ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE MARTIN ROWE Appellant
SAULT STE. MARIE POLICE SERVICE Respondent
Presiding Members: Peter J. Doucet, Member Joe Mavrinac, Member
Appearances: Jeffrey D. Broadbent, Counsel for the Appellant Martin Pawelek, Counsel for the Respondent
Hearing Date: Wednesday, April 16, 2003
This is an appeal against conviction by Constable Martin Rowe with respect to two counts of insubordination pursuant to section 2(1)(b)(ii) of the Code of Conduct pursuant to O. Reg. 123/98, and pursuant to section 74(1)(a) of the Police Services Act, RSO 1990, c. P.15, as amended.
On June 26, 2002 the officer was convicted of the charge that on August 29, 2001 he did disobey, omit or neglect to carry out a lawful order by failing to attend court as directed, thereby committing the offence of insubordination. He was further convicted of the charge that he did on August 29, 2001 disobey, omit, or neglect to carry out a lawful order by violating a condition of secondary employment by allowing associated secondary employment activities to interfere with duties related to the Sault Ste. Marie Police Service thereby committing the offence of insubordination.
Constable Rowe was also charged with two other offences of insubordination, but was acquitted of those charges by Hearing Officer Sweeney on June 26, 2002.
There is no appeal against sentence, only conviction.
Background:
Constable Martin Rowe was hired by the Sault Ste. Marie Police Service (SSMPS) on January 10, 1987. Over that time, but for the charges forming the subject of this appeal, he was an exemplary officer. He received 60 commendations, he had no disciplinary history. He was lauded, even by prosecution witnesses, as being reliable, punctual, and professional (evidence of Crown Attorney Michael Kelly, transcript of Hearing, page 63).
Constable Rowe was the lead investigating officer in a criminal prosecution involving charges of sexual assault committed against two young people. The matter was a lengthy one. The trial took 9 or 10 days over the span of one year.
On June 13, 2001 Constable Rowe was present in court when this particular matter was being dealt with and was to continue. The court recessed in order for a date for continuance to be set. A date of August 29, 2001 was proposed. Constable Rowe, as is normal practice, advised Crown Attorney Kelly and defence counsel McCooeye that he would go to check his availability for that date. No explanation was given at the hearing, but for some reason court resumed in the absence of Constable Rowe, and the date of August 29, 2001 was set without consulting Constable Rowe. Upon returning to court, Constable Rowe found that court had adjourned for the day and August 29, 2001 was the next date. He immediately advised that he was unavailable. None of these facts are in dispute.
Here the dispute begins. Constable Rowe indicates that upon stating his unavailability, Mr. Kelly informed him that he was to be a defence witness and that "He (McCooeye) is the guy who needs you." (transcript, page 172). Constable Rowe went on to state that Mr. McCooeye informed him that he could go to his prior commitment, which was a convention for his private sector business of a M & M Food franchise, and "not to worry about it" (transcript, page 172).
Mr. Kelly recalls differently. At pages 49-50 of the transcript, he stated that he did not recall the specific words of the discussion. He did remember Constable Rowe stating he had a conflict with April 29, and that Mr. Kelly was not prepared to apply for an adjournment. Constable Rowe was not going to be called by the Crown on August 29, 2001, but was going to be called by the defence. He went on to state that there was the opportunity for the defence to apply for an adjournment, but that "Mr. McCooeye didn't seem to be doing that". Mr. Kelly confirms telling Constable Rowe that he did not need him, but that it was Mr. McCooeye who required him. Mr. Kelly also confirms that although he may have thought about calling Constable Rowe in reply, that at no time did he tell Constable Rowe this. This is found at page 50 and again on page 53 of the transcript.
The matter did not end there. On August 1, 2001 Constable Rowe was served by his Supervisor Sergeant Train with a Court Notice (Hearing Brief page 12). Constable Rowe completed an application for leave, which is found at page 9 of the Hearing Brief. He completed it on August 2, 2001 and submitted it to Sergeant Train pursuant to section 8.07 of the SSMPS Policy Order signed by Chief Davies. While this Policy Order was not part of the hearing brief or exhibits, a copy was filed with this tribunal on consent of counsel and reviewed. The application for leave was approved by Sergeant Train as supervisor, and Inspector Noble as inspector, as per policy 8.07 and returned to Constable Rowe.
Constable Rowe took leave on August 29, 2001 and did not attend court. It is agreed that, apart from having to continue on a date subsequent to August 29, 2001, there were no adverse consequences of his non-attendance.
Appellant's Position:
The Appellant argues that he was not insubordinate. He argues, in essence, that he complied with the policy concerning leave, that the policy was vague, that he received written approval, that he advised the Crown and defence of his conflict, and that he received permission not only from defence counsel to not attend on August 29, 2001, but more importantly received it from his employer. He argues, in essence, that he had an honest belief that he was entitled to be absent from court on August 29, 2001. He argues that the Hearing Officer erred in finding that his conduct, on these particular facts, was insubordinate and that the Hearing Officer erred in his interpretation of the evidence.
Respondent's Position:
The Respondent argues that the Hearing Officer fully considered and weighed the evidence, and properly came to the conclusion that Constable Rowe failed to complete the leave form (specifically the section certifying that he had not been served with a Court Notice requiring his attendance in court during the period of leave), that the officer could not take refuge in the fact that his superiors approved his leave notwithstanding, and that the Hearing Officer did not err in his review of the facts or the law. He reminds us of our limited powers of review as set forth repeatedly in the oft quoted case of Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) of which we are well aware. We must not second guess the adjudicator. We should only interfere upon the strongest ground. We must find that the conclusions of the adjudicator are void of evidentiary foundation or that his decision is unreasonable or unsupported by the evidence. Absent an overriding error, we should not interfere. He argues that Policy Order 8.07 is clear, that Rowe did not follow it, and is insubordinate accordingly on both counts.
Decision:
In the matter of Blowes-Aybar and Toronto Police Service, a decision of this Commission of February 28, 2003, it has been held that a lawful excuse is a defence to a charge of insubordination, and that an honest mistake provides an answer to the charge. We feel that those principles are worthy of consideration here, as set down by the Ontario Divisional Court in P.G. v. Ontario (Attorney General) [1996] O.J. No. 1298.
Insubordinate is defined by the Oxford Dictionary as "disobedient" and "rebellious".
Here an officer of exemplary conduct was faced with a conflict in his schedule through no fault of his own. He was asked by Crown and defence to check his availability for August 29, 2001 and then, inexplicably, a date was set before he could report back. One wonders why this was done without his input. In any event, Constable Rowe testified that he was clearly told that the Crown did not require him, that the defence did, and that he was led to believe by the defence that he would not be required. Mr. Kelly's evidence was less than clear on this point. Initially he did not even recall that this discussion occurred on June 13, 2001, believing it was on another date. In the transcript, he is vague on what the discussion actually was. Unfortunately, Mr. McCooeye never gave evidence.
If this were all that occurred, our view might be different; however, Constable Rowe, upon receiving a Court Notice on August 1, 2001 immediately applied for leave by filling out the required form. He submitted it to Sergeant Train, the same person who gave him the Court Notice the day before. He submitted it August 2, 2001 and Train approved it, as did Inspector Noble. Constable Rowe testified that he deliberately did not sign the Court Certification section as he could not - he had received a Court Notice. His testimony on this point is uncontroverted and unshaken on cross-examination. There was no evidence that he was disobedient, deliberate, or rebellious in this regard.
Sergeant Train testified at page 113 of the transcript that had he received this approved leave notice, as did Rowe, that he himself would have believed that he had leave.
Other witnesses for the employer confirmed that the leave policy was vague and no one seemed to clearly understand it.
We have had the benefit of reading Policy 8.07. It provides, in part:
8.07.5 Leave Forms
Any member who desires to take leave from duty must submit a "Leave Form" to their immediate supervisor at least seven (7) days prior to the commencement of the leave.
Upon receipt of a completed leave form the supervisor will verify the leave entitlement and sign the form indicating approval and forward the form to the inspector/manager of the division for authorization.
If the inspector/manager determines that a leave request cannot be accommodated, he/she shall advise the member in writing that the request has been denied . . . . . . . . . . . .
Approval of the leave request shall be given only after ensuring that minimum staffing levels are maintained and shall be subject to the exigencies of the service and the member's scheduled court appearances.
Nowhere in this policy does it require constable Rowe to sign the Court Certification section. The words "completed leave form" in the second paragraph of 8.07.5 cannot be so rigidly construed.
The Policy goes on to provide for approval and an onus on the supervisor and inspector/manager to only approve subject to the member's scheduled court appearances.
Sergeant Train, as the person giving Rowe the Court Notice on August 1, 2001 for August 29, 2001 surely was aware the next day that Rowe had court set for August 29, 2001. No mention was made of this to Rowe. What Rowe did receive was written approval of his leave.
It was reasonable for him to take it from all that occurred that his employer knew of the conflict for August 29, 2001, that the Crown did not need him, that defence counsel did not require him, and that his employer excused him from attending.
He held an honest belief in this regard, accordingly had a lawful excuse, officially induced by his employer in signing the leave approval, not once but twice, not to attend and was accordingly not insubordinate in not attending court on August 29, 2001.
The Hearing Officer erred in his application of the law and in our view his conclusions were unreasonable and unsupported by the evidence. Ironically, he found Rowe not guilty of two similar charges dealing with confusion over Constable Rowe's wife writing down the wrong date. In those cases he found that the honest mistake was a legal excuse and should have done so in the two matters before us as well.
The appeals against conviction are accordingly allowed on both counts.
DATED THIS 23rd DAY OF APRIL 2003.
Peter J. Doucet Member, OCCPS
Joe Mavrinac Member, OCCPS