Geske v. Hamilton Police Service, 2003 CanLII 87657

Citation: Geske v. Hamilton Police Service, 2003 ONCPC 15

Appellant

Respondent

Presiding Members:

Murray W. Chitra, Chair Michele J. Shephard, Member G. Douglas Smith, Member

Appearances:

Martin Doane, Counsel for the Appellant

Brian Duxbury, Counsel for the Respondent

Hearing Date: Wednesday, April 2, 2003

This is an appeal against the findings of guilt with respect to one count of neglect of duty and two counts of deceit made against Constable Geske contrary to the Code of Conduct found at Ontario Regulation 123/98 (the “Code”) following a hearing conducted by Deputy Chief Tom Marlor (the “Hearing Officer”) over several days between April 9, 2001 and December 17, 2001.

Further, it is an appeal against the penalty imposed by the Hearing Officer on

January 24, 2002. The penalty was that Constable Geske be dismissed.

Background:

Constable Geske is 34 years old. He attended university for four years and obtained a Bachelor of Arts degree. After university, he enrolled at Mohawk College and obtained a diploma. Following graduation he worked with the Metropolitan Toronto Police Service for one year as a court officer. He joined the Hamilton Police Service (the “Service”) as a police officer on September 2, 1997.

Constable Geske’s first years with the Service were relatively uneventful. He served without incident under the supervision of Staff Sergeant Watts and

Sergeants Smethurst, Remigis and Barker. He received good performance appraisals. In 1999, a minor sick time issue was noted. Constable Geske took ten days off that year, because of problems associated with the birth of his son. In early January 2000, Staff Sergeant Simchison was assigned to Constable Geske’s unit. Constable Geske’s workplace performance became an issue.

Disciplinary charges arose. On April 6, 2000, Constable Geske appeared before Deputy Chief Marlor and pled guilty to one count of discreditable conduct and neglect of duty, and agreed to a reduction in rank from second to fourth class constable for a period of one year. At the end of that period he was to be eligible for normal promotion through the ranks. Constable Geske also entered into a form of “last chance agreement” whereby he undertook to resign, or failing that, be deemed to resign, if he was convicted of any major disciplinary charges within one year of the date of the agreement.

The year did not pass without incident. On September 26th, 2000, Constable Geske was charged with a further seven counts of misconduct. During the course of the subsequent disciplinary hearing one count was withdrawn (#4), two counts were dismissed as being too closely linked to others (#2 and #7) and a finding of “not guilty” was registered on another (#3). Convictions were entered

on three counts. These are the subjects of this appeal.

The events giving rise to these charges according to the Statement of Particulars were:

… on or about the 4th of May 2000, you were on duty working out of Division 1, in the Regional Municipality of Hamilton- Wentworth. During your tour of duty (0700-1900 hours), you did:

malinger on calls for service, and/or
fail to promptly clear from calls for service when you had completed legitimate participation in the call, including any report writing responsibilities, and/or
take an excessive period of time to complete reports which should reasonably have been completed in substantially less time by an officer of your experience, and/or
claim to be providing assistance on a call, or to be completing reports in relation to a call, when this was not the case, and/or
fail to promptly make yourself available for calls for service.

… on or about the 18th of May, 2000, you were interviewed by Staff Sergeant Mark Simchison, your Patrol Staff Sergeant at Division 1, in the Regional Municipality of Hamilton-

Wentworth. Staff Sergeant Simchison made inquiries as to your on-duty activities on the 4th of May 2000. You advised Staff Sergeant Simchison that you assisted Constable L. Jongdong with the preparation of reports/Crown Brief in regard to a child apprehension/Fail to Appear during the morning and afternoon of your shift. Subsequent investigation revealed that your involvement in the preparation of the reports/Crown Brief was minimal, and you did not, in fact, assist Constable Jongdong in completing related reports in the afternoon of

your shift, as you had informed Staff Sergeant Simchison. Furthermore, the amount of time which you informed Staff Sergeant Simchison you took to complete any and all reports actually completed by you during your tour of duty could not be justified by the nature of the reports submitted.

The information which you provided to Staff Sergeant

Simchison was thus false, misleading and/or inaccurate.

… on or about the 3rd of September 2000, you were interviewed by Staff Sergeant Mark Simchison, your Staff Sergeant at Division 1, in the Regional Municipality of Hamilton-Wentworth. Staff Sergeant Simchison asked that you produce computer disks containing police records/reports for the purpose of reviewing and/or verifying information you had provided. On or about the 6th of September you produced to Staff Sergeant Simchison a number of computer

disks for this purpose. Subsequent investigation revealed that two or more of the computer disks had been damaged or mutilated or destroyed. As a result of the damage, the records on the disks were destroyed and/or unreadable and/or erased.

The Hearing:

The hearing into these allegations took place over a number of days with evidence being given by several witnesses for both the Prosecution and the Defence. Numerous exhibits were filed.

In a written decision dated December 21, 2001 the Hearing Officer provided reasons. For the purposes of this appeal the key aspects were as follows:

Count #1:

That being Officer Geske, on or about May 4, 2000, while working out of Division One (1) in the Regional Municipality of Hamilton- Wentworth, did malinger on calls for service. In this count, I find the critical time period that Officer Geske has had difficulty explaining is

that from approximately 1500 hours to 1635 hours. During submissions, Mr. Boyce provided a good deal of case law regarding malingering or failing to properly and promptly clear from calls etc.

It was his opinion that an Officer cannot malinger without being able to specifically be shown something tangible that he did or didn’t do. It is my understanding that to malinger on a call means nothing

more than to excessively spend time on that call, without justification or cause, thereby allowing the loss of his service. In cases of this nature the officer should clear promptly once the necessary investigation and reports are complete and move on to either proactive patrol, community-based policing or providing further assistance to members of the public.

I do not believe PC Geske’s explanation of what he did on the afternoon of May 4, 2000. On clear and convincing evidence, Officer Geske has not shown justification for being unavailable to perform police duties during the hours of 1500 -1630 on May 4,

2000, and therefore I find him guilty of count #1 … Count #5:

That being on or about May 18, 2000, he did willfully and neglectfully make false or misleading or inaccurate statements to S/Sgt. Mark Simchison in relation to his duty activities on May 4, thereby committing the offence of deceit.

It is my belief that Officer Geske took a minor offence, that being spending too much time on a particular call, and rather than admit to this fact when questioned by his S/Sgt., he chose to lie in the hope that he could explain away his misconduct. On clear and convincing evidence, I find Officer Geske guilty of deceit.

Count #6:

Between May 18 and September 6, 2000, while a sworn member of the Hamilton-Wentworth Regional Police Service, he did, without lawful excuse, destroy or mutilate a record or alter or erase and entry therein, namely the computer disk and or the content thereof, committing the offence of deceit.

As I stated in my explanation of why I disbelieve P.C. Geske, I have received clear and convincing evidence that Constable Geske purposely destroyed and or produced false information to deceive his S/Sgt. with regard to his police activities. Therefore, I find

Officer Geske guilty of Count #6 ...

Appellant's Position:

Counsel for the Appellant, Martin Doane, challenged the decision of the Hearing Officer with respect to all three convictions. Specifically, he took the position that the Prosecution failed to meet the onus of proof for each count on which a conviction was registered.

With respect to Count #1 (neglect of duty), Mr. Doane argued that the Prosecution failed to demonstrate on clear and convincing evidence that Constable Geske neglected or omitted promptly and diligently to perform a duty as a member of the police force. Specifically, he failed to demonstrate either that (a) there was some element of willfulness in Constable Geske's neglect; or (b) that "there was a degree of neglect which would make the matter cross the line from a mere performance consideration to a matter of misconduct."

Mr. Doane noted that the Hearing Officer held that he did not believe Constable Geske's explanation of what he was doing during the 80-minute period in question. However, the Hearing Officer did not clearly explain why he concluded that Constable Geske was not performing police duties during that time, other than citing a general disbelief of the officer’s testimony.

Mr. Doane then went on to point out what he described as a contradiction between the Hearing Officer's findings on this allegation and that with respect to Count #3 (failure to make complete and accurate notes). The Hearing Officer held:

A review of exhibit #7, Officer Geske's notes for May 4, 2000, does not show a great deal of specifics in regard to his activities from

1500 - 1635 hours. However, it does show some activity during that time frame. A further evaluation and review of exhibits shows that exhibit #6 (Officer Geske's computer-aided dispatch log for May 4, 2000) shows that he moved from various locations to other locations. Whether he actually moved is unknown. However, it does support his testimony that he has gone from one location to another, and I am hesitant to convict him as I feel there is not clear and convincing evidence when I take both his notes and the computer-aided dispatch log into account. Therefore find him not guilty of count #3.

Mr. Doane argued that it was illogical that this "doubt" should lead to an acquittal on a charge relating to not keeping accurate notes in the face of a conviction for neglect of duty given that they related to the same thing (i.e. that Constable Geske was doing some work during the disputed 80-minute period).

Mr. Doane asserted that the Hearing Officer's finding under Count #3 should vitiate his finding under Count #1. He argued that this underscored the fact that

the Prosecution failed to meet its onus to show clear and convincing evidence that Constable Geske was not working and was unavailable to work on police matters during the suspect 80-minute period. In addition, he suggested that these contradictory determinations significantly detract from the Hearing Officer's general conclusion that Constable Geske was not credible.

With respect to the two convictions for deceit, Mr. Doane argued that the Prosecution had failed to prove an intention to mislead. Further, the Prosecution failed to establish that there was no possibility of consistency between the statements upon which the charges were founded in addition to the other ingredients of proof.

Mr. Doane suggested that the Hearing Officer's analysis was flawed by his failure to consider and give any weight to the substantial independent evidence that corroborated Constable Geske's testimony and belied Staff Sergeant

Simchison's evidence.

In particular, with respect to Count #6 Mr. Doane asserted that the Prosecution failed to establish on the clearest of evidence an intention to destroy evidence. Mr. Doane noted that Constable Geske provided an explanation as to why his disk was damaged. The disks in question are used by officers of the Service to rough out notes, prepare statements and other miscellaneous work, and they are continuously saved until worn out. At that point they are either discarded or destroyed.

Mr. Doane pointed out that Constable Geske's uncontradicted evidence was that there was a major problem with the Service's Maclntosh computers and quite often the disks simply did not work. Other witnesses at the hearing confirmed this. Constable Geske and other officers on the Service were specifically trained to destroy or mutilate the computer disk when this occurred to prevent information that could be retrieved from the disk from falling into the wrong hands.

In other words, he argued, it was the Service's practice to make these computer disks unreadable in certain circumstances. Constable Geske's training officer backed this up in testimony at the hearing. Further, it was also demonstrated in evidence that there was no obligation or expectation for police officers to keep these disks for any reason; they are equivalent to notepads used for jotting down information.

Mr. Doane also made several submissions regarding the role of the Commission on discipline appeals and the standard of review to be applied. However, he submitted that this appeal should be allowed no matter what standard of review is applied: correctness, reasonableness simpliciter, or patently unreasonable.

Respondent's Position:

Counsel for the Respondent, Brian Duxbury, requested that the appeal against conviction be denied.

He noted that the central and fundamental issue in this appeal is whether there is clear and convincing evidence of neglect or deceit. He stated that the events giving rise to this process were simple. A noticeable gap in Constable Geske's accounts of his activities on May 4, 2000, suggestive of malingering, gave rise to an inquiry by his supervisor.

Mr. Duxbury asserted that Constable Geske's responses were vague, evasive and inconclusive; they necessarily required and lead to further inquiry. Further investigation generated concern culminating in an exchange of questions and answers regarding the officer's alleged recording of his activities for the period in question on a computer disk. Constable Geske subsequently claimed that this disk had been destroyed.

At the time of these events, Constable Geske had only been recently disciplined for lack of judgment and poor performance. He had just pled guilty to two disciplinary charges, including neglect of duty. He was working under a last chance agreement; effectively, Constable Geske was on probation. He was under close supervision, knew he was under close supervision and he necessarily had to be under close supervision by his immediate superiors

Inspector Buck and Staff Sergeant Simchison. Within this context, it was obvious why Constable Geske's activities during the months of April and May 2000 warranted close attention and scrutiny.

When Staff Sergeant Simchison interviewed Constable Geske on May 18, 2000 he made detailed notes of his conversation. This interview took place within two weeks of May 4, 2000. The expectation would be that Constable Geske's memory would be the most accurate and complete. Yet his answers, consistent with the notes, sustained the impression that there was an unexplained large gap in the afternoon events.

Mr. Duxbury acknowledged that perhaps Constable Geske was put on the spot. Perhaps Constable Geske did not understand the significance of the questions. Perhaps Constable Geske felt uncomfortable in the manner in which the questions were being put to him. Regardless, given his later explanation of events for the afternoon, it is remarkable that Constable Geske provided Staff Sergeant Simchison with so few details of his activities for the afternoon in question. The answers, or the lack thereof, certainly required Staff Sergeant Simchison to go down a path of further investigation.

Mr. Duxbury argued that simply put, Constable Geske was not actively pursuing his obligations as a police officer during the afternoon of May 4, 2000. His duty,

as correctly determined by the Hearing Officer, was to clear promptly once the necessary investigation reports were complete and move on to either proactive patrol, community-based policing or provide further assistance to members of the public. He did not do that in a diligent manner.

Mr. Duxbury asserted that with these findings in hand, a prima facie case was made out against Constable Geske and the onus shifted to him to provide some reasonable justification for his lack of any measurable performance on the afternoon of May 4, 2000. Constable Geske was unable to demonstrate in his evidence, on any clear and convincing basis, what he did on the afternoon of May 4, 2000.

With respect to the Hearing Officer's dismissal of Count #3 (failure to make complete and accurate notes) Mr. Duxbury argued that such a conclusion was consistent with the overall results. The ultimate story which finally emerged from Constable Geske's answers and from his evidence was not that he did not make notes. Rather, his notes were reflective and verified the fact that Constable Geske simply did not do much on the afternoon of May 4, 2000 as an active police officer.

With respect to the Appellant's analysis of the standard of review applicable to appeals before the Commission, it was submitted that whether the Commission used a standard of review based on correctness, reasonableness, or patent unreasonableness, the findings and conclusions of the Hearing Officer could be confirmed. Further, it was submitted that the Commission could reach the same conclusions, independent of the Hearing Officer's findings, based upon the extensive evidence submitted during the course of the Hearing.

In support of this position, Mr. Duxbury referred us to 14 cases.

Decision:

This Commission has consistently adopted a uniform and consistent standard with respect to reviewing a Hearing Officer’s decision on appeal. This standard was clearly enunciated in Williams and Ontario Provincial Police (1995), 2

O.P.R.1047 (O.C.C.P.S) in which it was stated on page 1058:

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 for 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 can be reasonably accepted.

The question then to be asked in this case is, are the conclusions of the adjudicator void of evidentiary foundation?

We have carefully read and listened to the submissions made on behalf of the Appellant by Mr. Doane, that this Commission should reconsider our appellate function, and substitute a different standard of review from that consistently applied based on the standard enunciated in the Williams decision. We do not accept these submissions.

Appeals to this Commission are on the record and for this reason it would make little sense for this Commission to make decisions of credibility not having the opportunity to see or hear the witnesses. This clearly in our opinion is the role of the trier of fact. In the event, however, that the trier of fact misapprehends the evidence, reaches a decision that is void of evidentiary fact or makes a clear error at law then this Commission has the power to vary, confirm, revoke or

substitute our own decision. This power is enunciated in section 70(6) of the Act.

We do agree with the submissions of the Appellant that if a decision hinges on the credibility of testimony then the trier of fact must set out cogent reasons for believing or disbelieving testimony. Nevertheless, we are of the opinion that the convictions against the Appellant Constable Richard Geske cannot stand no matter what standard of review is applied for the following reasons.

We are not satisfied that the evidence shows that the Appellant was guilty of neglect of duty for malingering on calls. We have carefully read the transcripts and in our opinion there is no evidence upon which the Hearing Officer could have reached the decision that the Appellant was guilty of malingering. In fact, the Hearing Officer clearly accepted the evidence from Constable Geske's notebooks and from his computer-aided dispatch logs that he was moving from various locations to other locations during the 80-minute period in dispute. This, in our opinion, is one of the general functions of a police officer, namely to patrol.

We completely agree with the submissions on behalf of the Appellant that there is a contradiction in the Hearing Officer's findings with respect to Count #1 (neglect of duty for malingering on calls) and Count #3 (failure to make accurate and complete notes). Having reached the conclusion that Constable Geske's notes and computer aided dispatch are accurate and do show that he is performing some functions surely vitiate the charge that he neglected a duty.

Further, there is no evidence that Constable Geske was to perform a specific function or role on the day and time in question and that he failed to do so in a prompt and diligent manner. This Commission in Soley and Ontario Provincial Police (1996), 3 O.P.R. 1098 (O.C.C.P.S.) at 1100 held that to support a conviction for neglect of duty an employer must establish that the police officer was required to perform a duty and that he failed to perform the duty because of neglect or did not perform the duty in a prompt and diligent manner. There is no such evidence in this case.

This then leaves the two convictions for deceit. Section 2(1)(d)(i) and (ii) of the

Code defines ‘deceit’ as follows:

(i) wilfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties, or

(ii) without lawful excuse, destroys or mutilates a record or alters or erases an entry thereon.

This Commission articulated in Perry and York Regional Police (1972), 1 O.P.R.

89 (O.P.C.) at page 92 that:

… to prove a charge of deceit requires the clearest of evidence to establish that there is no possibility of consistency between the statements upon which the charge is founded, in addition to the other ingredients of proof.

It is therefore clear that in order to make a case under this section that the prosecution must prove that a statement was made with the clear intent to mislead or deceive. It is not sufficient to simply prove that the statement was inaccurate.

Does the evidence in the case before us meet this test? In our opinion it does not. This charge is based on statements made by the Appellant to Staff Sergeant Simchison on May 18, 2003. The evidence shows that Constable Geske was called in late following his shift. He indicated in his testimony that he answered questions asked by Staff Sergeant Simchison about his activities in a

relaxed manner thinking it was only an informal performance meeting. Constable

Geske's assumptions are supported by Staff Sergeant Simchison's own testimony in which he admitted under cross-examination, in direct contradiction to his testimony in chief, that the meeting was disciplinary in nature.

Further, the evidence supports the fact that Constable Geske did offer credible explanations to Staff Sergeant Simchison for the minor discrepancies between his recollection during the first meeting on May 18, 2002 and later recollections. It is clear from the cases that in order to establish a charge of deceit that the prosecution must prove that an officer wilfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties. Therefore, an inaccurate statement by itself in the absence of proof of wilfulness or intent will not support a conviction of deceit. Furthermore the evidence must be weighty, cogent and reliable. In our opinion there is no evidence in this case that meets any of these tests.

Our analysis of the evidence with respect to the second charge under section

2(d)(iii) (destroying the computer disk) must be based on the same principals as set out on the charge of deceit under section 2(d)(ii) articulated above. The evidence, as accepted by the Hearing Officer, was that the computer disks in

question were disks that the police officers used to rough out notes and do other miscellaneous work. The evidence further indicated that there was no policy or other obligation or, for that matter, any expectation for police officers to keep these disks for any reason. There was no evidence that there was any law or policy that the disks must be retained; quite to the contrary the evidence supported the fact that officers were expected to destroy or make the disks unreadable. It is therefore illogical to find that this officer did not have a lawful excuse for destroying the disks as in doing so he was following an established practice.

For these reasons we allow the appeal and all three convictions against

Constable Richard Geske are overturned.

DATED AT TORONTO, THIS 3rd DAY OF JULY 2003.

Murray W. Chitra

Michele J. Shephard

G. Douglas Smith

Chair, OCCPS

Member, OCCPS