ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE ROY FRIGHT
Appellant
and
HAMILTON POLICE SERVICE
Respondent
Presiding Members: Barbara Morland Wellard, Member Brenda Weese, Member
Appearances:
Doug Allan, Agent for the Appellant
Brian Duxbury, Counsel for the Respondent
Hearing Date: Tuesday, September 10th, 2002
On the 5th day of December, 2001, Superintendent Terry Sullivan (the “Hearing Officer”) found Constable Roy Fright, in his role as Acting Sergeant, guilty of the disciplinary offence of Neglect of Duty for failing to ensure that appropriate reports were submitted in relation to an incident. On January 17th, 2002, the Hearing Officer assessed a penalty of 4 hours to be taken from overtime, court time or sick time.
Constable Fright appeals the finding of Neglect of Duty but not the penalty assessed.
The Facts:
By Notice of Hearing dated March 19th, 2001, the Appellant was charged with one count of misconduct contrary to section 2(1)(c)(i) of the Code of Conduct found at Ontario Regulation 123/98 (the “Code”). The single count of misconduct against Constable Fright was as follows:
… on or about the 18th of September, 2000, while a sworn member of the Hamilton-Wentworth Regional Police Service (now Hamilton Police Service), did, without lawful excuse, neglect or omit promptly and diligently to perform his duty as a member of the Police Service by failing to ensure that appropriate reports were submitted in relation to an incident to which the Police Services responded at Centre Mall (Daniel’s Restaurant) and/or by failing to … submit a report in relation to the incident as an assisting officer, thereby committing the offence against discipline of Neglect of Duty.
The events giving rise to this allegation were not in dispute. An agreed Statement of Facts was filed at the hearing by both the Appellant and the Respondent and received as Exhibit 3. It read as follows:
On Monday, September 18th, 2000 at approx. 3:32 pm an anonymous male caller called police and stated that he had observed two males seated at the patio at Daniel’s Restaurant, located within the Centre Mall, and that one male looked like he had the butt of a gun hanging inside his shirt above his pants.
P.C. Mark Stringer was the primary unit dispatched to the call and a total of (7) uniform officers, including the supervisor, Acting Sergeant Fright and two plainclothes officers responded to the scene. The first unit arrived within one minute of the call being dispatched, and the response was then co-ordinated to ensure that a proper perimeter was set up around the restaurant.
P.C.s McConnell and McCullough, the Divisional Youth Officers, were in plainclothes in an unmarked vehicle and did surveillance of the patio that is outside of the mall facing onto the south parking lot of the mall. They confirmed that the two males described by the caller were in fact there. Once uniform officers were in position, the plainclothes officers walked up to the two males, identified themselves as police officers and took hold of the male described as possibly having the gun. His arms were held up as he remained seated in his chair. The search revealed that the male, subsequently identified as R.T.1, 41 yrs., was in fact wearing a heart monitor, which was held by a shoulder harness.
R.T. was in the company of his son, J.T., who was the other male seated at the table. In addition, his wife, A.T., was also present at the table. Both the plainclothes officers offered R.T. apologies and he was asked if he required any medical intervention. He declined.
All patrol officers had cleared the scene prior to Acting Sergeant Fright’s arrival with the exception of P.C. Harbison, who waited to explain the situation, and the two plainclothes officers were just leaving. Acting Sergeant Fright spoke with R.T. for approximately 5 minutes and explained to him what had happened.
No reports on this incident were submitted at the time. Acting Sergeant Fright’s supplementary report was submitted as a result of a Senior Officer’s direction to him. A follow-up established Acting Sergeant Fright did not direct, but expected that the officers involved would have submitted their reports as per policy. Acting Sergeant Fright was under no obligation to clear this particular report. Any supervisor, including ones from the following shift, could have cleared the report without him knowing.
Hearing Officer’s Decision:
The Hearing Officer reviewed the Hamilton Police Service’s policy and procedure set out at paragraph 4.3.09 and in particular, paragraph 1 which states as follows:
Unless otherwise directed by a supervisor or investigator in charge, the initial officer dispatched to or receiving the complaint shall submit the appropriate report. Assisting officers shall submit a supplementary report.
The Hearing Officer stated that the Notice of Hearing outlined two separate allegations, either of which proven would constitute a finding of Neglect of Duty; i.e. either Acting Sergeant Fright failed to ensure a report had been done and filed or failed himself to submit a report with respect to the incident. Both the prosecution and the defence agreed that a finding of misconduct with respect to one of the allegations included in the single charge was sufficient to establish misconduct.
The Hearing Officer stated that he found clear and convincing evidence that Constable Roy Fright, in his role as Acting Sergeant on September 18th, 2000, did commit the offence of Neglect of Duty when he failed to ensure that appropriate reports were submitted in relation to the incident. He found that there was no clear and convincing evidence that Constable Fright did commit the offence of Neglect of Duty by himself failing to submit a report.
The Hearing Officer said that it was a natural expectation of the role of supervisor to ensure that a report was filed by the officers who attended at the incident. Failure to ensure that that report was filed was Neglect of Duty.
Appellant’s Position:
Doug Allan, on behalf of Constable Fright, made a number of submissions with respect to the findings of the Hearing Officer. Firstly, he stated that the conviction for Neglect of Duty was based on the assumption that it was the Appellant’s responsibility to ensure that a report was submitted by the police officers who attended at the incident. He submitted that it was not appropriate for the Hearing Officer to base his decision on “natural expectations”. He was required to find as a fact that there was a clear and unequivocal rule or policy that was breached.
He stated that completed reports are placed in a tray at the police station. The Staff Sergeant or Sergeant at the station checks these reports for accuracy. The reports are not checked on a regular basis. Reports could be checked by supervisors on following shifts.
He submitted that the Service did not have an audit system for supervisors to check the calls for service against the reports submitted by the officers. Any checks of the calls as against the reports are infrequently done at best.
He further submitted that the Hearing Officer erred when he disregarded the evidence of witnesses who stated that there was no clear and unequivocal police service policy for patrol supervisors with respect to the directing and the checking of the submission of reports by officers. He stated that the Hearing Officer ignored evidence of the witnesses with respect to the lack of adequate “tools” for patrol supervisors or station supervisors to check reports submitted against the calls for services received.
Finally, he submitted that the Hearing Officer erred in finding that there was clear and convincing evidence that the Appellant committed Neglect of Duty when he failed to ensure that the investigating officers completed a report. Simply put, his submission was that as there was no rule, no policy, and no system, there was no corresponding duty that could be neglected.
Mr. Allan further submitted that the Appellant had not received any formal training nor had he ever been instructed on the purported requirement of checking for reports for calls attended by patrol officers. He submitted that the Appellant had not observed any supervisor or patrol officer routinely performing this function of checking reports against calls for service. The Appellant had passed formal training in 1982 and 1984 to become qualified to be a temporary replacement Sergeant. As a result, the Hearing Officer could not find the Appellant in neglect of a duty because he had not been trained on the expected method to perform his supervisory duties pertaining to directing and checking officer’s reports.
In support of his position, Mr. Allan indicated that the evidence showed that supervisors had not previously been disciplined for failing to ensure that officers submitted reports.
Mr. Allan also brought the following cases and articles to our attention: Canadian Labour Arbitration, Third Edition, 2002 Canada Law Book Inc., 4:1500 and 7:414, Soley and Ontario Provincial Police (1996), 3 O.P.R. 1098 (O.C.C.P.S.), Mousseau and Metropolitan Toronto Police Service (1981), 2 O.P.R. 505 (O.P.C.), Bender and Leclair and Windsor Police Service (15 March, 2000, O.C.C.P.S.) and Ian J. Roland, “Parts V and VI of the Police Services Act-Public Complaints and Discipline”, undated.
Respondent’s Position:
Mr. Brian Duxbury, Counsel for the Service submits that we, as an appellate tribunal, cannot second-guess the findings of the Hearing Officer. Provided the Hearing Officer’s decision is not unreasonable in view of the evidence before him, we have no authority to set it aside and substitute our own finding of guilt or innocence. He relies on the oft-quoted case of this Commission, Williams and Ontario Provincial Police (1996), 2 O.P.R. 1047 (O.C.C.P.S.) in this regard. He states that when one considers the seriousness of this incident including the potential for civil liability it was and should have been a natural expectation that Acting Sergeant Fright ensure that the appropriate officer file an occurrence report.
He further submits that there is a clear policy in place and refers us to the role of the Supervisor as set out in the Policy for Reporting, Investigative Responsibilities and Distribution of Reports of the Hamilton Police Service. Article 4 provides:
Supervisors shall ensure that the reports are complete and include the reporting officer’s printed name and signature.
Mr. Duxbury’s position is that the only possible supervisor to which that policy could apply in this situation was Constable Fright: - the patrol sergeant.
In support of this position he draws to our attention, the following cases: Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.), Calder v. Funnell, Ont. Bd. Inq., 25 January, 1995, Nassar v. College of Physicians and Surgeons of Manitoba [1994], M.J. No. 532 (Man. Q.B), affirmed, [1995], M.J. No. 252 (Man. C.A.) and Mousseau and Metropolitan Toronto Police Service, supra.
Decision:
We accept the position advanced by the Respondent. Our role is not to second-guess the decision of the Hearing Officer or substitute our opinion. Rather, our function is to assess whether or not the Hearing Officer has made a manifest error, ignored conclusions or relevant evidence, misunderstood the evidence or drew erroneous conclusions from it. Only in those cases where a Hearing Officer’s reasoning is evidently wrong, contains error or cannot reasonably be accepted will we interfere.
This is not the case here. On September 18, 2001 the Service received a report of a man carrying a concealed weapon in a busy shopping mall. It was seen as so serious that at one point all two-way police radio traffic (except that related to the gun call) in Hamilton was stopped. The conclusion was a tactical takedown of a 41-year old man wearing a heart monitor in a public restaurant.
The fact that no report was filed in this situation was remarkable. Not until a member of the public contacted the Chief of Police did he become aware of the incident and the fact that no report had been filed pertaining to same.
The Appellant urges us to find that the only individuals responsible to ensure that the reports are filed were the officers who attended the scene. We cannot accept that proposition. Supervisors must supervise. The buck stops there. We find that there is a clear and unequivocal policy in place with respect to this issue. Supervisors have a duty to ensure that complete signed reports are filed. This did not occur.
Whether or not the policy is followed in practice, in our opinion, is irrelevant. We do not find as a fact that other officers in similar situations have not been disciplined for failing to ensure that reports have been filed. This evidence was both unsubstantiated and anecdotal.
We do agree that a system to ensure that the policies of this force are followed should be put in place to avoid a situation such as this re-occurring.
That being said, we agree with the conclusions of the Hearing Officer that the failure to ensure that a report was filed in this particular instance, considering the potentially serious repercussions to the Service, brings the matter to such a level as to warrant the finding of Neglect of Duty with respect to Constable Fright.
The appeal in the circumstances is therefore dismissed.
DATED THIS 18TH DAY OF NOVEMBER 2002.
Barbara Morland Wellard
Member, OCCPS
Brenda Weese
Member, OCCPS