Constable Kevin Brannagan v. Peel Regional Police Service, 2003 CanLII 75381

ONTARIO CIVILIAN POLICE COMMISSION

DATE: August 25, 2003

FILE: OCPC-03-018

CASE NAME: CONSTABLE KEVIN BRANNAGAN AND THE PEEL REGIONAL POLICE SERVICE

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

Constable Kevin Brannagan APPELLANT

-and-

Peel Regional Police Service RESPONDENT

DECISION

Panel: Murray Chitra, Chair Sylvia Hudson, Vice-Chair

Hearing Date: July 8, 2003

Hearing Location:

Appearances: Leo A. Kinahan, Counsel for the Appellant Andrew Heal, Counsel for the Respondent

I. Introduction

[1]. This is an appeal from a decision of Superintendent M. Stephenson (the “Hearing Officer”) dated January 24, 2003 convicting Constable Kevin Brannagan of one count of neglect of duty contrary to section 2(1)(c)(i) of the Code of Conduct found at O. Reg. 123/98 (the “Code”).

II. Background

[2]. On the evening of Monday, May 14, 2001 at approximately 8:00 p.m. Mr. M. and two friends were in a field behind the theatres at the Trinity Common Mall in the City of Brampton. They were approached by a man. He was Constable Kevin Brannagan.

[3]. Constable Brannagan is a member of the Peel Regional Police Service (the “Service”). That evening he was working with the Neighborhood Policing Unit of 21 Division. He was conducting his duties in "plain clothes" and driving an unmarked police vehicle. He was alone.

[4]. Constable Brannagan had observed two of the young men drinking beer. He identified himself as a police officer and asked whether they had drugs. He then requested that they accompany him to his vehicle. Mr. M. asked for identification. Constable Brannagan lifted his shirt to show a badge attached to his belt. Mr. M. was not satisfied and asked for picture identification. Constable Brannagan responded by lifting the other side of his shirt and showing his handgun. Mr. M. asked whether this was meant to scare them.

[5]. Almost immediately after this exchange Constable Brannagan struck Mr. M. in the face with a closed fist. The young man fell to the ground. Constable Brannagan then searched all three men and used his radio to do an “off-line” CPIC check. After receiving a response, Constable Brannagan sent the three men on their way with a warning about consuming liquor in a public place. No charges were laid.

[6]. Two days later, Mr. M went to 22 Division and filed a public complaint. He provided a written statement. He reported that he had been “punched in the face by a plainsclothes [sic] officer”. He thought the incident had occurred about 5:00 p.m. on May 14th. He did not have a name or badge number for the officer, but gave a physical description and provided the license number of the unmarked car. He also gave the name of his two friends as witnesses.

[7]. Over the next few months Mr. M’s allegations were examined by officers from the Service’s Public Complaint Investigation Bureau (the “Bureau”). Statements were taken from the two witnesses. There was initial confusion because of Mr. M’s belief that the incident had occurred around 5:00 p.m. At that time, the police unmarked car was being driven by officers other than Constable Brannagan. Eventually, on September 18, 2001 Detective Brian Smithson and Acting Detective Howell spoke to Constable Brannagan and confirmed that he was the officer identified in the complaint.

[8]. The same day, a letter was prepared and sent by internal Service mail to Superintendent Foley at the Airport Division where Constable Brannagan was then working. The Superintendent was the Divisional Commander at that time. He was asked to provide Constable Brannagan with a copy of a formal notice that he was the subject of a public complaint. As well, Superintendent Foley was asked to have Constable Brannagan submit a report and provide investigators with related “1) MEMORANDUMS: 2) NOTES, AND, 3) DOCUMENTS/PHOTGRAPHS ETC.” Detective Brian Smithson was identified as the designated complaint investigator.

[9]. On October 2, 2001 Constable Brannagan submitted a two-page report with photocopies of his notes for May 14th to his immediate supervisor, Staff Sergeant Dolan. In this report Constable Brannagan acknowledged striking Mr. M. He explained that he did so because he believed that given M’s confrontational demeanor and body language (i.e. “right hand closed into a fist and he shifted his weight back while moving a step closer to me”) that he was in imminent danger of assault.

[10]. The report and notes were sent by internal service mail from the Airport Division to the Bureau at 2 County Court Blvd. in Brampton. It is not clear precisely when the report was received because it was not date stamped. However, it is evident that once it was reviewed by Detective Smithson that he “then formulated the opinion that misconduct has occurred and … set about preparing a complex brief of this incident.” The brief appears to have been completed by October 31st. It was then was forwarded to Inspector Brian Cryderman who was the Officer in Charge of the Service’s Professional Standards Bureau. Inspector Cryderman subsequently recommended to the Chief of Police that disciplinary charges be brought against Constable Brannagan.

[11]. A Notice of Hearing was prepared alleging two counts of misconduct. It was dated March 22, 2002. A copy was served on Constable Brannagan on April 4, 2002. The first charge alleged unnecessary use of force contrary to section 2(1)(g)(ii) of the Code. The second charge alleged neglect of duty contrary to section 2(1)(c)(i).

[12]. It is that second charge which is the subject of this appeal. The specific allegation against Constable Brannagan was that in relation to events of May 14, 2001 “Constable Brannagan kept no detailed notes of the encounter, did not submit an occurrence report and did not submit a Use of Force Report as required by Peel Regional Police Directive.”

The Hearing

[13]. On May 28, 2002 prior to hearing any evidence, a motion was brought on behalf of Constable Brannagan pursuant to section 23(1) of the Statutory Powers Procedure Act R.S.O. 1990, c. S. 22 as amended. That provision permits a tribunal to make an order “to prevent an abuse of its processes”.

[14]. The argument was made that it would not be proper to permit the disciplinary hearing against Constable Brannagan to proceed given the Service’s failure to follow the mandatory requirements of section 69(18) of the Police Services Act R.S.O. 1990, c. P. 15 as amended. That section requires that a notice of hearing be served upon an officer within six months of “the facts on which a complaint is based first came to the attention of the chief of police” unless the local board “is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing”. No such delay was authorized in this case.

[15]. The Hearing Officer denied the motion in an oral judgment on June 14, 2002. He found that the limitation requirements had been met. He noted that it was only in early October that the Service was able to conclusively establish that Constable Brannagan was subject officer of the complaint. Further, he found that given the normal workings of the chain of command and Service’s internal mailing system that the key admissions contained in Constable Brannagan’s report of October 2, 2001 would not have been received by complaint’s investigators prior to October 7th. Accordingly, the Notice of was served within the required six months.

[16]. The disciplinary hearing proceeded. Evidence was received from Mr. M and his two friends and a number of exhibits admitted. There was one defence witness. On January 24, 2003 the Hearing Officer found Constable Brannagan not guilty of unnecessary use of force. The Hearing Officer concluded that the evidence of the three prosecution witnesses was lacking both in corroboration and credibility. However, he found Constable Brannagan guilty of neglect of duty with respect to the keeping of his notes and failure to submit a use of force report. A penalty was imposed, which for the purposes of this appeal is not relevant.

[17]. The same day the Hearing Officer forwarded a report to the Chief of Police. It included a copy of his written reasons with respect to both the two charges and the earlier motion. This report was copied to both the prosecutor and Inspector MacDonald in Professional Standards.

[18]. On January 27, 2003 Constable Brannagan was sent an internal memorandum from Inspector McDonald entitled “Notice of Decision” pursuant to section 68(7) of the Act. This Notice appears to have included a copy of the reasons with respect to the two charges dealt three days earlier. There is no reference in the Notice to the earlier ruling with respect to the motion.

[19]. Mr. Kinahan, on behalf of Constable Brannagan filed an appeal with this Commission by way of a faxed Notice on February 23, 2003.

Issues

[20]. This case raises two important questions. They are:

1. Was the Notice of Hearing served on Constable Brannagan on April 4, 2002 within the six-month limitation period required by section 69(8) of the Act?

2. Was the Notice of Appeal faxed to the Commission on February 23, 2003 within the 30-day limitation period required by section 70(1) of the Act?

Appellant’s Position

[21]. Mr. Kinahan argued that the Hearing Officer erred in the oral ruling of June 14, 2002.

[22]. He noted that section 69(18) requires a Notice of Hearing to be served on an officer before “six months have elapsed since the facts on which a complaint is based first came to the attention of the chief of police”. Mr. Kinahan suggested that on the facts of this case this could only refer to one of three dates: May 16, 2001, September 18, 2001 or October 2, 2001.

[23]. He noted that Mr. M made his complaint that he had been assaulted by an unidentified officer on May 16, 2001. A Notice of Hearing was not served on Constable Brannagan until April 4, 2002. That was more than ten and a half months later.

[24]. Mr. Kinahan pointed out that complaints investigators were able to confirm that Constable Brannaghan was the officer involved when they spoke to him on September 18, 2001. The Notice of Hearing was served on him six and a half months after that date.

[25]. Mr. Kinahan acknowledged that this appeal is not with respect to the disciplinary allegation of assault. Rather it concerned a conviction for failure to make complete notes of the events in question or file a use of force report.

[26]. He noted that Constable Brannagan filed a report and submitted a copy of his notes with his Staff Sergeant on October 2, 2001 concerning his involvement. Assuming this was the date that the facts with respect to allegations of neglect first came to the attention of the Service, it would have still been two days beyond the six months contemplated by section 69(18).

[27]. Mr. Kinahan argued that in the absence of any proof of when this report was received at the Bureau the Hearing Officer should not have relied upon his personal knowledge about the working of the Services internal mailing system to effectively extend the limitations period by several days. In Mr. Kinahan’s view such a finding was completely speculative.

[28]. Mr. Kinahan argued that in the absence of authorization by the Peel Regional Police Services Board to delay serving the Hearing Officer was obliged to either quash or stay the disciplinary charges against Constable Brannagan. He argued that the Respondent had more that ample time to have sought the permission Board to grant an extension of time. Indeed, he argued that the Act, rules of natural justice and procedural fairness required such action.

[29]. On these points he drew our attention to Terrio and VanRuyven (4 October, 1993, Ont. Bd. Inq), McLean and Peel Regional Police Service (7 March, 2002, Hearing Officer B. Cryderman), Coulbeck and Metropolitan Toronto Police Service (23 November, 1995, Hearing Officer T. Kelly), Ontario Provincial Police v. Lamont [1983], O.J. No. 1325 (Ont. Div. Ct.), Re Giles and Halton Regional Police Service et al. (1981), 1981 CanLII 1955 (ON HCJ), 33 O.R. (2d) 666 (Ont. Div. Ct.), Gage v. Attorney General of Ontario (April 6, 1992, Ont. Div. Ct.), Ramsay v. Toronto (City) Commissioners of Police (1988), 1988 CanLII 4706 (ON HCJ), 66 O.R. (2d) 99 (Ont. Div. Ct.), Misra v. College of Physicians and Surgeons of Saskatchewan 1988 CanLII 211 (SK CA), [1988] S.J. No. 342 (Sask. C.A.) and R. v. Morrisey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.).

[30]. The second issue concerned whether or not Constable Brannagan had filed his appeal in a timely manner. Section 70(1) of the Act requires that an officer file an appeal within thirty days of “receiving notice of a decision after a hearing”.

[31]. Mr. Kinahan argued that Constable Brannagan has never received proper notice of the decision of the Hearing Officer with respect to his motion of May 18, 2002. He argued that neither the fact that his client was present for the oral judgment of June 14, 2002 or that his agent may have subsequently ordered a transcript constitutes notice within the meaning section 70(1). On this point he drew our attention to Sipar and Schertzer et al. (29 November, 1999, O.C.C.P.S.) and section 77(1) of the Act.

[32]. Mr. Kinanhan concluded by requesting that we overturn the finding of misconduct and quash the Notice of Hearing and stay any further disciplinary proceedings.

Respondent’s Position

[33]. Mr. Heal disagreed with the Appellant and in some measure with the Hearing Officer on the question of when the six-month limitation period should start.

[34]. Mr. Heal drew our attention to the process set out in Part V of the Act for the handling of public complaints. He noted the various steps in the decision-making process and the timelines involved. He identified the different options available to a complainant to request a review by the Commission.

[35]. He argued that as a practical matter a Chief of Police can only decide if particular acts might constitute misconduct and warrant a hearing when an investigation is concluded and he or she has reviewed a final investigative report. As such, he suggested that in this case the 6-month limitation period should have commenced once when the Chief received Detective Smithson’s brief and Inspector Cryderman’s recommendations. On this point he cited Moyle and Palmerston Police Services Board (1995), 2 O.P.R. 1016 (O.C.C.P.S.).

[36]. He also noted that the Hearing Officer found that the Officer in Charge of the Professional Standards Branch was the Chief’s designate with respect to misconduct matters and it would have been appropriate to use the date of his receipt of the Detective Smithson’s brief as the start of the six-month period (if that date were known).

[37]. Mr. Heal also pointed out that the Notice of Hearing indicated that the final investigative brief was prepared on October 31, 2001. As an alternative, he suggested that this might be an appropriate time from which to start the six-month period running.

[38]. Mr. Heal argued that the Act does not place a limit on either the length of time required to complete an investigation or submit an investigative report. He suggested however, that this does not mean that investigators can proceed at their leisure. He noted that they are governed by common law principles relating to “inordinate or inexcusable delay”. On this point he cited Duriancik and Ontario (Attorney General) (1994), 1994 CanLII 10970 (ON CTGDDC), 114 D.L.R. (4th) 504 (Ont. Div. Ct.), reversed 1997 CanLII 14480 (ON CA), 147 D.L.R. (4th) 191 (Ont. C.A.), Ramsay v. Toronto (City) Commissioners of Police supra., and Police Complaints Commissioner v. Will (1993), 67 O.A.C. 317 (Ont. Div. Ct.).

[39]. Leaving this aside, Mr. Heal argued that it was perfectly fair and reasonable in this case for the Hearing Officer to determine that it would take at least a week for Constable Brannagan’s report to travel up through the chain of command and from the Airport to the Public Complaints Investigation Bureau.

[40]. On the second issue Mr. Heal argued that the Appellant had not filed his appeal in a timely manner. He suggested that this appeal is essentially a revisiting of the Hearing Officer’s ruling on the original motion.

[41]. He pointed out that Constable Brannagan had his ruling on that point on June 14, 2002, yet he did not file his appeal until February 23, 2003. Mr. Heal suggested that this was well beyond the 30-day appeal period set out in section 70(1) of the Act.

[42]. He argued that the oral decision was sufficient actual notice of what was akin to a motion for summary judgment in civil proceedings and as such any appeal should not await the ultimate disposition of the complete case. On this point he drew our attention to the recent Commission decision in Gough and Peel Regional Police Service (5 June, 2003, O.C.C.P.S.).

[43]. In conclusion, Mr. Heal asked that we dismiss the appeal as either not being filed in a timely manner or being without merit.

III. Decision

[44]. The facts in this case are straightforward.

[45]. On May 14, 2001 a young man was struck by a police officer. Two days later he filed a complaint. He was not able to name the officer, but could provide a description and vehicle licence number. The file was assigned to an officer in the Service’s Public Complaint’s Investigation Bureau.

[46]. Initially, the investigation proved difficult. There had been no arrests. No incident or use of force reports had been filed. There was some confusion on the part of the complainant about precisely when this incident occurred. As a result, it would appear that the investigator had difficulty determining not only whether the alleged assault had happened let alone whether a police officer had been involved.

[47]. This changed on September 18, 2001. The investigator and a colleague spoke to Constable Brannagan. He acknowledged that he was the unnamed plain clothed officer in question. He was formally requested in writing through his commanding officer to prepare a report explained what had occurred and to provide copies of his notebook and any other related documents.

[48]. On October 2, 2001 Constable Brannagan completed his report and submitted it along with copies of his notes to his Staff Sergeant. They were processed through the normal chain of command and eventually found their way from the Airport to the Bureau’s offices in Brampton. Unfortunately, when the documents arrived, they were not date stamped.

[49]. In his report Constable Brannagan acknowledged striking Mr. M. He provided an explanation. His notes of this incident were scant and made no mention of any use of force. After reviewing this material, the complaints investigator formulated the opinion that misconduct had taken place and began preparing a brief.

[50]. It would appear that this brief was completed by October 31 and forwarded through the chain of command with the ultimate result being a Notice of Hearing served on Constable Brannagan on April 4, 2001. Was this Notice served in time?

[51]. Section 69(18) of the Act reads:

69(18) If six months have elapsed since the facts on which a complaint is based first came to the attention of the chief of police … no notice of hearing shall be served unless the board … is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing.

[52]. The purpose of this provision is self-evident. As the Commission noted in Moyle and Palmerston Police Services Board at page 1022 it is to “prevent delay and ensure a speedy process.”

[53]. To our mind the six-month period does not commence from the date of the making of a bald and unsubstantiated allegation of wrongdoing against a police officer. Rather, as was noted in Moyle at page 1023 it commences at the point in time when a review of the evidence establishes a “clear body of factual information supporting allegations of alleged misconduct”.

[54]. This appeal concerns an allegation of failure to make proper notes and submit required reports. It is obvious that Detective Smithson, the Service’s designated investigator only received copies of Constable Brannagan’s notes in early October of 2001. Further, it was also at this same point in time that it became obvious from Constable Brannagan’s formal reply that the mandated use of force reports had not been prepared.

[55]. Detective Smithson “then formulated the opinion that misconduct ha[d] occurred”. We agree with the Hearing Officer that this was the date when the necessary factual information supporting the allegations of misconduct in question was established and the limitation period commenced.

[56]. We do not agree with Mr. Heal that the limitation period should be calculated from the point in time when Detective Smithson finished writing his brief in late October. Nor do we feel that it commenced at some unknown later time when the brief was reviewed by other Service officials. To our mind, it is clear that Detective Smithson was the chief’s designated complaint’s investigator pursuant to section 64(1) of the Act. When the information came to him in early October, for all practical purposes it came to the attention of the Chief.

[57]. That being said, one of the obvious difficulties that the Hearing Officer had to contend with was the fact that Constable Brannagan’s report of October 2, 2001 and attached notes were not date stamped when they were received at the Bureau’s office in Brampton. The Hearing Officer found that based upon his knowledge of the workings of the Service that this report could not have made its way through the Airport command structure and then traveled through the internal courier system to Brampton in less than a week.

[58]. We feel that given the nature of this hearing (i.e. an administrative procedure of an employment nature) that this was a reasonable conclusion that was within the Hearing Officer’s authority to make. As such the Notice served on Constable Brannagan on April 4th was within the six-month period contemplated by section 69(8) of the Act.

[59]. That then brings us to the question of the timeliness of this appeal. Section 70(1) of the Act states:

70(1) A police officer or complainant may, within 30 days of receiving notice of a decision made after a hearing held under subsection 64(7) or 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

[60]. This provision makes it clear that the appeal period commences within 30 days of receipt of “notice of a decision”.

[61]. Mr. Heal asserted that on the basis of the decision in Gough and Peel Regional Police Service supra. the 30 day appeal period commenced when the Hearing Officer rendered his oral decision on June 14, 2002 on the motion. In the alternative he argued that it commenced when Constable Brannagan’s agent ordered a copy of the transcript of this ruling.

[62]. We do not agree. Section 68(7) of the Act makes it clear that a Hearing Officer is obliged to promptly provide an officer with written notice of an action taken during the course of a disciplinary hearing. It might be argued that this provision should be narrowly construed and restricted only to decisions related to either conviction or penalty. However, to our mind that would be wrong.

[63]. We believe that natural justice and procedural fairness require that an officer receive proper notice of a decision. This means in writing. As was stated by the Commission in Sipar and Schertzer et al. at page 7:

It is our view that a notice of the decision must include a written copy of the decision. Section 77(1) of the Act requires notice to be served personally, by regular mail, by electronic transmission, by telephone transmission of a facsimile, or by some other method that allows proof of receipt. We do not accept Mr. Black’s contention that this section allows a verbal communication that can then be proven by sworn testimony, A verbal communication could be a synopsis of the decision or could even be a faulty or incorrect interpretation of the decision. A potential Appellant surely must have a written copy of the decision if he/she is to make an informed appeal to the Commission regarding the same.

Further section 77(1) of the Act makes it clear that the method of service must allow for “proof of receipt” of the notice. We cannot accept that “proof of service” is established by Staff Superintendent Dalzeil’s belief that he faxed a copy of the decision to Mr. Reiter, based on his normal practice.

[64]. We believe that these same principles would apply to the facts of this case.

[65]. Constable Brannagan has never received a written copy of the Hearing Officer’s decision of June 14, 2002. The formal section 68(7) “Notice of Decision” that Inspector McDonald sent him on January 27, 2003 did not include a written copy of this ruling.

[66]. This was despite the fact that the Hearing Officer provided such a written decision to Inspector MacDonald, the Chief and prosecutor in correspondence dated January 24, 2003.

[67]. As a result, it would seem that the only one not to receive written Notice of the ruling of June 14, 2002 was Constable Brannagan. Given this, we do not see how it can be said that he has failed to file his appeal on this point in a timely fashion.

[68]. For the above noted reasons we find that :

1. The Notice of Hearing served on Constable Brannagan on April 4, 2002 was within the six-month limitation period required by section 69(18) of the Act.

2. The Notice of Appeal faxed to the Commission on February 23, 2003 was within the 30-day limitation period required by section 70(1) of the Act.

[69]. Constable Brannagan’s conviction for neglect of duty is therefore confirmed.

DATED AT TORONTO THIS 25th DAY OF AUGUST, 2003.

Murray W. Chitra Sylvia Hudson

Chair, OCCPS Vice Chair, OCCPS