OCCPS #04-10
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE ROB BOOMHOUR
Appellant
DURHAM REGIONAL POLICE SERVICE
Respondent
Presiding Members:
Sylvia Hudson, Vice-Chair
Peter J. Doucet, Member
Appearances:
William R. MacKenzie, Counsel for the Appellant
Staff Inspector Brian Fazackerley, Counsel for the Respondent
Hearing Date: Friday, September 10, 2004
This is an appeal by Constable Rob Boomhour of Durham Regional Police Service (the "Service") against the finding of Hearing Officer R.J. Chapman (the "Hearing Officer") of February 25, 2004 that Constable Boomhour did commit the disciplinary offence of insubordination contrary to section 2(1)(b)(ii) of O. Reg. 123/98 as amended (the "Code").
In summary, Constable Boomhour was charged with a criminal offence on June 5,
- As a result of that charge, he was suspended from duty with pay, and the notice
of suspension filed as Exhibit 4 was issued to him. It is paragraph 6 of that notice that is germane. It states:
- While suspended you shall not enter upon any property of this Police Service except to report in accordance with paragraph 3 or as otherwise ordered by the OIC.
There is no dispute about the lawfulness of the suspension, that the officer was aware of the suspension, or that he understood it.
The issue that arises is one of lawful excuse or honest and mistaken belief.
The Hearing Officer heard evidence to the effect that on September 22, 2003 Constable Boomhour attended at the second floor of 18 Division in plain clothes, went into an area normally off limits, to the general public, attended at the desk of the video disclosure clerk, with whom he was not acquainted, and made a disclosure request. He then left.
Constable Boomhour argues that he attended at the second floor of 18 Division on September 22, 2003 to retrieve videotape disclosure to which he was entitled in the defence of his criminal charges. At the hearing he filed evidence in the form of a letter from his lawyer William Fox indicating that Mr. Fox, unaware of the suspension and prohibition, requested that Constable Boomhour attend and obtain the videotape from the disclosure unit.
It is this attendance, which gave rise to the misconduct charge and the conviction before
Hearing Officer Chapman.
Constable Boomhour asks us to overturn the conviction, arguing that the Hearing Officer failed to adequately consider his defence of lawful excuse/honest and mistaken belief. It is his position, in essence, that he held an honest belief that he had the right to attend at the video disclosure unit on the second floor of 18 Division and alludes to the positions of the officers in the decisions of this Commission in Rowe and Sault Ste. Marie Police Service (23 April, 2003, O.C.C.P.S.) and Blowes-Aybar and Toronto Police Service (28 February, 2003, O.C.C.P.S.), in support of that defence.
The law is clear that we are not to interfere with the decision of the Hearing Officer absent a manifest and overriding error in principle. When dealing with the assessment of evidence and witnesses, our powers of review should be used sparingly, and only when there can be no other determination than the conclusions of the adjudicator
cannot reasonably be accepted. This has been concisely set forth in the decision of this Commission in Williams and OPP (1995), 2 O.P.R. 1047 (O.C.C.P.S.) at pages 1057 and 1058.
Despite the able argument of Mr. MacKenzie, we are not satisfied that the Hearing Officer has made such errors here. While he may not have specifically framed the wording of his decision around a detailed legal analysis of the defence of lawful excuse/honest and mistaken belief, he most certainly addressed those issues. In particular, we find reference to those issues at pages 6, 10, 12, 13, and 14 of the decision. He analyzed the evidence, directed his mind to the "reasonableness" of Constable Boomhour's allegation that he honestly believed he could attend at 18
Division to collect his disclosure without violating the terms of his suspension, and rejected that defence. We do not disagree.
Acting reasonably, one would have expected Constable Boomhour to call someone in authority and inquire if his attendance would contravene the requirements of his notice of suspension. One would expect he would advise his lawyer of the prohibition and ask for his input or suggestions. One would expect that he would send anyone else to receive the disclosure for him. To unilaterally decide that the very clear prohibition in
paragraph 6 of Exhibit 4 would not prohibit the attendance on September 22, 2003 was not reasonable.
We find that the Hearing Officer did not err to the extent that would invoke our powers to overturn that decision. We dismiss the appeal.
DATED THIS 16th DAY OF SEPTEMBER 2004.
Sylvia Hudson Peter J. Doucet
Vice-Chair, OCCPS Member, OCCPS