ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
LINDA PARLARDG Appellant
and
SERGEANT PATRICK GODFREY Respondent
and
ONTARIO PROVINCIAL POLICE Respondent
Presiding Members: E. E. Kelly Culin, Member Barbara Morland Wellard, Member
Appearances: Linda Parlardg, Appellant T. Carlton, Counsel for the Respondent Ontario Provincial Police Lorna Boyd, Counsel for the Respondent Sergeant Patrick Godfrey
Hearing Date: November 26, 2001
This is an appeal by Linda Parlardg from a finding of not guilty of neglect of duty by Superintendent John F. Carson (the "Hearing Officer") with respect to Sergeant Patrick Godfrey of the Ontario Provincial Police (the "OPP"). She asks that this Commission make a finding of guilt contrary to section 2(1)(c)(i) of the Code of Conduct contained in Regulation 927, R. R. O. 1990 as amended (the "Code") and that Sergeant Godfrey be dismissed.
Background:
On October 4th, 1999 at approximately 4:45 p.m., Linda Parlardg attended at her former matrimonial home located at 845 Muskoka Beach Road, Gravenhurst, Ontario. At that time, she had been separated from her spouse, Robert Parlardg, for approximately six months. She had no direct contact with him during that period. Robert Parlardg had continued to reside in the home since the separation.
Mrs. Parlardg returned to the residence to retrieve her winter clothing. She went with a friend. She had not advised Robert Parlardg of her intentions.
When she arrived at the residence, Linda Parlardg knocked at the door. Upon receiving no response, she opened the door and entered. After hearing a noise, she inquired as to anyone being home and Robert Parlardg came up from the downstairs. Subsequently, Mr. Parlardg pushed Mrs. Parlardg and there was a heated exchange of words. Mrs. Parlardg alleged that Mr. Parlardg threw her over a love seat, forced her out of the home and threatened to kill her.
Once out of the home, Mrs. Parlardg then drove with her friend to Orillia. Upon considering the matter, Mrs. Parlardg drove back to Gravenhurst at around 6:45 p.m. and telephoned the Gravenhurst Detachment of the OPP to report the assault and threat.
Linda Parlardg was interviewed by Constable Peter Jervis who obtained a statement and videotaped her at the Bracebridge Detachment. Linda Parlardg advised Constable Jervis that her husband kept guns in the home. She subsequently confirmed in cross-examination (as did Constable Jervis) that her main priority was the retrieval of her clothing. She told Constable Jervis that she did not want her husband arrested in the presence of their then 18-year-old son who lived in the home. She also advised Constable Jervis that she did not want her husband to go to jail and she asked if a peace bond could be obtained.
Constable Jervis discussed the matter with his supervising Sergeant, Patrick Godfrey. Constable Jervis contacted Robert Parlardg that evening to see if he would consent to Mrs. Parlardg returning to the residence to retrieve her winter clothing. Mr. Parlardg would not agree. Arrangements were then made for Linda Parlardg to re-attend the following morning at the residence at 9:30 a.m. to retrieve her clothing.
Although not clearly set out in the evidence, it would appear that there were plans to charge Robert Parlardg with assault and uttering a threat. This eventually occurred and a criminal trial took place in the Ontario Court of Justice. Robert Parlardg was found not guilty on the uttering charge and was required to enter into a peace bond as a result of the assault charge. There was no criminal finding of guilt.
The Allegations:
Sergeant Patrick Godfrey was charged with neglect of duty in that after having received information that Linda Parlardg was allegedly assaulted by her ex-husband and had firearms in the residence, he did not promptly:
- have Robert Parlardg arrested and charged;
- cause an application to be made for a search warrant to search for and seize firearms and ammunition from the residence or property of Robert Parlardg; and,
- failed to comply with policy on domestic issues.
After a disciplinary proceeding before the Hearing Officer on March 26, 27 and 29, 2001, Sergeant Patrick Godfrey was found not guilty with respect to all three allegations. Linda Parlardg appeals these findings.
Appellant's Position:
The Appellant states that the Hearing Officer erred with respect to his interpretation of the evidence, the weight that he attached to certain evidence and in many of his findings of fact. She suggests that he erred in his findings of credibility because he did not accept the Appellant's version of the events as they transpired on October 4th, 1999. She submits that the only possible conclusion based on the totality of the evidence is that Robert Parlardg should have been charged October 4th, 1999 and his firearms seized that evening.
She states that the process of the hearing itself was flawed. She suggests that certain witnesses were not called and she takes issue with the cross-examination "style" of Sergeant Godfrey's lawyer. She submitted that too much weight was placed on her reason for attending at the home (retrieval of her clothes) rather than on the alleged assault and the seriousness of it. She felt that the Hearing Officer was swayed by the finding of "not guilty" at the criminal trial and ignored Constable Jervis' evidence stating that he had reasonable and probable grounds to arrest Robert Parlardg and seize the firearms on the evening of October 4th, 1999.
She also argued that given Sergeant Godfrey's failure to act quickly, her personal safety was placed at risk and therefore Sergeant Godfrey should be dismissed.
Position of the Respondent, OPP
The OPP submits that it prosecuted Sergeant Patrick Godfrey according to the highest standards, called all the required witnesses and apprised the Hearing Officer of all relevant facts in order to support the charge against Sergeant Godfrey. Linda Parlardg was involved from the outset and chose to have the OPP take carriage of the prosecution. Counsel for the OPP submits that she cannot now argue that the investigation was inadequate. She was aware she was a party to the proceeding and in fact made final submissions to the Hearing Officer.
Position of the Respondent, Sergeant Patrick Godfrey
Ms. Boyd, on behalf of Sergeant Godfrey, takes great umbrage with respect to the allegations of impropriety at the hearing made against her by Linda Parlardg. She states that she acted within the scope of the law. She submits that this Commission, having reviewed all of the evidence in the transcripts and all of the exhibits, must find that the Hearing Officer did consider the totality of the evidence. He gave cogent reasons for his findings which can be supported by the evidence and that we should not overturn his decision.
She acknowledges that all domestic occurrences are serious. However, there are degrees of seriousness. Domestic assaults can range from a shove/push along a continuum to homicide. Sergeant Godfrey must make decisions and judgement calls every day. Based on the degree of the seriousness of this offence and based on his understanding of Linda Parlardg's level of concern regarding the continuation of the offence, he made a decision not to arrest Robert Parlardg that evening. Ms. Boyd argues that we should not second-guess that decision. She states that while perhaps this matter could have been dealt with differently, we must be cautious in judging someone's decisions "after the fact".
Ms. Boyd referred us to Mousseau and Metropolitan Toronto Police Service (1981) 2 O.P.R. 505 (O.P.C.) where this Commission stated at page 507:
The reasonableness of an officer's conduct must be examined in light of the circumstances as they exist at a particular time. An officer is expected to use discretion and judgment in the course of his duties on many occasions. The police officer's discretion or judgment ought not to be examined scrupulously by the benefit of hindsight, but it is essential to examine the circumstances under which the officer exercised discretion or independent judgment to see to what extent discretion was warranted.
Lorna Boyd further submitted that the Hearing Officer found, as a fact, that it would have been impossible for an arrest to occur on the evening of October 4th, 1999 and comply with the wishes of Linda Parlardg that her son, who resided at the address, "not be present". He also found that there was no evidence to support the reasonable grounds necessary for a firearms application (i.e. section 103 of the Criminal Code of Canada application to a Justice of the Peace to seize firearms). He also found that Sergeant Godfrey followed the OPP policy on domestic issues.
Decision
As this Commission has stated on many occasions, when facts are in dispute:
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 to 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 [whether] the credibility of witnesses cannot be reasonably accepted. 1
As stated in Bender and LeClair and Windsor Police Service (unreported, March 15, 2000, O.C.C.P.S.) at page 7 we must ask ourselves: "Are the conclusions of the Hearing Officer void of evidentiary foundation?" This Commission "should only intervene if the Hearing Officer made a manifest error, ignored conclusions or relevant evidence, misunderstood the evidence or drew erroneous conclusions from it."
There was ample evidence to support the decision of this Hearing Officer. Ms. Boyd, in her cross-examination of Linda Parlardg, brought to the fore that the primary reason for Linda Parlardg's complaint to the OPP was not her fear of Robert Parlardg when she was at the residence or when she was at the OPP station: it was her hope that the OPP could help her retrieve her personal belongings as soon as possible. The Hearing Officer rightly considered that Linda Parlardg attended at the residence unannounced after a six-month absence. She did not appear to have any fear of Robert Parlardg at the time. There was no evidence that Robert Parlardg followed Linda Parlardg or stalked her or telephoned her the evening of October 4th, 1999. There was ample evidence for the Hearing Officer to find that the seizure of the firearms was not an immediate concern of Linda Parlardg.
Should Sergeant Patrick Godfrey have instructed Constable Jervis to arrest Robert Parlardg that evening and seize the firearms? That is not our decision to make. Did Sergeant Patrick Godfrey act reasonably that night? We believe that he did. He did not neglect his duty. He handled a difficult and serious situation in a reasonable and professional manner. The Hearing Officer found no evidence otherwise. We have reviewed the transcripts of the hearing, reviewed the exhibits and read the Judgement itself. It is obvious that the conclusions of the Hearing Officer were not void of evidentiary foundation. Based on our review of the record, it is apparent to this Commission that the Hearing Officer was quite diligent in his review of all of the evidence and he demonstrated a good understanding as to what had transpired. We agree with his findings in that regard.
With respect to the process itself, we can find no fault whatsoever with the prosecution by the OPP. As well, we have reviewed the cross-examinations by Ms. Boyd and cannot find that she acted in any way other than as a capable, professional counsel. Her task was to cross-examine the witnesses and to elicit information that was of benefit to the position being advanced by Sergeant Godfrey. She did that professionally and with respect for the witnesses.
In conclusion, we find that the process was not flawed and that, in fact, a high standard of professionalism was employed by all individuals involved. Further, we find that the decision of the Hearing Officer is not void of evidentiary foundation, is supported by the evidence submitted and we find no reason to disturb his decision.
Accordingly, the appeal is dismissed.
DATED THIS 15TH DAY OF JANUARY 2002.
E. E. Kelly Culin Member, OCCPS
Barbara Morland Wellard Member, OCCPS