ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
PROVINCIAL CONSTABLE RODGER DINGMAN Appellant
ONTARIO PROVINCIAL POLICE AND STEPHEN JAINARINE Respondents
Presiding Members: Barbara Morland Wellard, Member Orlando Zamprogna, Member
Appearances: Andrew C. Lewis, Counsel for the Appellant Edward (Ted) Carlton, Counsel for the Respondent
Hearing Date: Thursday, July 31, 2003
This is an appeal against the finding of guilt with respect to one count of discreditable conduct made against Constable Rodger Dingman contrary to the Code of Conduct found at Ontario Regulation 123/98 ("Code") and in particular, section 2(1)(a)(xi). This decision was rendered on the 11th day of February 2003, following a hearing conducted by Superintendent M. P. B. Albers (the "Hearing Officer").
The particulars of the allegations were as follows:
On or about February 5th, 2001, you (Provincial Constable Rodger Dingman) were working on or near Highway 401 in the area of Park Road and had occasion to encounter Mr. S. Jainarine. As a result of meeting Mr. Jainarine, he was arrested by you for "uttering a threat". Your actions against Mr. Jainarine were improper and include, but are not limited to:
you continued the arrest of Mr. Jainarine after being told he meant he was only "going to make a formal complaint" and that he was not threatening you.
you knew or reasonably ought to have known that your conduct was inappropriate.
There is no appeal against the penalty imposed. That penalty was a reprimand.
Background:
The Appellant is a senior constable with the Ontario Provincial Police. He has 16 years service. Until this matter arose, he had never been disciplined, been the subject of a public complainant or charged with an offence under the Police Services Act R.S.O. 1990, c. P.15 as amended (the "Act").
The Respondent, Stephen Jainarine, is the owner of Durham Towing. Durham Towing is one of many different companies who are members of the Durham Region Towing Association ("D.R.T.A."), which provides towing services to the Whitby Detachment of the Ontario Provincial Police (the "OPP").
The Appellant was on duty on February 5th, 2001. He noticed a blue van broken down on the inside median on the eastbound lanes of Highway 401. The blue van was in a hazardous position. The Appellant made two separate radio calls to the OPP Aurora Communications Centre (the "Comm. Centre"). He requested the "first available" tow truck to attend at the scene and if the first available tow truck didn't call the Comm. Centre within a short time, then the Comm. Centre was to contact the D.R.T.A.
The Comm. Centre placed a telephone call directly to Stephen Jainarine requesting him to attend at the scene. The Appellant was not privy to this call. Mr. Jainarine advised the Comm. Centre that he would be there in approximately ten minutes.
The Appellant again called the Comm. Centre and asked for an arrival time for the tow truck. The Comm. Centre told the Appellant that he could expect a truck in 10 minutes, but did not specify which company was coming. The Appellant's first request for an available tow was made at approximately 4:40 p.m. His second call was made at 4:52 p.m.
The first tow truck to actually arrive at the scene was from Diamond Towing. The Diamond driver, T.D., had followed the Appellant's cruiser to the scene when he saw it going down the 401 with its lights on. When T.D. arrived on the scene, the Appellant directed him to hook up the blue van. The Appellant made no inquiries of the Diamond Towing driver to determine whether he was the driver dispatched by the Comm. Centre.
Mr. Jainarine arrived at the scene at approximately 5:00 p.m. This was either contemporaneously with the request by Constable Dingman to Diamond Towing to hook up to the van or within a short period of time after that request.
The towing policy of the Whitby OPP Detachment states:
Dispatch time is 20 minutes. If the Association has not arrived on scene by then and another truck is there, available, it may be utilized and the dispatch cancelled.
The policy goes further to state that the officer may use his or her discretion to depart from the policy and use whatever tow company is at the scene in an "emergent/hazardous/impaired/12 hour suspension" situation.
Mr. Jainarine was angry because he thought that he should have been given the tow. As a result there were two exchanges between him and the Appellant. The first took place on the westbound side of the median near the driver's door of the Appellant's cruiser. The second was on the eastbound side of the median near the driver's door of Mr. Jainarine's truck.
During the first interaction, Mr. Jainarine asked the Appellant whether or not the constable was advised that he was on his way for the tow. The Appellant stated that he was not. He simply stated that he told the Comm. Centre that he would take the first available truck that arrived. At no time during this conversation did the Appellant advise Mr. Jainarine that he had been told that a specific, but unnamed, company had been dispatched and that he had been given an arrival time of "within 10 minutes". At no time did the Appellant explain to Mr. Jainarine why he did not wait the 20 minutes dictated by the above noted policy.
The Appellant's evidence was that, during the first interaction between him and Mr. Jainarine, the Respondent stated:
... "you fucking asshole, you cocksucker, I'm fucking going to get you." At that point in time now turning and walking away, away from my cruiser. I am backing ... I put my car in reverse and started to back up, asking him if "are you threatening me?" He stated at that point, "you cocksucker, I am fucking going to get you." (evidence of the Appellant at the hearing).
Mr. Jainarine denied telling the Appellant that he was going to "get" him. However, he did not deny that he used profanity in his conversations with the Appellant.
At some point after the first exchange a Peel Police Service cruiser stopped and asked the Appellant if he needed assistance. The Appellant told them that he did not. About the same time, the Appellant contacted the Comm. Centre. He advised the dispatcher that he was having a problem with a tow truck. He said:
I have a problem with the tow truck ... I've got to talk to him, I don't know if he is actually threatening me or not but ahhh I'll investigate it ... just have another unit attend." (evidence of the Appellant at the hearing)
Mr. Jainarine returned to his truck, telephoned the Comm. Centre and requested that a sergeant attend the scene.
At this point, the second conversation took place. Some of the details pertaining to this exchange are in dispute. The Appellant described himself as "yelling" at Mr. Jainarine while the Respondent ignored him. The Appellant described his own voice as "very agitated". The Comm. Centre recorded Mr. Jainarine's telephone call with the Appellant's voice in the background. The Appellant can be heard yelling at Mr. Jainarine "are you threatening me ... are you threatening me?" During this conversation, the Respondent's demeanour was described as calm.
At one point in the tape there is a 13-second gap. Mr. Jainarine was put on hold by the Comm. Centre. The Appellant states that during this gap Mr. Jainarine threatened him.
Specifically, the Appellant testified that in this 13-second period a conversation took place in which:
(1) The Respondent stated that a sergeant was on his way;
(2) The Appellant asked the Respondent if he was threatening him;
(3) The Respondent stated that he was going to get him;
(4) The Appellant asked what he meant by that;
(5) The Respondent replied: "you know what I mean, I am fucking going to get you. I promise you I am fucking going to get you"; and
(6) The Appellant asked the Respondent a couple of times what he meant.
Mr. Jainarine denied saying that he was going to "get" the Appellant. He further testified that he did not speak to the Appellant and nothing happened during the 13-second hold, following which the Appellant arrested him.
The Appellant testified that, after the arrest, the following transpired:
I asked him, I said "do you understand yes or no?" I said "do you want to call a lawyer?" His answer to that was, "This is bullshit. This is bullshit. I didn't threaten you. I have nothing to say to you. I have nothing to say to you, Rodger. I am going to make a formal complaint. I know what you and Kelly are up to". At that point in time I asked him, "what are you talking about?". He replied, "you know what I am talking about." (Evidence of the Appellant at the hearing)
After his arrest, Mr. Jainarine asked the Appellant if arrangements could be made for a tow truck from his company to come pick up his vehicle. This request was denied. Instead, the Appellant had Constable Kelly Capper flag down a tow truck from a competing business and this vehicle towed Mr. Jainarine's truck.
The towing policy of the Whitby OPP Detachment states that if an individual requests a specific tow truck company, then that request should be acceded to except in dangerous or hazardous situations. The Appellant testified that he did not follow the Respondent's request because the position of the tow truck was too dangerous. Mr. Jainarine eventually had to pay $160.50 to retrieve his vehicle.
The Appellant took Mr. Jainarine back to the Detachment. Ultimately, he was charged with making a threat contrary to section 264.1 of the Criminal Code. The Appellant's sergeant processed Mr. Jainarine and arranged for his release. The terms of his release prevented him from going onto Highway 401 to supervise his business. Mr. Jainarine testified that he was held in custody for a couple of hours. He hired a lawyer to defend himself on the criminal charge which was subsequently withdrawn.
Mr. Jainarine lodged a public complaint against the Appellant by letter dated February 12, 2001 seven days after the events in question and prior to the withdrawal of the charge. This ultimately ended up in the disciplinary proceeding that is the subject of this appeal.
Hearing Officer's Decision:
In his Reasons for Decision, the Hearing Officer made findings of credibility adverse to both Mr. Jainarine and the Appellant. Ultimately he did find fault with the Appellant's decision making during the incident and found that he did not act professionally and, in fact, fell below the standard of conduct required of a police officer in a situation such as this.
He stated that Constable Dingman failed to act professionally and to communicate effectively with Mr. Jainarine. He found fault with Constable Dingman failing to advise Mr. Jainarine when asked that he had been told that a tow truck had been dispatched that was expected within 10 minutes. The answer provided by the Appellant was, in fact, accurate but it suffered from an error of omission by failing to explain the situation to Mr. Jainarine. In the Hearing Officer's opinion, this exacerbated a difficult situation.
Further, the Hearing Officer found that he could not accept the statement that the Appellant felt that he had been threatened by Mr. Jainarine. He concluded that if Constable Dingman truly felt threatened then he would have requested the services of the Peel officers when they stopped and asked whether or not he needed assistance. Further, Constable Dingman was aware that Mr. Jainarine had requested that a sergeant attend and: "he should have retained his composure until that arrival."
As well, the Hearing Officer specifically stated that he did not accept the evidence of the Appellant with respect to his allegation that Mr. Jainarine was yelling at and threatening him. The Hearing Officer stated that he made this finding based on the evidence of the Comm. Centre tape that was entered and heard at the hearing. He noted that on the tape, the Complainant was described as being "quite calm and composed".
The Hearing Officer found that Constable Dingman did not act objectively and impartially at all times as he was required to do. Instead, he concluded that Constable Dingman acted in an unprofessional manner in dealing with the situation and as a result found the Appellant guilty of discreditable conduct and imposed a reprimand.
Appellant's Position:
Mr. Lewis urged us to adopt a standard of review different from that which the Commission has applied to date as set out in the Williams and OPP (1995), 2 O.P.R. 1047 (O.C.C.P.S.). That decision requires this Commission to find that the Hearing Officer's decision was "void of evidentiary foundation" before we can intervene. The Appellant asked us to adopt a standard of review based on correctness, or at the very least, reasonableness simpliciter, as opposed to patent unreasonableness.
The Appellant submitted that the charges that were set out in the Notice of Hearing together with the Particulars should have been sole basis for the hearing. The charge itself stated that the discreditable conduct alleged was the fact that the arrest of the Respondent occurred after Mr. Jainarine told Constable Dingman that he was going to make a formal complaint. Instead, the Appellant submitted that the Hearing Officer found fault with the Appellant's failure to communicate adequately and ask the Peel officers to stay on the scene when they offered assistance.
Mr. Lewis argued that the Hearing Officer basically characterized the situation as a "communication problem". He suggested that given that the charge did not speak to such matters the Hearing Officer should not have considered it in his findings. The Appellant submitted that wording in the Notice of Hearing (i.e.: "your actions against Mr. Jainarine were improper and include, but are not limited to: ...") could not be extended to include the type of behaviour for which the Hearing Officer found the Appellant at fault. In essence, he argued that the officer was convicted of something with which he was not charged.
The Appellant submitted that the Hearing Officer made no specific finding as to the exact contents of the conversation between the Appellant and Mr. Jainarine and that he had an obligation to do so. The Appellant argued that the Hearing Officer could not find that Mr. Jainarine's actions were threatening if the Hearing Officer did not make a specific finding as to what Mr. Jainarine actually said.
Mr. Lewis further submitted that the Hearing Officer failed to make findings of credibility that were reasonable and supported by the evidence. On this point, he submitted that the Hearing Officer failed to consider the inconsistencies and apparent falsehoods in the Respondent's evidence and therefore erred in accepting Mr. Jainarine's version of the specific events and in particular the allegation that no words were said during the 13-second 'blank' period.
Other specific inconsistencies in Mr. Jainarine's evidence alleged by Mr. Lewis were as follows:
(1) Mr. Jainarine stated that Constable Capper used her cell phone to request a tow truck to move his vehicle. However, Constable Capper herself testified that she made no cell phone call and flagged down the tow truck;
(2) Mr. Jainarine testified that the Appellant drove his police cruiser over his foot. However, the Hearing Officer rejected this evidence, instead favouring the Appellant's denial; and
(3) The Hearing Officer also specifically found: "other perceptions that Jainarine had towards both Constables Dingman and Capper were also not proven."
The Appellant submitted that it is very serious when a witness lies or his evidence is found to be false. This significantly affects credibility and therefore such evidence should be accepted over that of a police constable. Specifically, the Appellant submitted that the Hearing Officer's preferring of Mr. Jainarine's evidence over that of the Appellant was without legal foundation, unreasonable and not supported by the evidence before him, "whatever the standard of review".
Mr. Lewis also submitted that the Hearing Officer made a critical error in confusing the terms Durham Towing and Durham Region Towing Association. Because of this misapprehension, the Appellant submitted that the Hearing Officer thought that the Appellant specifically knew, prior to Mr. Jainarine's arrival on the scene, that his company (not just any company) had received the call and was on the way. This has some relevance given allegations that there was a prior history of conflict between Mr. Jainarine and the Appellant.
It was submitted that this alleged misapprehension of the evidence by the Hearing Officer resulted in him making an incorrect finding adverse to the Appellant. Specifically, the Hearing Officer mistakenly thought the Appellant knew the Respondent and understood that he was on the way. As a result, the Hearing Officer mistakenly thought that the Appellant should have dealt differently with Mr. Jainarine and explained to him why he did not get the tow despite having been called.
In summary, Mr. Lewis submitted that the decision of the Hearing Officer was not supportable and should be overturned.
Respondent's Position:
Mr. Carleton on behalf of the OPP reminded us that our role is not to re-weigh the evidence but to continue to apply the test set out in the Williams case referred to earlier. He submitted that the decision of the Hearing Officer was not void of evidentiary foundation, was supportable and therefore should not be overturned.
With respect to the Notice of Hearing, Mr. Carleton argued that it did not lack particulars and gave the Appellant sufficient information regarding the scope of the allegations. Essentially, the allegation in the Notice of Hearing was that the actions of the Appellant against Mr. Jainarine were improper. Given this, the Hearing Officer was entitled to look at any aspect of the Appellant's conduct and assess whether it was likely to bring discredit to the OPP.
Specifically, Mr. Carleton submitted that the principal event in contention was the arrest of Mr. Jainarine. As such, it was incumbent upon the Hearing Officer to examine the course of conduct that lead to the arrest and to determine whether or not it was likely to bring discredit to the OPP. The Hearing Officer had every right to examine such conduct and conclude that Constable Dingman's actions lacked in partiality and objectivity.
Mr. Carleton submitted that the Notice of Hearing did not allege that an arrest was made without reasonable and probable grounds. Instead, it stated that Constable Dingman's actions in making and continuing the arrest were improper. Mr Carleton argued that misconduct could be made out if either: a) an arrest is made without reasonable and probable grounds, or b) an arrest is made that while technically lawful, is made in circumstances where the arrest is improper.
In viewing the evidence as a whole, the issue before the Hearing Officer was whether or not a reasonable person would view the conduct by the police officer in this situation to have been objective and impartial. Mr. Carleton submitted that a reasonable person would not. He reminded us that police officers have great powers in their ability to arrest individuals and that they cannot abuse these powers nor be seen to abuse these powers.
Mr. Carleton submitted that the Hearing Officer does not have to specifically deal with each and every aspect of the evidence and make specific findings of credibility. The Hearing Officer found it "difficult to believe or understand" that Mr. Jainarine said the words that were deemed to be a threat to Constable Dingman. He reviewed the evidence and found that he could not perceive the actions by the Respondent to have been threatening in any manner towards the Constable.
The Hearing Officer made specific findings that no threat was made. He does not need to go further and make specific findings as to whether or not any words were uttered during the 13-second pause. Mr. Carleton submitted that even if the arrest was technically lawful, then in these circumstances it was improper. He stated in his Factum: "executing a technically lawful arrest, resulting in a charge so tenuous it is withdrawn by the Crown well before trial, caused by personal dislike of the officer towards the subject of the arrest, is clearly conduct that can be described as discreditable".
Mr. Carleton submitted that the findings of the Hearing Officer are reasonable and supported by the evidence. He argued that the finding of fact that Mr. Jainarine did not threaten the police officer flowed reasonably from listening to the Comm. Centre tape. There is evidence therefore to support the finding of the Hearing Officer and as such, it should not be disturbed.
The Hearing Officer had every right to accept or reject parts of either the Appellant's or Mr. Jainarine's evidence. It is not necessary for the Hearing Officer to believe each and every statement made by any witness. The fact that the Hearing Officer disbelieved some of the testimony of Mr. Jainarine did not mean that all of his evidence should be disregarded. Mr. Carleton argued that where Mr. Jainarine's evidence was inconsistent, this was not with respect to critical matters before the Hearing Officer. Any inconsistencies were with respect to ancillary matters only.
Mr. Carleton stated that the Hearing Officer did not confuse the Durham Towing and Durham Region Towing Association.
Mr. Carleton pointed out that at the hearing, the police constable testified that he thought Mr. Jainarine was a "criminal". Mr. Jainarine was cross-examined about a dated criminal record that consisted of a non-custodial sentence in 1991. The Appellant also testified that he thought Mr. Jainarine "thinks he owns the highway. He is quite the complainer."
Mr. Carleton submitted that this assessment of Mr. Jainarine by the Appellant coloured Constable Dingman's actions on February 5, 2001. This was illustrated by the fact that:
The police constable declined to tell Mr. Jainarine that he knew the Comm. Centre had dispatched a tow truck or explain why he used Diamond Towing;
Constable Dingman chose to tell Mr. Jainarine that he was off the entire tow list and not simply the fatal list. He told Mr. Jainarine to call Sergeant Kerrigan about the tow list.
Constable Dingman did not believe a threat had been made during the first interaction. When Mr. Jainarine returned to his truck the police officer then approached him and used extremely provocative language.
Constable Dingman declined to allow Mr. Jainarine to use his own company to tow his truck after he had been arrested.
Mr. Carleton submitted that as a result of "bad blood" between the Appellant and Mr. Jainarine, that the Appellant failed to remain objective and impartial at all times as he was required to do. As a result, Constable Dingman's conduct was discreditable.
Decision:
We cannot accept the request by Mr. Lewis to adopt a different standard of review than this Commission has applied in the past. 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 annunciated in Williams and Ontario Provincial Police 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 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 could be no other determination than the conclusions of the adjudicator as to [whether] the credibility of witnesses be reasonably accepted.
The question then to be asked in this case is, are the conclusions of the adjudicator void of evidentiary foundation?
As was noted in the recent decision of this Commission in Geske and Hamilton Police Service (3 July, 2003, O.C.C.P.S.) appeal to this Commission are on the record. 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. If however 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.
If a decision hinges on the credibility of testimony then the trier of fact must set cogent reasons for believing or disbelieving the testimony. We believe that the Hearing Officer in this case did include cogent reasons in his decision for accepting the evidence of Mr. Jainarine over that of the Appellant. The Hearing Officer specifically stated that he could not accept the evidence of Constable Dingman with respect to him having been threatened. His position was buttressed by the fact that when Constable Dingman was offered assistance from the Peel officer who stopped at the scene, he declined that assistance. He indicated in his communication with the Comm. Centre that he did not know whether or not he was being threatened. The voice of the Mr. Jainarine during his conversation with the Comm. Centre even after the 13-second pause was calm. This cannot be said of the voice of Constable Dingman.
It was clear from reading the transcripts and the decision of the Hearing Officer that there was a history between Constable Dingman and Mr. Jainarine. Based on that history and all of the evidence that the Hearing Officer heard, it was open to him to find that the evidence of the Respondent was more credible than the evidence of the Appellant. In fact, this Commission would go so far as to say that we too would have found that based on the transcript of the evidence and the submissions of counsel and reading the Hearing Officer's decision, that the evidence of Mr. Jainarine was more reliable and more credible than the evidence of Constable Dingman.
We believe that Constable Dingman acted improperly when he arrested the Respondent. It is true that Mr. Jainarine used profanity and certainly was attempting to provoke the Appellant. Nonetheless, a police officer must deal with individuals who are upset on a daily basis. He or she must act in a professional manner. A police officer cannot and must not abuse the power of arrest as Constable Dingman did in this situation. There was a communication problem and Constable Dingman, being a professional, exacerbated the situation when he was less than forthright with the Respondent when asked as to whether or not Constable Dingman was aware that Mr. Jainarine had been sent by Comm. Centre to answer the call.
In our opinion, an objective individual would find that the behaviour of Constable Dingman in this situation would discredit the OPP. It was inappropriate and it was unprofessional.
We do not accept the submission of the Appellant that the Notice of Hearing was lacking in particularity. We accept the submissions of the Respondent in this regard. The Notice of Hearing talks about the continuation of the arrest but this flowed from pattern of conduct discussions that took place between the Appellant and the Respondent at the scene.
We cannot stress enough that police officers must be professional in dealings with the public in order to maintain the respect of citizens so that they can adequately conduct their role to safeguard society. Constable Dingman took advantage of the Respondent when he arrested him. He took advantage of Mr. Jainarine and treated him improperly when he failed to allow the Respondent's tow company to remove his vehicle and caused the Respondent to incur a further expense of approximately $160.00. This was not called for.
We find that there was clear and convincing evidence before the Hearing Officer justifying the finding of discreditable conduct against Constable Dingman and we would dismiss this appeal.
DATED THIS 16th DAY OF SEPTEMBER 2003.
Barbara Morland Wellard Member, OCCPS
Orlando Zamprogna Member, OCCPS