OCCPS #05-05
ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Wayne Penner APPELLANT
-and-
Constable Nathan Parker and Constable Paul Koscinski and Niagara Regional Police Service RESPONDENTS
DECISION - PENALTY
Panel: Murray W. Chitra, Chair Tammy Landau, Member
Written Submissions: June 6, 2005
Appearances: Wayne Penner, Appellant Gary R. Clewley, Counsel for Constables Nathan Parker and Paul Koscinski Woodward B. McKaig, Counsel for Niagara Regional Police Service
I. Introduction
Mr. Penner brought an appeal under sections 70(1) and (3) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) from a decision of retired Superintendent Robert J. Fitches (the “Hearing Officer”) dated June 28, 2004.
The decision was that Constables Nathan Parker and Paul Koscinski were not guilty of acting contrary to sections 2(1)(g)(i) and (ii) of the Code of Conduct found at O. Reg. 123/98 (the “Code”).
Section 2(1)(g)(i) deems it to be misconduct when an officer “without good and sufficient cause makes an unlawful or unnecessary arrest”. Section 2(1)(g)(ii) states that an officer commits misconduct if he or she “uses any unnecessary force against a prisoner or other person contacted in the execution of duty …”
Mr. Penner’s appeal was argued on February 21, 2005. In a written decision dated April 22, 2005 we revoked the findings of the Hearing Officer and substituted determinations of guilt against both Constable Nathan Parker and Constable Paul Koscinski.
The purpose of this decision is to assess appropriate penalty.
II. Background
The aspects of Constable Parker and Koscinski’s conduct that are of concern are set out in detail in our written ruling of April 22, 2005. For the purposes of this decision a number of details are worth repeating.
Marlene Penner was charged by Constable Nathan Parker of the Niagara Regional Police Service on September 9, 2002 with the offence of driving a motor vehicle without displaying two plates contrary to section 7(1)(b) of the Highway Traffic Act R.S.O. 1990, c. H.8 as amended.
The trial of this matter took place before His Worship Justice of the Peace G. Tisi on January 28, 2003 in St. Catharines, Ontario. Marlene Penner represented herself. Her husband, Wayne Penner, was a spectator in the courtroom. Constable Paul Koscinski was also in the courtroom on an unrelated matter and sitting behind Mr. Penner in the last row at the back of the room.
While Constable Parker testified Wayne Penner made a number of comments ‘under his breath’. Constable Parker completed his testimony and returned to the body of the court to sit beside Constable Koscinski. Constable Parker spoke to Wayne Penner. His remarks were to the effect that Mr. Penner could or would be arrested for his conduct.
This comment offended Mr. Penner and matters quickly escalated. Mr. Penner appealed directly to the Justice of the Peace. Constable Parker laid hands on Wayne Penner. Mr. Penner pulled back. Constable Koscinski joined the fray. At that point, the courtroom essentially dissolved in pandemonium.
The Justice fled. The two officers dragged Wayne Penner from the courtroom and wrestled him to the ground in the hallway. His glasses got lost in the struggle. After the application of empty hand and knee strikes by both officers, Wayne Penner’s hands were cuffed behind his back. He was charged with causing a disturbance, breach of probation and resisting arrest.
It was our conclusion that this arrest was both unlawful and unnecessary and that the corresponding use of force was unjustified.
III. Decision
We requested written submissions with respect to penalty from the parties within forty-five days of our decision. These submissions were received.
Mr. Clewley, on behalf of Constables Parker and Koscinski suggested that we impose a penalty of reprimand on both officers. Mr. McKaig, on behalf of the Service, recommended a penalty of forfeiture of thirty-two hours off for Constable Parker and sixteen hours off for Constable Koscinski. Mr. Penner submitted that both officers should be penalized equally. He argued for an unpaid suspension (length to be determined by us), loss of performance pay or its monetary equivalent and a public apology.
The factors to be taken into account when imposing penalty are well established. There are three key elements. They include the nature and seriousness of the misconduct in question, the ability to reform or rehabilitate the officer and the damage to the reputation of the police service.
Other factors can be relevant, either mitigating or aggravating the particular conduct in question. These include:
employment history and experience;
recognition of the seriousness of the transgression;
provocation;
handicap;
management approach; and
specific and general deterrence.
As well, when imposing penalty it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure both fairness and consistency.
How do these considerations apply to this case?
The facts giving rise to these disciplinary proceedings are certainly unusual.
If Constables Parker and Koscinski had arrested Mr. Penner outside of the courtroom we would not be here. If Mr. Penner had not been ‘chirping’ in the courtroom or followed the directions of court officials we would not be here.
That being said, Constables Parker and Koscinski committed misconduct. They arrested Mr. Penner in a public courtroom in the presence of a presiding Justice of the Peace. The Justice had given no such direction and was attempting to respond to Mr. Penner.
We acknowledge that the law with respect to the exercise of control in a courtroom lacks clarity. Notwithstanding this, Constable Parker made an unnecessary comment to Mr. Penner during court proceedings that caused matters to escalate. His decision to affect an arrest caused the trial to dissolve in pandemonium and the Justice to flee the courtroom. The Justice subsequently felt compelled to disqualify himself.
The techniques used to restrain Mr. Penner appear to have been in accordance with proper police procedures. However, Mr. Penner resisted and as a result suffered injuries that included a black eye, sore ribs, a sore left elbow, a bruised left knee and a sore right wrist. He was deprived of his liberty for a period of several hours before being released on a promise to appear. Fortunately for Mr. Penner, the charges against him were subsequently withdrawn and he did not have to undergo criminal proceedings.
Any unlawful or unnecessary arrest is a serious matter. As the Commission previously noted in Blowes-Aybar and Toronto Police Service (24 February, 2003, O.C.C.P.S) at page 4, it “is a serious matter to the complainant, and to society as a whole.” As well, such conduct cannot help but be damaging to the reputation of a police service and requires deterrence.
On the mitigating side there are a number of factors worth noting. Constable Parker has fifteen years employment with the Niagara Regional Police Service. He has no prior disciplinary history, received positive performance assessments and one commendation.
On the facts before us, there is no doubt that Constable Parker showed poor judgment and a misunderstanding of his obligations and duties in a courtroom setting. However, given this experience we have no reason to believe that such conduct will be repeated. As a result, we have no concerns with reform or rehabilitation.
Further, while we do not excuse Constable Parker’s actions, we do note that Mr. Penner’s behavior contributed to the events in question. There certainly was an element of provocation in Mr. Penner’s ‘chirping’ during Constable Parker’s testimony, failure to respond to court direction and resistance.
Previous Commission and Board of Inquiry decisions involving unlawful or unnecessary arrest and the corresponding unlawful or unnecessary use of force have resulted in a range of penalties. However, we agree with Mr. McKaig that, absent extreme circumstances, the most common dispositions in such cases involve forfeiture of days off, forfeiture of pay or suspension for a set number of days.
See Bonhomme and Timmins Police Service (7 December, 1997, Ont. Bd. of Inq.) with penalty of forfeiture of five days (forty hours) off and Blowes-Aybar and Toronto Police Service with penalty of suspension of four days (thirty-two hours).
As well, we are advised that there was a disciplinary decision issued by the Niagara Regional Police Service in September of 2002 involving an unlawful or unnecessary arrest of a woman for being drunk and disorderly. It was subsequently determined at trial that she was not intoxicated. There was some provocation (a derogatory name addressed to the officer) and minor injuries. A penalty of forfeiture of twenty-four hours was imposed on the officer in question.
We see no reason why such a suspension or forfeiture would not be appropriate in Constable Parker’s case. However, we note that under the provisions of the current Collective Agreement that if we were to impose a penalty of forty hours or more this would result in Constable Parker losing eligibility for performance pay. This would represent an additional penalty of approximately $4,000.
Under the circumstance that seems excessive. Accordingly, we impose on Constable Parker a penalty of suspension without pay for a period of four days or thirty-two hours.
This brings us to Constable Koscinski. To our mind his situation is different from that of Constable Parker. First, he is the more junior officer. He was sitting in the courtroom on the day in question, was not involved in making any unnecessary comments and only came to the aid of Constable Parker after he laid hands on Mr. Penner.
Constable Koscinski’s record discloses that he has six years employment as a police officer. He has no disciplinary history, received two prior commendations and either positive or exceptional performance evaluations. As a result, he has recently been awarded early entry into the CIB Street Crime Unit. Given the above, we direct that Constable Koscinski forfeit two days or sixteen hours off.
We conclude by noting that the Act does not provide us with the authority to direct a public apology as requested by Mr. Penner.
DATED AT TORONTO THIS 6th DAY OF JULY, 2005.
Murray W. Chitra Chair, OCCPS
Tammy Landau Member, OCCPS