29th, 1999 could be false or misleading. The Appellant was not asked what her suspicions were or what she thought might have occurred, rather she was asked what her actual knowledge of events was. Mr. Clewley suggested by way of analogy, that if Constable Gregg was called to testify with respect to the assault in the bar, she could not give any evidence of what she ought to have known or would have known if she conducted an investigation. She could only testify as to what she did know. Accordingly, he argued that the finding of guilt with respect to the count of deceit was unreasonable.
Penalty
Mr. Clewley also is appealing penalty. This appeal is with respect to the disposition imposed on all seven convictions (i.e. Appellant resign within seven days or be dismissed).
He asked us to consider that the Appellant has an unblemished prior record during her 8 1/2 years with the Service. The Hearing officer heard testimony from a retired Midland officer who spoke very highly of her and said that he felt that he could count on her and that she was always quick to lend a hand.
The Hearing Officer was advised that Constable Gregg was a hard worker whose caseload showed that her productivity was among the highest in the Service. He received correspondence relating to work that she had done with and for the Huronia District High School, the Midland Secondary School, the Midland YMCA, and the International Association of Women Police and Community Living, Huronia to demonstrate that she was an active participant in her community and that these groups obviously appreciate her efforts on behalf of the Service.
It was noted that Sergeant Greg Andrews, the Appellant’s immediate supervisor on November 23rd, 1999, was found guilty on February 13th, 2001 of three counts of neglect of duty for failing to investigate, report, make notes of the November 23rd incident, one count of neglect of duty for failing to supervise the Appellant on that occasion, and one count of deceit similar to the Appellant’s and arising out of the same circumstances.
On May 14th, 2001, Hearing Officer Sweeney ordered that Sergeant Andrews be demoted to 3rd class constable. As of that date, Sergeant Andrews had been a police officer for 25 years and a supervisor for a considerable period of time.
It was further noted that Constable Pearsall was informally disciplined for her involvement in these events. Her penalty was loss of 24 hours pay.
Mr. Clewley submitted that the principle of parity of penalty is of fundamental importance to a just and fair system of discipline. He acknowledged that there will always be some disparity in order to take into account the personal and factual circumstances of a given case. However, he submitted that like offences ought to receive like penalties, and more serious offences ought to receive penalties proportionate to the level of misconduct involved.
He argued that on the facts of this case, the Appellant’s penalty ought to have been greater than that imposed on Constable Pearsall (given that she was off-duty at the time and that she did contact Sergeant Andrews), but less than that imposed on Sergeant Andrews (given his supervisory role). See: R.v.Murchie (1974) O.J. No. 630 (C.A.)
He also submitted that the Hearing Officer erred in finding that the failure to call evidence from co-workers was an aggravating factor. While evidence of co-workers can certainly act in mitigation there is no requirement in case law or statute that such evidence be called. He noted that, due to the small size of the Service, almost all of her co-workers were either involved in the investigation of her conduct or witnesses to the events. He suggested that requiring the Appellant to call such evidence placed an impossible burden upon her and if allowed to stand as a principle would unfairly discriminate against officers in smaller police services. Finally, he noted that the opinions of her supervisors were before the Hearing Officer in the form of her service record.
Mr. Clewley submitted that the Hearing Officer erred in terminating the Appellant. He argued that termination is the highest sanction available and ought only to be imposed where the misconduct is so severe that no other sanction would suffice or where other forms of discipline have been proven incapable of correcting the behaviour of the officer.
He noted that the Hearing Officer relied upon the case of Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) as authority for his decision to terminate the Appellant. However, it is noted that Hearing Officer Sweeney in his May 14, 2001 decision concerning Sergeant Andrews found that Williams could not provide a basis for termination in that case.
Specifically, Hearing Officer Sweeney stated:
In respect to Williams the appellate body identified the opportunitiesafforded the officer to resolve the matter as an aggravating factor.The similarity to the case before me is clearly evident. I have difficulty, however, accepting that the factual basis for the allegationin Williams was not the major motivation behind the decision with respect to penalty. Witnessing what is clearly a sexual assault on a woman, and failing to act, is considerably different than hearing of someone being punched, and failing to act.
On the same point, Mr. Clewley also drew our attention to Stitt and York Regional Police Service (1997), 3 O.P.R. 1130 (OCCPS).
He submitted that police discipline matters are governed by the principle of progressive discipline. He noted that this was the proper means to determine whether or not prior discipline has had a rehabilitative or deterrent effect on the offender. He argued that for that reason, the Ontario Court of Appeal in Ontario (Ministry of Community & Social Services) v. O.P.S.E.U. (1992), 1992 CanLII 7458 (ON CA), 11 O.R. (3d) 558 stated that a person not be considered a “repeat offender” or incapable of rehabilitation until a punishment has had the chance to take effect. Similarly, he noted that this Commission set out in Marsden and Metropolitan Toronto Police Service (1994), 2 O.P.R. 974 (OCCPS) “termination is the last resort and ought only to be imposed where the prospects for rehabilitation are negligible”. See also Coon and Toronto Police Service, (March 5, 1999, Supt. T. Kelly).
In summation, he suggested that there is no evidence that the Appellant cannot be deterred or rehabilitated by a penalty that falls short of termination. The Appellant had an unblemished record for 8 1/2 years and continues to enjoy support in the community. He concluded that there is simply no basis to believe that the Appellant cannot put this matter behind her and continue to serve the community well in the future.
Respondent’s Position:
Mr. Boorne, on behalf of the Service submitted that the Hearing Officer made no errors of fact or law and that both the decision and penalty of dismissal imposed on the Appellant are correct and ought to be confirmed by the Commission.
He submitted that there was no error in finding Constable Gregg was insubordinate on two separate occasions for refusing to participate in an oral interview as Insubordination as defined by the Code of Conduct found at O. Reg. 123/ 98 (the “Code”).
He noted that, in the context of this case, a finding of insubordination requires consideration of the following two questions:
1)Was the order to submit to an oral interview lawful?
- Did Constable Gregg have a lawful excuse for disobeying it?
Mr. Boorne argued that Detective Sergeant Malcovich, acting as the Chief’s designate, had the lawful authority to make the order he did, and Constable Gregg advanced no lawful excuse for disobeying it.
Mr. Boorne further submitted that the distinction sought to be drawn by the Appellant between oral and written questions has no basis in law and reflects a misunderstanding of the two questions for consideration. He suggested that it is a well-established proposition in law that in policing and other paramilitary organizations, the lawful commands of superior officers must be obeyed. In taking the oath of office, police officers accept the duties and responsibilities, as well as the powers that devolve upon them. One of these duties is to obey the lawful commands of superiors.
In this regard he draws our attention to: R. v. Finta (1994), 1994 CanLII 129 (SCC), 112 D.L.R. (4th) 513 (S.C.C.), R. v. Calder (1994), 1994 CanLII 8729 (ON CA), 92 C.C.C. (3d) 97 (Ont. C.A.), Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1974), 1974 CanLII 702 (ON HCJDC), 5 O.R. (2d) 285 (Div. Ct.) and Willette v. Canada (Royal Canadian Mounted Police Commissioner), July 10, 1986 (Fed. C.A.).
He submitted that the factual finding, underlying the finding of misconduct for deceit, was a finding that the Appellant had actual knowledge of the circumstances surrounding the incident, not that she was wilfully blind to them. He noted that in support of this finding of actual knowledge, the Hearing Officer stated:
The notion that Sergeant Andrews did not relate to Constable Gregg the details as related to him by Constable Pearsall is simply inconceivable. That is totally out of character for any police officer, it flies in the face of safe police operations and I reject that evidence in its entirety. Further, I find the notion that Constable Gregg did not make inquiries of Sergeant Andrews equally inconceivable. Any police officer would want to know what they were getting into. The fact that Constable Gregg’s colleague had made the phone call only heightens the probability of these questions being asked by her
Sergeant Andrews has been described as being routinely interested in his own safety and that of his colleagues. He appears to have an interest in Health and Safety issues. That being the case, I simply cannot conceive that he wouldn’t relate the nature of their pending activities, whether he viewed them as minor or significant.
- In response to the Appellant’s suggestion that the Hearing Officer made a factual finding that she was wilfully blind and therefore cannot have given a “false, misleading or inaccurate” statement he quotes the Hearing Officer as further saying:
By applying the doctrine of Wilful Blindness, it is unnecessary to prove that the officers had “real” knowledge. Even if they did not have this ‘real’ knowledge, which I have already found that they did have, their deliberate unwillingness to investigate the circumstances of the situation and ask probative questions are tantamount to ‘actual knowledge’ as defined by the Supreme Court of Canada and others.
Mr. Boorne asserted that it is clear that the Hearing Officer’s finding was not that the Appellant was wilfully blind, but that she had actual knowledge of the events that transpired at that bar. He argues that it was this knowledge, which was withheld from Detective Sergeant Osborne, was a proper basis for a finding of deceit.
He submitted that the test on a penalty appeal is that a penalty should not be disturbed unless the appellate body is convinced that the Hearing Officer applied the wrong principles, or it has found the sentence to be clearly unreasonable. See Bright v. Konkle (Ont. Bd. Inq., March 14, 1997)
He noted that the penalty decisions should not be interfered with unless the Hearing Officer failed to take into account relevant legal principles and penalty factors identified from the case law, or unless the penalty is clearly inadequate or excessive. He argued that, in this case, the Hearing Officer carefully examined the penalty factors applicable and made proper determinations as to whether they were aggravating or mitigating, based on the evidence as he found it, and based on his findings as to the credibility of witnesses who testified before him.
He submitted that where the police officer not only committed misconduct, but engaged in a course of conduct over time which attempted to cover up or deceive investigators, impede the investigation, or gave evidence under oath, which is found to be untruthful or disbelieved, dismissal is an appropriate penalty.
In response to the Appellant’s parity of penalty argument, he pointed out that the Appellant and Sergeant Andrews did not face identical allegations of misconduct. He noted that while the Appellant was found to have committed two separate acts of insubordination, Sergeant Andrews took sick leave once ordered to attend for an oral interview, and thus was able to avoid being charged with insubordination. In addition, they were tried separately before different Hearing Officers and not all of the same witnesses were called.
The Decision:
A. Convictions
There appears to be no dispute with respect to the evidence leading to the two charges of insubordination pursuant to section 2(1) of the Code against the Appellant.
Insubordination under the Code of Conduct is defined as follows:
- (1) Any … police officer commits misconduct if he or she engages in …
(b) INSUBORDINATION, in that he or she …
(ii) without lawful excuse, disobeys, omits or neglects to carry out any lawful order.
The fundamental questions to be answered by the Hearing Officer pertaining to the two charges of Insubordination are as follows:
Did the Appellant receive an order?
If the Appellant received an order, was it a lawful order?
Did the Appellant disobey, neglect, or omit to carry out that order?
If the answer to 3 is in the affirmative, then did the
Appellant have a lawful excuse for doing so?
There is no dispute by the Appellant that, on both March 8 and 10, 2000, she received a direct order to answer questions orally, and that she failed to do so. There is no dispute by the Appellant that the orders were lawful.
We do not accept Mr. Clewley’s arguments that the Appellant did not commit acts of insubordination in that she offered to answer the questions in writing. It is a well-established proposition in law, that this Commission has consistently followed, that the lawful commands of superior officers must be obeyed unless there is a lawful excuse for not doing so. See Orr and York Regional Police Service (26 March, 2001, OCCPS).
In this case, not only did the Appellant’s superior officers order her to answer questions but they also ordered her to do so orally. Furthermore, it was made clear to the Appellant that the questions were with respect to an investigation under the Police Services Act and that they were not conducting a criminal investigation. It was not an option for the Appellant to refuse to obey the order to answer the questions in an oral manner and, in the alternative, propose that she would answer the questions only in a written form. It was perfectly legal and proper that the Appellant’s superior officers not only order her to answer the questions but also to dictate, as part of the order, the form in which the questions were to be answered.
We do not accept Mr. Clewley’s argument that the Hearing Officer erred in finding that the statement given by the Appellant on November 29th, 1999 was deceitful. This Commission has ruled in many previous decisions that in order to overturn a Hearing Officer’s decision that we must find that his decision was void of evidentiary foundation. The test was articulated by the Commission in Williams and Ontario Provincial Police at page 1058 where we 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.
The question then to be asked in this case is: are the conclusions of the Adjudicator void of evidentiary foundation?
- The Hearing Officer heard much testimony from many witnesses following which he concluded that the Appellant had knowledge of the details of the altercation that occurred in Cocktails and Shotz. As a result, the answers that she gave Detective Sergeant Mike Osborne on November 29, 1999 that she had no knowledge of the fight were false. Consequently, the Hearing Officer found the Appellant guilty of misconduct as a result of her deceit pursuant to section 2(1)(d)(ii) of the Code.
Section 2(1)(d)(ii) of the Code reads as follows:
2(1) Any … Police officer commits misconduct if he or she engages in …
(d) DECEIT, in that he or she …
(ii) wilfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties.
We do not accept the position of the Appellant that the Hearing Officer made a factual finding that Constable Gregg was wilfully blind and therefore cannot give a false, misleading or inaccurate statement about something that she knew nothing about.
On the contrary, it is clear from reading the decision of the Hearing Officer that he found that Constable Gregg had knowledge of the details of the altercation that occurred in Cocktails and Shotz. The Hearing Officer’s analysis as to doctrine of wilful blindness was clearly not the basis of his decision, as he had already concluded that the Appellant had actual knowledge of the events that occurred in Cocktails and Shotz. In his decision, the Hearing Officer, after discussing the law of wilful blindness, stated:
by applying the doctrine of Wilful Blindness, it is unnecessary to prove that the officers had ‘real’ knowledge. Even if they did not have this ‘real’ knowledge which I have already found that they did have. (emphasis added)
- Consequently, we are fully satisfied that the Hearing Officer heard all evidence, made plausible findings of credibility of the witnesses, gave careful and detailedreasons for his findings and applied the appropriate test that on clear and convincing evidence Constable Gregg was guilty of deceit.
B. Penalty
The appeal of the penalty of dismissal or resign within 7 days as imposed by the Hearing Officer, raises the most troublesome aspect of this case.
When assessing penalty there are a number of key factors that must be considered and weighed. These include the seriousness and nature of the offence, the ability to reform or rehabilitate the officer in question and the damage to the police force that would occur should the officer remain with the force. In addition, this Commission has in Mattison and Niagara Regional Police Service (1996), 3 O.P.R 1117 at p. 1120 (OCCPS) set forth a variety of other factors to be considered. These include acknowledgement of responsibility, employment history, the need for deterrence, personal difficulty and consistent management approach to the misconduct. As well, any penalty imposed must be within the range for previous offences.
There is no doubt that the conduct of the Appellant is most troublesome. Constable Gregg had a duty as required by legislation, her oath of office and the policies and procedures of the Service, to investigate any alleged criminal offence that occurred in the Cocktails and Shotz bar. She had a further obligation to submit an incident report, make notes in her notebook and provide a full accounting of her activities to her superior officers when ordered to do so.
It is clear that she did none of the above. It is certainly not helpful to the Appellant that the Hearing Officer found her testimony during the hearing not to be truthful. As a result we do agree that the cumulative nature of the offences and the behavior of the Appellant to be serious. The question remains, however, whether this conduct should give rise to the ultimate penalty of dismissal.
The dismissal of an officer is the most serious punishment that can be imposed in a disciplinary proceeding. This punishment must be reserved for those cases in which the conduct is so reprehensible that the officer is no longer useful to the service.
We must, therefore, first consider the seriousness of the offence. The Hearing Officer in his decision relied heavily on Williams and Ontario Provincial Police . The seriousness of the offence in the Williams case far outweighs the offence on the facts before us. Williams was a case in which an officer observed a woman being sexually assaulted and took no action to prevent the assault or protect the woman. This is far different from an officer failing to investigate an alleged assault in a bar, as in the present case.
The only similarity between Williams and the present case was the conduct of the officers, following the original offence, by refusing to be fully truthful and by failing to co-operate in the investigation of the offence. Furthermore, we must take note of the fact that during the Appellant’s initial attendance at the Cocktails and Shotz bar, she was under the direct command of a superior officer, namely Sergeant Greg Andrews. In some measure, it was Sergeant Andrew’s responsibility, as the senior officer, to make certain that the necessary investigations of the alleged offence were carried out.
It no doubt would have placed Constable Gregg in an extremely difficult situation to attempt to carry out an investigation which her superior officer, who was with her at Cocktails and Shotz, clearly for whatever reason, did not feel necessary to conduct. This is by no means to excuse the Appellant’s behavior or diminish her duty as a police officer, but it does put into context the dynamics that were clearly in action at the bar.
It is also very unsettling to note the comments of the Hearing Officer concerning the conduct of several of the police witnesses. He stated stated:
I found the behavior of several police witnesses in these proceedings to be extremely troubling. Some of the witnesses in these proceedings displayed open hostility, while some were obviously not being at all candid in their responses. I have had the opportunity to listen to literally hundreds of witnesses - police and otherwise - over my eight years adjudicating these proceedings. To say that I have never observed such unprofessional and disingenuous conduct by a group of police officers would not in any way be overstating my thoughts. It is very important to note that this conduct was not restricted to members of the Midland Police Service.
With very few exceptions, the evidence offered by several police witnesses illustrated an obvious attempt to color or alter the true facts of this case, or in the very least, refrain from offering to tell the ‘whole truth’ as required by their oath.
These comments clearly set the tone and the atmosphere in which Constable Gregg was operating. This again is by no means to excuse the Appellant’s conduct but does put her actions in some perspective.
Furthermore, we agree with the submissions of Mr. Clewley that the Hearing Officer erred in finding the failure to call evidence from co-workers as an aggravating factor in reaching the sentence. There is no doubt that evidence in support of a police officer from either co-workers or other members of the community can be helpful in assessing penalty. We disagree, however, that the lack of such evidence should give rise to a negative inference. The Hearing Officer must only consider the evidence before him or her and should not be drawing conclusions on evidence or the lack thereof that was not submitted at the hearing.
We then must look at the ability to reform or rehabilitate the officer. Constable Gregg has been a member of the Service for 8 1/2 years and has an unblemished record. She is married and at the date of the hearing was expecting her first child.
It is well established that police discipline matters are governed by the principle of progressive discipline. Ontario (Ministry of Community & Social Services) v O.P.S.E.U enunciated the proposition that a person cannot be a repeat offender or incapable of rehabilitation until a punishment has had the chance to take effect.
Constable Gregg has not, until the present case, been subjected to discipline as she has had an exemplary career. As the Hearing Officer stated in his decision:
She is obviously a very energetic and capable officer and there are no indications of previous disciplinary matters. Her history in this regard must act as a mitigating factor in my disposition.
We feel that this mitigating factor was not given sufficient weight.
Further, we do not agree that the reinstatement of Constable Gregg will cause irretrievable harm to the Service. It is clear from the comments of the Hearing Officer that there were issues in this case beyond than the misconduct of Constable Gregg. We fail to see how the termination of Constable Gregg alone will resolve these issues.
One of the basic principles of the discipline process is consistency in sentencing. This principle, however, must be applied taking into consideration the unique fact situations in each case. It is, therefore, very difficult to assess each case and to apply that fact situation to other cases. With this in mind, however, we are impressed with the similarities of this case to that as reported in Stitt and York Regional Police Service. In that case, Constable Stitt had been a police officer for 7 years and his record did not contain any other disciplinary convictions. Briefly, the fact situation in that case was that Constable Stitt fell asleep in his cruiser and was awakened by a civilian who advised him of a break-in of a convenience store.
As in the present case, Constable Stitt not only did not investigate the break in, but later denied any contact with the civilian. Constable Stitt was found guilty of neglect of duty and deceit and was demoted to 2nd class constable for 1 year and forfeiture of 48 hours. This was, subsequently, on appeal to this Commission reduced to demotion of 6 months and forfeiture of 24 hours. We do not agree with the submissions on behalf of the Appellant, however, that Constable Stitt’s conduct was worse than that of Constable Gregg and as a result she should receive a lesser sentence. In fact, the lack of co-operation exhibited by Constable Gregg in the subsequent investigation and the resulting hearing, following the incident at Cocktails and Shotz, makes her conduct more serious than that of Constable Stitt.
For the above reasons, the appeal of the convictions of the two counts of insubordination and the one count of deceit are dismissed. The appeal with respect to penalty will be allowed in that the penalty will be reduced from that of dismissal or resignation within 7 days to a penalty of demotion to second class constable for a period of one year.
DATED THIS 11TH DAY OF DECEMBER 2001.
G. Douglas Smith Michele J. Shephard
Member, OCCPS Member, OCPC