ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Constable Ronald Dinsdale
APPELLANT
-and-
Ontario Provincial Police
RESPONDENT
DECISION
Panel: Peter J. Doucet, Member Hyacinthe Miller, Member
Hearing Date: Friday, December 3, 2004
Hearing Location:
Appearances:
Joanne Mulcahy, Counsel for the Appellant
Edward (Ted) Carlton, Counsel for the Respondent
I. Introduction
- Constable Ronald Dinsdale appeals to this Commission from the penalty decision of Superintendent M. P. B. Elbers, (the “Hearing Officer”) of May 14, 2004. In that decision, Superintendent Elbers imposed a penalty of a “forfeiture of Twenty (20) days or One Hundred and Sixty Hours of Pay” (sic). It is from that determination that the appellant officer appeals to this Commission.
II. Background
Constable Dinsdale pled guilty on March 30, 2004 to the offence of neglect of duty contrary to section 2(1)(c)(i) of the Code of Conduct, O. Reg. 123/98 as amended (the “Code”).
The prosecution and defence submitted an agreed upon statement of facts to Superintendent Elbers and it was upon that statement of facts that submissions were made giving rise to the penalty decision under appeal.
The essence of the charge against Constable Dinsdale was that he failed to properly carry out the investigation of a head on motor vehicle collision between a car and a pickup truck that occurred on August 3, 2001 on Highway 17 near Garden River First Nation, east of Sault Ste. Marie, Ontario. The accident resulted in the deaths of five members of one family and the serious injury of two others. Two people in the other vehicle were also injured.
Constable Dinsdale was the second officer on the scene, which was also attended by several other officers, including his immediate supervisor and another supervisor who was off-duty at the time, the Acting Detachment Commander, Ontario Provincial Police (“OPP”) members from another detachment, Sault Ste. Marie Police Service officers, members of the OPP Regional RIDE Team, other emergency services personnel and a Technical Traffic Collision Investigator (“TTCI”).
OPP protocol at that time dictated that the first officer on scene was the lead investigative officer. In practice, this officer generally was assigned as lead investigator regardless of whether a more qualified officer could more adequately handle the investigation. The protocol gave no consideration to the assigned officer’s work background, specialized experience, investigative training or qualifications. It was this protocol that, in some part, contributed to the ultimate substandard result of the initial investigation and the subsequent flawed preparations for trial.
As it turned out, the first officer on the scene was scheduled for holidays, so the lead officer designation fell to Constable Dinsdale. Constable Dinsdale had been an OPP officer since 1976 with an unblemished record prior to this accident investigation. In fact, his record contained many commendations. The Appeal Book documentation indicates that he had received “successful” or positive ratings in performance evaluation reports up to May 2002.
From the outset at the scene of the accident, Constable Dinsdale declared his inexperience to his supervisor, indicating that he had not investigated a fatal accident for several years, and that he had been in a community service role for ten years immediately prior to 2001. His supervisor, Acting Sergeant Covey, assured Constable Dinsdale at the scene that he would receive the assistance he required. Unfortunately, that assistance was not forthcoming.
Constable Dinsdale conferred with respect to the appropriate charge, which was confirmed by the Regional Crown to be a Highway Traffic Act (“HTA”) charge of careless driving. There were, however, problems with the process and organization of the fatal collision investigation including, but not limited to: timely submission of a complete investigation package with all appropriate witness interviews and relevant documents; production of notes, will says and photographs; missing pages from a photocopy of the TTCI report and field notes; preparation of the Records Management System (“RMS”) Crown Brief; and, review of the Crown Brief by a supervisor, Court Officer or Court Case Manager prior to submission to the Crown. Not all of the deficiencies are necessarily attributable to the actions or omissions of Constable Dinsdale (or exclusively attributable to him).
It was agreed that Constable Dinsdale failed to interview all essential witnesses. He failed to provide some information as requested by the Crown Attorney within the time frames required. He failed to follow up on witness statements and submit statements and notes from police personnel in a timely fashion and failed to ensure documents were provided well before trial.
A stay of proceedings was granted at the trial of the careless driving charges of the person accused of causing the accident. This stay was ultimately overturned on appeal.
Acting Sergeant Covey was also charged with neglect of duty and pled guilty. The substance of that charge was that she did not review or evaluate the progress or status of the fatal accident investigation or the court brief with Constable Dinsdale, that she failed to provide proper victim assistance, and a general lack of proper guidance, supervision, and direction over an extended period of time.
The prosecutor and defence jointly submitted for a penalty of loss of 24 hours pay. However, on March 31, 2004 Superintendent Elbers imposed a forfeiture of four days or 32 hours pay on Acting Sergeant Covey.
III. Decision
It is well accepted that the Commission’s decision to interfere on appeal with a penalty is limited to those cases where there is a manifest error in principle or where relevant factors in assessing penalty have been ignored.
In this case, we find that the decision is rife with errors. They are enumerated as follows:
The penalty imposed was not in accordance with section 68(1) of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act”). The Hearing Officer is limited to choosing from the list of penalties enumerated in section 68(1). In choosing to impose a penalty of “forfeiture of Twenty (20) days or One Hundred and Sixty Hours of Pay” (sic), the Hearing Officer erred fundamentally.
Section 68(1)(e) allows for a penalty of “forfeit not more than three days or 24 hours pay, as the case may be”. In order to exceed that number of days or hours of pay, one must then turn to section 68(1)(f) but in that case, the greater number of days or hours must be days or hours “off”. In rendering his decision, Superintendent Elbers did not specify that the days or hours were “off”. In fact, he clearly specified that they were “hours of pay”. In so doing, he has exceeded his jurisdiction as specified in the Act.
That alone would be sufficient for us to interfere, but there are additional errors.
Superintendent Elbers makes reference to Constable Dinsdale failing to inform members of the accident victims’ families, but Constable Dinsdale faced no such allegations in his Notice of Hearing.
Superintendent Elbers refused to consider the Performance Evaluations at Exhibits 7 and 8. These were clearly relevant documents, prepared by the OPP. They are to some extent confusing and contradictory as to the positive or negative comments about Constable Dinsdale’s performance during this investigation. Nevertheless, they demonstrated how this officer has handled not only his extended career prior to the accident investigation in question, but also how he accepted his failure, and took steps to remedy it and continue with his duties thereafter.
At pages 2 and 3 of his decision Superintendent Elbers cited as examples of the neglect of duty a number of issues not the responsibility of Constable Dinsdale or not capable of being the subject of neglect. He criticized Constable Dinsdale for submitting the Crown Brief not in book form but as “a one and a half page synopsis printed from the Record Management System (“RMS”) with non-indexed attached documents”, although it was submitted to both his supervisor and the Crown, neither of whom initially took issue. Further, the Hearing Officer notes on page 2 of his decision that “Constable Dinsdale had never compiled a ‘book’ style brief at any time during his career and he was never told that one was required for this incident.”
Superintendent Elbers criticized Constable Dinsdale for submitting the Crown Brief directly to the Crown rather than to a supervisor or court officer, contrary to Police Orders - Court Case Management as well as Detachment Policy. It is worth noting that the brief was submitted to Acting Sergeant Covey and second, that Dinsdale was not made aware of the policy, despite his immediate disclosure to Acting Sergeant Covey on scene that he was not familiar with this type of accident investigation.
The Hearing Officer further criticized Dinsdale for the missing photocopied pages in the TTCI report submitted to the Crown, although the agreed upon statement of facts clearly indicates that it is not known how or where the error with the missing photocopies occurred. This is hardly evidence on a clear and convincing standard.
Superintendent Elbers misunderstood and misapplied many of the sentencing principles in his decision. He failed to note with sufficient weight the plea of guilty or the apology. He completely misunderstood the concept of specific deterrence. In fact, he used the term ‘specific deterrence’ and then went on to describe ‘general deterrence’.
As well, he misunderstood and misapplied the mitigating factors of handicap and other relevant personal circumstances. Rather than citing examples personal to Constable Dinsdale, he turned his attention to the impact statements of the relatives and friends of the deceased persons.
Further, he failed to consider at all the management approach of the OPP. Rather than taking into account the lack of support, assistance or supervision provided to Constable Dinsdale Superintendent Elbers made a general statement about the management program and disciplinary process of the OPP.
In his discussion of consistency of penalty, the Hearing Officer failed to consider the joint submission that had been made by both the prosecution and defence (24 hours) or the penalty that he had imposed on Acting Sergeant Covey (32 hours) for her involvement in these same events.
If consistency is the hallmark of fairness, it is difficult to reconcile a penalty of 20 days penalty for Constable Dinsdale and 4 days for Acting Sergeant Covey. This is particularly the case given Constable Dinsdale’s acknowledged inexperience, the unmet promises of assistance and the responsibility of a supervisor to direct, support and monitor subordinate staff.
That being said, it is evident that Constable Dinsdale failed to perform basic tasks that he knew, or ought to have known, had to be done. A reasonable person would expect that an officer with 25 years policing experience (at the time of the accident) would know enough to interview all witnesses, take proper statements, request feedback on his progress and follow up on directives from a Crown Attorney.
Clearly Constable Dinsdale’s conviction of neglect of duty requires a punishment. The punishment should not only befit him and his personal circumstances. It must take into account the systemic failure surrounding this accident investigation while keeping in context the consistency of his penalty with the joint submission and the penalty meted out to his supervisor at the time of the incident, Acting Sergeant Covey.
Constable Dinsdale pled guilty to misconduct. The seriousness of the fatal accident should not be allowed to overshadow the Hearing Officer's balanced review of the evidence presented, both positive and negative, taking into account the myriad of factors and the organizational/institutional context in which the neglect occurred.
For all of the reasons cited above, we find that the Hearing Officer manifestly erred in his decision, failed to consider and properly apply relevant sentencing considerations, and erred fundamentally in his penalty.
We therefore allow the appeal, and substitute a penalty of a forfeiture of six (6) days or forty-eight (48) hours off.
DATED THIS 30TH DAY OF DECEMBER 2004.
Peter J. Doucet Hyacinthe Miller
Member, OCCPS Member, OCCPS