ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Constable Wendy Bromfield
APPELLANT
-and-
Hamilton Police Service
RESPONDENT
DECISION
Panel: Michele J. Shephard, Member Orlando Zamprogna, Member
Hearing Date: Thursday, January 23, 2003
Hearing Location:
Appearances:
Brad Boyce, Agent for the Appellant
Brian Duxbury, Counsel for the Respondent
I. Introduction
- This is an appeal against the finding of guilt with respect to two counts of Neglect of Duty made against Constable Bromfield at a disciplinary hearing conducted before Deputy Chief Tom Marlor (the “Hearing Officer”) on March 28, 2002.
II. Background
- By Notice of Hearing dated June 11th, 2001, the Appellant was charged with two counts of misconduct. They were as follows:
… on or about the 16th of December 2000, while a sworn member of the then Hamilton-Wentworth Regional Police Service (now Hamilton Police Service), did fail to work in accordance with orders, without due permission or sufficient cause, by failing to comply with the requirements of Police Service Policy and Procedure 4.3.09 - Reporting, Investigative Responsibilities and Distribution of Reports and/or the requirements of Police Service Policy and Procedure 1.12 - Notebooks, thereby committing the offence against discipline of Neglect of Duty, as specified in section 2(1)(c)(ii) of the Schedule, Code of Conduct, Regulation 123/98, and thereby being guilty of misconduct contrary to Part V, section 74(1)(a) of the Police Services Act, R.S.O. 1990, as amended.
… on or about the 16th of December 2000, while a sworn member of the then Hamilton-Wentworth Regional Police Service (now Hamilton Police Service), did, without lawful excuse, neglect or omit promptly and diligently to perform your duties as a member of the Police Service when dealing with a complaint made by and/or providing service to Ms. B1. thereby committing the offence against discipline of Neglect of Duty, as specified in section 2(1)(c)(i) of the Schedule, Code of Conduct, Regulation 123/98, and thereby being guilty of misconduct contrary to Part V, section 74(1)(a) of the Police Services Act, R.S.O. 1990, as amended.
- The events giving rise to these charges according to the Statement of Particulars were:
- … on or about the 16th of December 2000, while on duty, you were assigned to Division 1 in the then Regional Municipality of Hamilton-Wentworth (now City of Hamilton). During your tour of duty, you were dispatched to respond to Central PSO to see a complainant (Ms. B.) in regard to an assault and/or stalking complaint. You:
(a) failed to complete and/or submit an Occurrence Report in relation to this complaint, as required by Police Service Policy and Procedure 4.3.09 - Reporting, Investigative Responsibilities and Distribution of Reports which provides, in part, that “unless otherwise directed by a Supervisor or Investigator-in-Charge, the initial Officer dispatched to or receiving the complaint shall submit the appropriate report. …”, and/or
(b) failed to make complete and accurate notes pertaining to your involvement in this matter as required by Police Service Policy and Procedure 1.12 - Notebooks, which provides, in part, as follows:
“Police officers
- When in field operation, shall maintain accurate and complete notes in accordance with the procedures taught at the Ontario Police College, recording in chronological order and in detail, all matters involving police activities coming to the Officers’ attention.”
Your failure to submit a report and/or make notes as to your contact with the complainant, Ms. B., and/or as to your involvement in this matter, constitutes a failure to comply with Police Orders as contained in Police Service Policy and Procedure 4.3.09 and/or Police Service Policy and Procedure 1.12, without due permission or sufficient cause.
- … on or about the 16th of December 2000, while on duty, you were working out of Division 1 in the City of Hamilton. You were dispatched to respond to Central PSO to see a complainant regarding an assault/stalking incident. At PSO, you met with Ms. B., who had attended the Station to file a report. You failed to perform your duties to:
take a report from Ms. B., and/or
provide quality service to Ms. B., and/or
make notes in regard to your contact with Ms. B. or in regard to your involvement in this matter.
The Hearing
Constable Bromfield appeared before the Hearing Officer on March 28, 2002 and pled not guilty to the two counts of Neglect of Duty.
Two witnesses testified. The Hearing Officer first heard from Staff Sergeant Bill Campbell, a 30-year member of the Hamilton Police Service. Staff Sergeant Campbell had been assigned to investigate why a report was taken from Ms. B. at Division 30, when she had attended Station 10 to make her complaint. His investigation concluded that Constable Bromfield had been directed to attend Station 10 to take the complaint.
The Hearing Officer received as an exhibit, Hamilton Police Service Policy and Procedure 4.3.09, and highlighted two issues. On Page 1, subparagraph 1, it stated: “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.” As well, page 1, subparagraph 7, read: “Officers shall notify their Supervisor when an investigation requires immediate action by another Division, Section, Branch or other agency.”
The Hearing Officer further received as an exhibit, Hamilton Police Service Policy and Procedure 1.12 that required officers to keep accurate notes of their duties throughout their shift.
The Hearing Officer noted Staff Sergeant Campbell was clear that Constable Bromfield acknowledged that she had not submitted a report in this matter and after examining her notebook, he could not find any entries involving this incident.
The Hearing Officer noted that during cross-examination of Staff Sergeant Campbell, it was revealed there had been another investigation into this incident involving a police dispatcher. The dispatcher had failed to comply with the policy and procedure and had received a profile entry for poor quality service.
The Hearing Officer also heard testimony from Inspector Buck, a 30-year member of the Service. He identified an e-mail sent to the Station 10 supervisors requiring them to ensure that when an individual comes into the station to report an incident, a report is taken. This e-mail had been sent to the supervisors on Monday, December 11, 2000, five days before the alleged misconduct. It was received as an exhibit.
The e-mail stated that, “Every once in awhile we hear a complaint about a person coming into one of our stations and being sent home to call communications and have an officer attend or sent to another station so that their matter can be attended to.”
Inspector Buck highlighted that such practice was unacceptable and emphasized the importance of the Hamilton Police Service providing quality service in every instance it has contact with the public.
Based on the evidence of these two witnesses and the exhibits tendered the Hearing Officer concluded that:
The evidence before me clearly indicates by written exhibits and policy, that Officers of the Hamilton Police Service are required to provide quality service in the first instance and deal appropriately with citizens’ complaints. They are further required to maintain accurate notes that reflect or can be used to refresh their memory on the incidents they were involved in during their tour of duty.
It is clear from S/Sgt. Campbell’s evidence that Officer Bromfield did not take the report in the first instance nor did she keep notes of her contact with the Complainant or her involvement in this matter.
I do not agree that the Police Service must provide a civilian complainant. In fact it is my opinion in this matter that the Service itself is a recognized complainant.
Appellant’s Position
Mr. Boyce, on behalf of the Appellant, submitted that the Hearing Officer erred in convicting the Appellant on both charges of Neglect of Duty for multiple reasons including there being no clear and convincing evidence.
He raised the following questions:
(c) Did the Hearing Officer err in convicting Constable Bromfield on both counts of Neglect of Duty by fundamentally misunderstanding the evidence?
(d) Did the Hearing Officer err in convicting Constable Bromfield on both counts of Neglect of Duty on the basis of clear and convincing evidence?
(e) Did the Hearing Officer err in convicting Constable Bromfield on both counts of Neglect of Duty on the basis of credible, reliable evidence?
(f) Did the Hearing Officer err in convicting Constable Bromfield on both counts of Neglect of Duty on the basis of sufficient and/or reliable evidence for a conviction?
Mr. Boyce argued that there was no evidence before the Hearing Officer that Constable Bromfield was ever assigned to investigate the call from Ms. B., ever involved in the call or ever had any discussion with the member of the public. Further, he suggested that there was no evidence before the Hearing Officer that a member of the public attended at Station 10 to make a complaint or that Constable Bromfield was directed to attend the station to take a complaint. In fact, he asserted that there was no evidence before the Hearing Officer that there even was a complaint in the first instance.
He noted that the evidence from Staff Sergeant Campbell was that Constable Bromfield acknowledged in her response to him (not admitted into evidence) that she did not submit a report with respect to this incident and that after reviewing her notebook, he found no entries. However, he pointed out that there was no evidence to suggest why the Service felt she was required to submit a report or to make any notes. Further, at no point in time did Staff Sergeant Campbell submit any evidence that Constable Bromfield had any involvement with this matter or that she had any contact with the complainant.
He noted that in the last paragraph of the Hearing Officer’s decision, he stated, “I do not agree that the Police Service must provide a civilian complainant. In fact it is my opinion in this matter that the Service itself is a recognized complainant.” On review of the transcript, there is no indication whatsoever who the complainant in this matter is. Mr. Boyce suggested that if the Police Service was in fact the complainant in this matter that this was not clear from either the evidence or transcript of the trial.
To support a charge of Neglect of Duty for failure to follow the Service’s policy and procedures for taking notes and filing reports it was Mr. Boyce’s view that the Chief must prove on clear and convincing evidence that the officer was working on the shift in question; that the officer was involved in the call in some capacity; that the officer was assigned to investigate the call; that the officer had some discussion with the alleged complainant; that there even was a complainant; and that there was even a call at the station. He stated that none of these issues were even addressed let alone proven on clear and convincing evidence.
Respondent’s Position
Mr. Duxbury stated that it is the Respondent’s submission that there was clear and convincing evidence demonstrating that Constable Bromfield failed to make notes of and report upon an incident, and that in the absence of any responding evidence from her, a prima facie case was established. He suggested that there was enough evidence provided to permit the Hearing Officer to conclude that, “It is clear from S/Sgt. Campbell’s evidence that Officer Bromfield did not take the report in the first instance nor did she keep notes of her contact with the Complainant or her involvement in this matter.”
He further stated that disciplinary proceedings under the Police Services Act are administrative in nature. A civil standard of proof applies. The reasons given by a lay tribunal do not need to be overly legalistic, nor should the appeal panel be overly critical of the judgments delivered by such lay tribunals, and that an appeal is not a rehearing of the matter. He argued that there should be some palpable and overriding error demonstrated in the reasons for judgment of the tribunal.
Mr. Duxbury went on to state that while there was not a lot of evidence in this case it was clearly a simple case, with simple evidence, and simple fact-finding. Constable Bromfield had the opportunity to explain her actions, but chose not to do so.
On these issues he cited Norris v. Loranger (1998), 2 P.L.R. 293 (Ont. Bd. Inq.), Spence v. Spencer (1986), 1986 CanLII 2945 (SK QB), 44 Sask. R. 135 and Hanna v. Laplante (1993), 1 P.L.R. 307 (Ont. Bd. Inq.).
Appellant’s Reply
- Mr. Boyce for the Appellant acknowledged that an incident took place and further that Constable Bromfield did not respond and that she had not made any notes. He suggested that the key component missing i.e. Constable Bromfield was not linked with the incident by evidence. He stated that the Police Services Act requires a case to be proven on clear and convincing evidence and this has not been done.
III. Decision
Before proceeding with this appeal, we want to commend the Hamilton Police Service for creating and implementing clear policies and procedures obligating officers to properly outline and record details during their tour of duty and to submit the appropriate reports. These policies go a long way to ensuring accountability and accuracy in incident reporting.
That being said, when dealing with disciplinary appeals relating to the enforcement of such policies, it is important to understand the role of the Commission. As stated in Bender and LeClair and Windsor Police Service (March 15, 2000, O.C.C.P.S.) at page 7 “It is a well established principle that an appellant authority or body like the Commission should only intervene if the Hearing Officer has made a manifest error, ignored conclusions or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it.”
In Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) the Commission at page 1058 stated:
Our role or function in such matters is not to second-guess the decision of the adjudicator. In certain limited cases it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the Adjudicator as to (whether) the credibility of witnesses cannot be reasonably accepted.
- In Carmichael and Ontario Provincial Police (May 21, 1998, O.C.C.P.S.) at page 6, the Commission stated:
The applicable burden of proof in this case is that of clear and convincing evidence. There must be weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to a reasonable conclusion that the officer is guilty of misconduct. We agree with the Appellant that the Commission can review whether there has been clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of the witnesses. In the normal course of events, it is the hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight or value.
In the transcript, it was evident that Prosecutor Inspector Michael Ardeline had intended to call a number of witnesses. In fact, he only called two witnesses, Staff Sergeant Campbell and Inspector Buck.
Staff Sergeant Campbell’s comments were limited to the fact that Constable Bromfield’s notebook contained no entries for this incident and that she did not submit a report for this incident. Staff Sergeant Campbell did not provide any evidence that there had been any contact or any involvement between Constable Bromfield and the complainant.
While alluding to the fact that the Service would have expected Constable Bromfield to explain the conduct, it goes without saying that an accused officer is not obliged to testify or give evidence at their own disciplinary hearing.
Inspector Buck’s comments emphasized the issue of quality service and the fact that it was important for the Hamilton Police Service to provide such service in every contact with members of the public. However, during cross-examination, he acknowledged that he had no direct knowledge of any of the circumstances in this particular complaint.
There are two questions to be asked in this case. Firstly, are the conclusions of the adjudicator based on clear and convincing evidence? Secondly, are the conclusions of the Hearing Officer void of evidentiary foundation?
To our mind the conviction cannot stand. We find that we must agree with Mr. Boyce when he said:
To support a charge of Neglect of Duty for failure to follow the Police Services Policy and Procedures for taking Notes and filing reports it is our view that the Chief must prove on Clear and Convincing evidence that the officer was working on the shift in question; that the officer was involved in the call in some capacity; that the officer was assigned to investigate the call; that the officer had some discussion with the alleged complainant; that there even was a complainant; that there was even a call at the station etc. None of these issues were even addressed let alone proved on Clear and Convincing Evidence.
We agree there was no direct evidence introduced at the hearing to link Constable Bromfield to this original incident and it is not sufficient for the Hearing Officer to merely state that there is clear and convincing evidence. It must exist and be established.
Accordingly, we allow the appeal and set aside both findings of guilt.
DATED AT TORONTO THIS 17th DAY OF MARCH 2003.
Michele J. Shephard Orlando Zamprogna
Member, OCCPS Member, OCCPS