Seamons v. Durham Regional Police, 2006 CanLII 84672

OCCPS #06-08

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Seamons v. Durham Regional Police, 2006 ONCPC 8

REASONS FOR DECISION

CONSTABLE KEVIN SEAMONS

Appellant

DURHAM REGIONAL POLICE SERVICE

Respondent

Presiding Members:

Murray Chitra, Chair

Sylvia Hudson, Vice Chair

Hyacinthe Miller, Member

Appearances:

William MacKenzie, Counsel for the Appellant

Staff Inspector Brian Fazackerley, Counsel for the Respondent

Hearing Date: July 7, 2006

This is an appeal from a penalty of immediate dismissal (in the absence of resignation in seven days) imposed on Constable Kevin Seamons by Superintendent R.J. Chapman (the “Hearing Officer”) on January 3, 2006. The penalty in question followed guilty pleas to ten counts of misconduct.

Specifically, on October 19, 2004 Constable Seamons pled guilty to four allegations of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at Regulation 123/98 (the “Code”) and two allegations of neglect of duty contrary to section 2(1)(c)(ii).

On June 23, 2005 Constable Seamons pled guilty to two further allegations of discreditable conduct contrary to 2(1)(a)(xi), one allegation of neglect of duty contrary to 2(1)(c)(v) and one allegation of corrupt practice contrary to section

2(1)(f)(ii) of the Code.

These findings of guilt are not in dispute.

Background:

Kevin Seamons started his career with the Durham Regional Police Service (the “Service”) on November 30, 1987. At the time of the decision with respect to the matters before us he had been employed as a police constable for seventeen years.

Constable Seamons’ employment record has been generally satisfactory with the exception of disciplinary convictions in 1994 and 1997.

In November of 1994 Constable Seamons pled guilty to neglect of duty and was assessed a penalty of forfeiture of 32 hours off duty time to be worked at the discretion of the Divisional Commander. This charge concerned a revolver that had been turned in for destruction. Constable Seamons received the firearm, failed to properly register it or complete the required reports. Instead, he kept it in his personal locker.

In October of 1997, Constable Seamons pled guilty before a Provincial Court Judge to the charge of careless storage of a firearm contrary to the Criminal Code of Canada. He received a conditional discharge and probation for six months. As a result of this finding a disciplinary hearing was convened in December of 1997. Constable Seamons pled guilty to the charge of discreditable conduct and was directed to work four shifts consisting of 12 hours each at the discretion of his Divisional Commander, without remuneration.

In December of 2003 Ontario’s Special Investigations Unit (“SIU”) commenced a criminal investigation into Constable Seamons. This arose from a complaint of sexual assault made by C1, a seventeen year old woman. As a result, Constable Seamons was suspended from duty. Constable Seamons’ police locker was searched. Nine photographs of a pornographic nature and three police batons

were discovered.

On February 24, 2004 the SIU concluded that no criminal charges would be brought against Constable Seamons. However, the Service continued with a disciplinary investigation. As a result, Constable Seamons was served with Notices of Hearings on April 29, 2004 and May 19, 2004.

The Disciplinary Hearing:

When Constable Seamons first appeared before the Hearing Officer on May 25,

2004 he faced a total of twenty allegations of misconduct. As noted earlier, on October 19, 2004 Constable Seamons pled guilty to six counts. The disciplinary hearing continued, focusing on two charges.

1The names of civilian complainants have been modified.

The hearing took place over the course of eight days in October, November and December of 2004. On April 15, 2005 the Hearing Officer released a decision finding Constable Seamons not guilty of the two particular allegations.

On June 23, 2005 the hearing resumed. On that date Constable Seamons pled guilty to four further allegations of misconduct. The eight remaining allegations were withdrawn.

Sentencing:

The sentencing hearing commenced on July 21, 2005.

Over the course of a number of days testimony was received from thirteen witnesses. They included nine current or former Durham officers. These individuals had either worked with, partnered or supervised Constable Seamons. They spoke to his character, work habits and reputation.

Two female civilian witnesses employed by the Service also testified. They spoke to the assistance provided to them by Constable Seamons in personal situations requiring police intervention.

Constable Seamons gave evidence, as well as a civilian witness identified as

Jane Doe who delivered her testimony in camera.

To put matters in perspective, the ten charges that were the subject of Constable

Seamons’ guilty pleas, can be described under three broad headings: A) Jane Doe’s Photographs

Two of the charges to which Constable Seamons pled guilty arose from the discovery of the nine pornographic photographs in his locker. They had been removed from the home of Jane Doe.

The specific allegations were:

1. Discreditable Conduct

That Constable Seamons failed to submit any seized property reports, notations or documentation related to nine Polaroid-style pornographic photographs he seized during a domestic violence investigation on November 18, 2003.

2. Corrupt Practice

That Constable Seamons failed to account for and did not return nine Polaroid-style pornographic photographs, he seized during a domestic violence investigation on November 18, 2003.

In testimony Constable Seamons acknowledged being dispatched to Jane Doe’s residence to respond to a domestic disturbance call. While he was checking out the bedroom, he noticed nine Polaroid photos of a pornographic nature lying on the bed. He stated that he picked them up and put them into a dark sweater or jacket, because he did not want Jane Doe to be embarrassed.

Jane Doe was transported, in handcuffs, to the police station. There, Constable Seamons removed the photos from the jacket and placed them in his ‘pigeon- hole’ and eventually moved them to his locker. He stated that he intended to go back to Jane Doe’s home and return the photographs.

Constable Seamons returned to Jane Doe’s home a few days later and inquired how she was doing. He did not return the photographs. He explained that he did not do so because he did not want to embarrass her in front of her nine-year old son.

He testified that he never thought of submitting property reports because, in his mind, the photos were not exhibits forming part of the domestic disturbance investigation. He did not consider them to have been seized.

Jane Doe testified that she had no idea that intimate pictures of her and her former boyfriend had been removed by Constable Seamons. She gave no permission to remove them. After she was released from custody and returned to her home she noticed that they were missing and started looking for them. When they could not be found she “panicked”.

Jane Doe further testified that when she was informed almost a month later that the pictures had been found in Constable Seamons’ locker, that she was shocked, hurt and embarrassed. She stated that now, every time she sees a male police officer in uniform she cringes and has to look away.

B) The Batons

Another charge concerned two of the batons that were also discovered in Constable Seamons’ locker. One was a Service issued baton that Constable Seamons had previously reported as being lost in 2001. The second was unauthorized.

The specific allegation was:

3. Neglect of Duty

That between January 23, 2001 and December 5, 2003 Constable

Seamons failed to submit reports or make any memorandum book entries to indicate that his lost baton had come back into his possession. He further admitted he did not notify his superiors, nor did he submit any reports

indicating that he had located another expandable baton not issued by the

Durham Regional Police Service.

Constable Seamons testified that the Service baton was registered to him. He believed that he had lost it during a foot chase through deep snow in Newcastle. As a result, he submitted a report to his sergeant and received a replacement. He testified that a year later, Sergeant Closs returned the original baton to him. Constable Seamons acknowledged not reporting the baton being returned or making any inquiries on what steps to take now that he had more than one Service issued baton.

Constable Seamons also testified that he found the second baton or nightstick on the floor behind some briefcases when he was cleaning out the Clarington station locker room. He recognized that it was not Service issue but did not think it had been seized or was evidence. Rather, he believed that it might belong to an

officer from Peel or York, and figured it would ‘marry up’ down the road when someone mentioned that they had misplaced it. He testified that he simply put the second baton in his locker.

C) Relationship with C

The remaining seven guilty pleas centered around Constable Seamons’ dealings with C, a seventeen year old woman. It was C’s allegations that gave rise to the SIU investigation.

It would appear that C’s behaviour was of concern to her parents. On May 23,

2003 they brought her to the Clarington Community Police Office because they believed that she may have stolen and used their credit card.

They asked that C be spoken to by a police officer. That police officer turned out to be Constable Seamons. This initial contact appears to have given rise to an ongoing relationship with both C and her family. This included her older sister, A.

The specific allegations to which Constable Seamons pled guilty were as follows:

4. Discreditable Conduct

That on May 23, 2003 Constable Seamons conducted an interview with the seventeen year-old female regarding a stolen credit card. The interview lasted several hours and upon completion he failed to submit any reports related to the matter.

5. Neglect of Duty

That between May 23 and December 3, 2003, while on duty, Constable Seamons attended the residence of a 17-year-old female

and her family on numerous occasions. He transported this female in his police vehicle without advising Communications regarding any mileage or completing any formal documents that would authorize this transport.

6. Discreditable Conduct

That between May 23, 2003 and December 3, 2003, while on duty, Constable Seamons left his patrol area in the Municipality of Clarington to drive a 17-year-old female in his police vehicle to the City of Oshawa and then drove her back to her residence in Clarington.

7. Neglect of Duty

That on September 22, 2003 Constable Seamons attended an Attempt Suicide call. He located the 17-year-old female, and after talking to her for approximately 1 1/2 hours, returned her home. Constable Seamons did not complete an Attempt Suicide report, did not arrange for any medical assistance/assessment and did not enter the female on CPIC as "suicidal".

8. Discreditable Conduct

That between October 8 and 9, 2003 while on duty, Constable Seamons allowed a 17-year-old female to be present at the Clarington Community Police Office while he conducted a Scenes of Crime

Officer (SOCO) detail on a recovered stolen vehicle.

9. Discreditable Conduct

That on October 30, 2003 Constable Seamons had a 17-year old female in his marked police vehicle, while he attended a domestic incident call in Bowmanville. The 17-year old female waited in the police vehicle while he dealt with the call, and he then drove her home.

10. Discreditable Conduct

That on October 9, 2003 Constable Seamons completed and signed a Form 6, Provincial Offences Act, Ontario Court of Justice Summons and left it on the parked vehicle belonging to A. He further admitted there were inappropriate comments written in the “location” and offence sections of the Summons.

Constable Seamons contacts with C and her family were characterized by his

Counsel as a type of community interaction consistent with the Service’s core

values. He indicated that Constable Seamons was trying to reach out to C and assist her with personal difficulties.

It was asserted that he was in effect acting as a social worker or surrogate parent. Some of this necessarily entailed driving C to and from the police station and either home or school (#5). It was noted that while Constable Seamons spent a significant amount of his personal time counseling C he never claimed overtime for his efforts.

It was acknowledged that on occasion C was either present at the police station or sitting in Constable Seamons’ cruiser while he attended to ongoing police duties (#8 and #9). However, it was argued that her peripheral presence did not jeopardize any ongoing investigations.

One of the above noted allegations (#6) concerned an event where Constable Seamons left his patrol zone and drove C in a police cruiser from Clarington to a “seedy” part of Oshawa. It was argued that C had indicated an intention to run away from home and Constable Seamons wanted to show her what it would be like to live on the streets.

Another allegation (#7) concerned a reported suicide attempt by C. Constable Seamons tracked the young woman down to a friend’s house and spoke to her. It was argued that Constable Seamons properly concluded that the threat was not legitimate and just an attention seeking ploy that did not warrant reporting or notation.

It was suggested that there was never anything inappropriate about these events or the ongoing relationship with C. It was argued that any shortcomings on Constable Seamons’ part were of a procedural nature (i.e. failing to report, record activities or seek permission).

Allegation (#10) concerned a Provincial Offences Notice that Constable Seamons had left on C’s sister’s car windshield. He testified that he had been asked to ‘keep an eye on the family’s cars’. Further, during his dealings with the family he had developed a ‘working relationship’ with A. They had conversations on the subject of men she had dated, who were also known to the police.

He testified that he knew that A had a ‘bad day’ on October 9, 2003. When he was driving by her vehicle, he found the pink part of a Summons in his police vehicle coffee tray. Using the in-car computer, he accessed the Canadian Police Information Centre (CPIC) system for A’s licence number and date of birth, filled out the Summons and left it on her windshield as a joke.

The ticket gave A’s address as the “funny farm Clarington”. The allegation was that she had committed the offence of “date [sic] and ruin every shithead in

Bowmanville.” It was signed with Constable Seamons’ name, badge number and a ‘smiley’ face.

Constable Seamons testified that this was meant as a ‘jest’ or ‘humour’ intended to ‘lift’ A’s spirits.

In addition to the evidence identified above the Hearing Officer received thirty-six exhibits and detailed submissions from counsel.

The Penalty

The written decision was released on January 3, 2006.

In his reasons the Hearing Officer summarized the evidence and the submissions of both the prosecution and defence in some detail.

He found that with the exceptions of the allegation relating to the batons all of the other charges arose from a deliberate course of conduct that occurred over a six month period. As such, he concluded he would consider the nine allegations together for the purposes of assessing penalty (i.e. totality principle).

The Hearing Officer found that Constable Seamons’ assertion that he was simply attempting to follow the Service’s Mission Statement was not credible. He described Constable Seamons’ conduct as favouring both C and her family and essentially providing them with a ‘private police service’.

He noted that Constable Seamons actions were without permission,

authorization or documentation and in breach of Service procedures. Further, this conduct demonstrated a lack of respect for confidential information and had the potential to place the safety of other citizens in jeopardy or compromise the integrity of ongoing police investigations. As such, he concluded that Constable Seamons’ actions were a clear breach of public trust.

The Hearing Officer found Constable Seamons’ overall conduct to be serious. He characterized the removal of the photographs from Jane Doe’s home as amounting to “theft”. He noted this and the incident with respect to the baton

were made far more serious in light of Constable Seamons’ prior discipline history (i.e. putting a citizen’s surrendered revolver in his locker rather than submitting it for destruction).

The Hearing Officer acknowledged Constable Seamons’ guilty pleas. However, he questioned, given Constable Seamons’ explanation of his conduct, whether or not he could be said to have demonstrated true remorse.

The Hearing Officer examined Constable Seamons’ employment history. This included recent performance assessments, letters of commendation and the

testimony of witnesses who spoke on his behalf. He acknowledged that the positive aspects of that employment history were a proper mitigating factor. However, he noted that a number of the character witnesses were not aware of the details of the allegations and, when advised, made clear that they did not condone what Constable Seamons had done.

The Hearing Officer found that Constable Seamons’ ‘violation’ of trust called for a penalty reflecting general deterrence to ensure that other officers were aware of the essential need to follow rules and procedures when working independently and without direct supervision.

The Hearing Officer noted that neither the defence nor Constable Seamons raised concerns about any physical or psychological issues or other handicap.

The Hearing Officer concluded that Constable Seamons’ conduct demonstrated a belief that ‘he only has to follow the rules when he thinks he needs to’. Seen in light of his prior disciplinary history, he expressed doubt that Constable Seamons could be rehabilitated.

Further, the Hearing Officer concluded that the potential damage to the

reputation of the Service resulting from Constable Seamons’ conduct was ‘huge’.

The Hearing Officer found that Constable Seamons had shown that he was not fit to remain an employee of the Service and directed his dismissal in the absence

of a resignation within seven days.

Appellant’s Position:

Mr. MacKenzie argued that the Hearing Officer erred by imposing the penalty of dismissal on Constable Seamons given the nature of the misconduct for which guilty pleas were entered.

He asserted that the Commission may properly interfere when a hearing officer has committed an error in principle or imposed a penalty outside of the acceptable range. On this point he drew our attention to R. v. Rezaie (1996), 31

O.R. (3d) 713 (Ont. C.A.).

Mr. MacKenzie acknowledged that the Hearing Officer’s decision accurately reflected both the evidence and the submissions of the parties. However, he submitted that the Hearing Officer erred in principle by completely misapprehending the character evidence presented on behalf of Constable Seamons.

Mr. MacKenzie noted that each of the eleven character witnesses was asked to comment on Constable Seamons’ reputation for honesty and integrity, policing skills, work ethic, professionalism and their willingness to work with him again.

He argued that the Hearing Officer erred by extracting from the character evidence only negative inferences and failing to give due consideration to the positive aspects and overall willingness of the witnesses to continue working with Constable Seamons. He drew our attention to various parts of the decision to support this position.

Mr. MacKenzie argued that by disregarding positive character evidence without sound justification, the Hearing Officer abrogated his duty to balance and consider the issue of Constable Seamons continuing “usefulness” as a police officer. Guinette and Ottawa-Carleton Regional Police Service (1998), 3 O.P.R.

1305 (O.C.C.P.S.).

He further suggested that the Hearing Officer only paid lip service in his reasons to the Ontario Court of Appeal decision in Re Trumbley et al. (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2ND) 570 where the standard to be applied in cases of police dismissal is articulated.

Mr. MacKenzie argued that the Hearing Officer failed to demonstrate in his reasons that he had considered demotion as an alternate penalty or properly apply principles of progressive discipline. Galassi v. Hamilton Police Service [2005] O.J. No 2301 (Ont. Div. Ct.) and Mowers and Hamilton Wentworth Regional Police Service (1999), 3 O.P.R. 1327 (O.C.C.P.S.).

Mr. MacKenzie reminded us that consistency in disciplinary process is the hallmark of fairness. He asserted that by failing to consider or otherwise explain why demotion would not have been an appropriate penalty the Hearing Officer deprived both Constable Seamons and the Commission with any rationale as to how the principles of progressive discipline were or were not applied in this case.

Mr. MacKenzie acknowledged that the Hearing Officer identified the thirteen relevant sentencing considerations. However, he submitted that many of these sentencing factors were misunderstood or misapplied to the detriment of Constable Seamons. Blowes-Aybar and Toronto Police Service (7 March, 2003, O.C.C.P.S.) and R. v. Santos [1993], O.J. No. 2539 (Ont. C.A.).

He argued that the Hearing Officer failed to properly define and apply the

concept of “public interest”; overstated the seriousness of the misconduct and the damage to the reputation of the Service; did not give sufficient weight to Constable Seamons’ guilty pleas or positive employment history; and did not properly assess his potential for rehabilitation. Kelly and Toronto Police Service (16 May, 2005, O.C.C.P.S.).

He asserted that while Constable Seamons’ actions were procedurally incorrect, he was trying to follow the Service’s Mission Statement. Further, there was no evidence of real damage to the Service.

He concluded by stating that given Constable Seamons’ potential for rehabilitation and the progressive discipline continuum, a significant demotion would be the appropriate penalty.

Respondent’s Position:

Staff Inspector Brian Fazackerley, on behalf of the Service, argued that the penalty should stand.

Staff Inspector Fazackerley noted that the Commission’s mandate and standard of review is a matter of settled law. Unless a hearing officer’s reasons taken in the context of the record discloses that there was a manifest error in principle, relevant factors in assessing penalty were ignored or the penalty assessed was

outside the range appropriate to the particular circumstances of the case at hand, the Commission must defer to the hearing officer and may not interfere.

On this point he drew our attention to Brudlo and Toronto Police Service (23

November, 2005, O.C.C.P.S.), Favretto and Ontario Provincial Police (2002), 3

O.P.R. 1540 (O.C.C.P.S.) affirmed (2004), 2004 CanLII 34173 (ON CA), 72 O.R. (3d) 681 (Ont. C.A.), Galassi and Hamilton Police Service (3 September, 2003, O.C.C.P.S.) and Blackburn and Niagara Regional Police Service (17 September, 2003, O.C.C.P.S.).

He noted that the penalty stage of a police misconduct hearing is not in the nature of a criminal sentencing proceeding, but forms part of a larger, ongoing employment process. He argued that the statement that "the punishment must fit the crime" is inapt, to the extent that it implies recourse should be had to narrower criminal law sentencing principles.

On these points he cited Galassi v. Hamilton Police Service (2005), O.J. No.

2301 (Ont. Div. Ct.) and Buks and Durham Regional Police (19 May, 2006, O.C.C.P.S.).

Staff Inspector Fazackerley noted that while consistency in sentencing in comparable situations is important, it is also recognized that local employment factors and priorities differ among police services. He drew our attention to Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.) and Favretto and Ontario Provincial Police.

Staff Inspector Fazackerley argued that the Hearing Officer properly identified the relevant dispositional considerations and correctly dealt with them in his written reasons given the evidence before him. Further, he argued that while not a lawyer, the Hearing Officer displayed a lay tribunal’s proper understanding of all

of the facts. He stated that our task is not to be overly critical of the language used or to focus on mistakes that do not affect the decision as a whole. Galassi v. Hamilton Police Service (Ont. Div. Ct.) and Valois and Toronto Police Service (24 November, 2003, O.C.C.P.S.).

With respect to Mr. MacKenzie's contention that the Hearing Officer committed an "error in principle" because he drew certain inferences from the character evidence called by defence counsel, Staff Inspector Fazackerley submitted that the Hearing Officer, based on his police experience, did in fact understand "what Constable Seamons was trying to do”.

He asserted that the Hearing Officer fairly summarized the evidence of witnesses and properly reviewed both it and the submissions before him. This included sworn testimony from Constable Seamons that he "was just doing what he thought management expected of them" even though he didn't strictly follow the rules.

Staff Inspector Fazackerley argued that the Hearing Officer was entitled to assess Constable Seamons’ benign explanation for his conduct and make a determination whether or not it was credible. He asserted that the Hearing Officer conducted a proper analysis of Constable Seamons’ actions, fairly assessed his credibility and reached reasonable conclusions that bore directly on his

character. R. v. Flis and Grande 2006 CanLII 3263 (ON CA), [2006] O.J. No 442 (Ont. C.A.)

Further, Staff Inspector Fazackerley argued that the Hearing Officer was entitled to reach the conclusion that the seriousness of the misconduct and Constable Seamons’ employment history meant that he was beyond rehabilitation and did not warrant a lesser penalty. He asserted that there is precedent for termination in cases with multiple findings of guilt and prior disciplinary history. Coon and Toronto Police Service (10 April, 2003, O.C.C.P.S.)

Staff Inspector Fazackerley concluded by requesting that we dismiss the appeal.

Decision:

A police officer is accountable to his or her profession, public and employer. This occurs through the police disciplinary process.

Disciplinary hearings are administrative law proceedings of a labour relations nature. They are governed by the provisions of the Police Services Act R.S.O.

1990, c. P.15 as amended (the “Act”) and the Code.

When a police officer has been found guilty of misconduct, a hearing officer must impose a penalty. These penalties range from reprimand to dismissal depending upon the nature of the wrongdoing and any mitigating circumstances.

The factors to be taken into account when assessing a suitable penalty are well established. In Williams and Ontario Provincial Police this Commission identified three key elements. They include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police service that would occur if the officer remained on the force.

Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach. Other factors can be relevant, either mitigating or aggravating a penalty, depending on the conduct in question. These include the officer’s employment history and experience, recognition of the seriousness of the transgression and handicap or other relevant personal considerations.

In addition, when imposing penalty, it is important to consider previously adjudicated disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.

Our function in a disciplinary appeal is not to second-guess the hearing officer or substitute our own opinion. Rather, it is to assess whether or not the hearing officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is a manifest error in principle or the proper factors are ignored, we may vary the disposition. This is not lightly done.

We are mindful of the principle reflected by the Ontario Court of Justice in

Galassi v. Hamilton Police Service at paragraph 19:

In reviewing the reasons of a lay tribunal, the task of this Court is not to be overly critical of the language used, nor is it to focus on mistakes that do not affect the decision as a whole (Re Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2d) 1 (Ont. C.A.). This approach must be kept in mind when the reasons of the Hearing Officer are examined, as he is not legally trained.

This is the approach that we have adopted.

In the case before us, the Hearing Officer delivered a well-written, reasoned and detailed penalty decision of some thirty-five pages. There is no dispute that the Hearing Officer accurately summarized the evidence and the positions of the parties. Further, the Hearing Officer properly identified the relevant penalty considerations and addressed each in turn.

In his decision, the Hearing Officer characterized the conduct in question as being contrary to the public interest, serious and warranting both general deterrence and a significant penalty. We agree. Further, we also agree with the Hearing Officer that the facts of this case raise no issues with respect to management approach.

On May 25, 2004 Constable Seamons appeared before the Hearing Officer charged with twenty counts of misconduct. He eventually pled guilty to ten. This included six counts of discreditable conduct, three allegations of neglect of duty and one count of corrupt practice.

The sheer number of convictions is striking. Further, nine of these charges relate to conduct that occurred over a period of six months. The Hearing Officer concluded that what was in question was a deliberate course of behaviour and not isolated acts of human frailty, simple errors in judgment or mere failures to follow established procedures. This finding was certainly open to him.

On the Jane Doe matter, Constable Seamons admitted taking personal photographs without permission from a private home during a domestic violence investigation. We are mindful that Constable Seamons was not charged with theft. However, we agree with the Hearing Officer that this does not mitigate the impropriety of his actions.

Section 2(1)(f) (ii) of the Code deems it to be corrupt practice for an officer to fail “to account for or make a prompt, true return of money or property received in an official capacity”. This is one of the most serious allegations an officer can face.

Every citizen is guaranteed certain rights under the Charter. When police officers are responding to calls for service at private residences, there is an expectation that property and personal belongings will be safeguarded and respected. Especially in a private space such as a bedroom, there should be no concerns that personal effects will be surreptitiously removed and subsequently stored in a police locker and not accounted for through entry on police records as required

by Service procedures.

Constable Seamons failed to follow established Service Policy and document photos which he deliberately and without legal justification removed from Jane Doe’s bedroom. He then failed to return them to the rightful owner. The photos were only discovered in his locker during the SIU’s investigation into other allegations of serious misconduct.

Constable Seamons’ explanation was that he wanted to spare Jane Doe embarrassment and had planned to return the photographs to her at a later date. However, when Constable Seamons and another officer returned a few days

after the arrest to her home nothing was said about the photos. This failure raises obvious concerns about his explanation for his actions.

Constable Seamons’ conduct caused Jane Doe great distress, embarrassment and has greatly affected her ability to deal with male police officers. This speaks directly to the adverse impact of Constable Seamons’ actions on the reputation of his police Service.

The allegations with respect to the batons are certainly not as serious. On these matters, Mr. MacKenzie suggested that Constable Seamons had simply been

‘absent-minded’ and there had been no adverse impact resulting from his conduct.

However, the Hearing Officer noted Constable Seamons’ prior disciplinary conviction for failing to account for a revolver. He stated at page 30 of his decision: “the previous conviction of accepting property and not properly recording it is very much in line with his actions of finding the baton and putting it in his locker. Although 11 years later, as pointed out by defence counsel it tells me that he did not learn the appropriate lesson in 1994.”

To our mind this is not an unreasonable observation. Police use of force equipment must be accounted for. This includes equipment that is issued, surrendered or found.

However, of most concern is Constable Seamons’ conduct with C. In his testimony, Constable Seamons acknowledged that he had developed a personal relationship with both C and her family. It would appear they had his confidential telephone numbers and contacted him directly, rather than calling in to the Communication Centre. He responded to their calls numerous times in relation to several matters.

The Hearing Officer described this as being akin to ‘providing private police services’ and a breach of Constable Seamons’ duty to perform his duties without favour or affection.

This relationship started on May 23, 2003 when Constable Seamons interviewed C in a room at the Clarington Community Police Office for several hours with respect to a possible stolen credit card. No other persons were present. Constable Seamons prepared no paperwork or reports on this incident.

Subsequently, on various occasions, he transported C in his police vehicle without notifying his supervisors or the Communications Centre. This included driving her to or from school. He did not obtain permission for using a Service vehicle to transport a female civilian or complete any reports documenting her presence.

Constable Seamons would bring C to the station. He indicated there were always other officers present and that the station was a “safe house” for her. However, it would appear that the other officers who were on duty were not aware of the nature of Constable Seamons’ activities. They were certainly never reported to

his superior officers.

On one occasion, Constable Seamons had C sit in a chair at the police station while he completed a SOCO detail. On another, Constable Seamons was dispatched to respond to a domestic violence call while he was travelling with C in his police vehicle. He had her wait in the car while he responded and afterwards took her home.

Mr. MacKenzie characterized these acts as “a form of community service that breached procedure” and noted that her presence did not affect Constable Seamons’ ability to investigate the matters in question. This explanation strains credulity. It seems self evident that a teenage civilian should not be present or in the vicinity of ongoing investigations in which they have no personal interest.

We agree with the Hearing Officer that this put C in a position where she potentially had access to confidential information and her presence could have compromised the integrity of the investigations in question. Certainly, it would have been difficult to explain her presence at any subsequent criminal proceeding.

On one occasion, Constable Seamons drove C from Bowmanville to Oshawa without proper notification to his supervisors or the Communications Centre. He left his assigned patrol zone without permission. The Hearing Officer properly concluded that this meant that the citizens of his zone were “without the services he was paid to provide.” It is indeed fortunate that nothing serious occurred in his absence.

Then on September 22, 2003 C’s mother made a “frantic call” reporting that C might be attempting suicide. Constable Seamons called off the other officers attempting to respond, located C at a friend’s house and once again transported her in his police vehicle without submitting any documentation.

Constable Seamons suggested that he did not do so because he “didn’t feel this was a legitimate call” but rather that C was “only doing it to get back at her parents”. Whether this was a legitimate suicide call or teenage acting-out was not Constable Seamons’ decision to make.

While Constable Seamons may have been able because of his intimate knowledge of C and her friends to locate her, his handling of the call failed to conform with clearly articulated Service polices and procedures with respect to attempted suicides. These policies must be consistently applied in order to safeguard the public, officers and the Service. He failed to do so. His cavalier and dangerously uninformed response to a potentially serious situation was inexcusable.

Further, he did not enter the incident on CPIC to assist officers if there were future calls of this nature. He did not refer C to community agencies for medical or psychiatric treatment as the policies dictated. Rather, he took it upon himself to counsel this troubled young woman without the benefit of health or social

service professionals. This is clearly beyond the mandate and training of a police officer.

The final charge concerned Constable Seamons’ creation of a ‘fake’ Provincial

Offences Notice for C’s older sister, A. Constable Seamons admitted to

conducting a CPIC offline search to gather personal information on A in order to complete the pink copy of a discarded Notice he found in the coffee holder of his police vehicle. Constable Seamons signed and dated the notice and in what he characterized as an effort to ‘lift her spirits’, he included the notation ‘try to have a nice day’ and added a smiley face. It was then placed under the windshield wiper of A’s vehicle.

According to Constable Seamons, the Notice was perceived as a joke by the family and displayed on the side of their refrigerator. On a later visit to the family, A’s mother ‘pulled it off the fridge and said we show everybody’.

Clearly, police officers should not be issuing fake Provincial Offences Notices. They should not be using confidential computerized police data banks for the purposes of making ‘jokes’ or helping others ‘feel better’.

According to Mr. MacKenzie, Constable Seamons was implementing the core values of the Service when he dealt successfully with three instances involving C., to the satisfaction of the family. The Hearing Officer rejected this explanation. He concluded at page 28 of his decision that “I do not find his evidence that he believed he was trying to be what the Service wanted him to be as credible.”

In his role as a finder of fact the Hearing Officer was entitled to reject Constable Seamons’ explanation for his conduct. It is clear that Constable Seamons undertook several activities with C that were either prohibited or questionable. It was certainly open to the Hearing Officer to conclude that his failure to seek permission or make any record of his activities was symptomatic of more than benign omission to follow standard procedures.

There was no evidence presented that he was affected by any impediment or handicap. The fact that C’s parents may have known that she was with Constable Seamons on different occasions and approved or might have found the ticket amusing does not mitigate the seriousness of his actions.

Further, as noted earlier, the policies and procedures that Constable Seamons chose not to follow were there for a reason.

The Hearing Officer noted that several witnesses who appeared before him stated that officers have a great deal of "discretionary time", especially in the smaller offices of the Service.

Police officers by the very nature of their work are required to work independently. The Service has legislation, rules, policies, procedures and directives that must be followed by all members.

There is an expectation that all members will do the "right" thing with respect to the trust placed in them. The Hearing Officer concluded that any violation of that

trust must be treated seriously to ensure general deterrence. This was certainly a reasonable conclusion.

Mr. MacKenzie argued that the Hearing Officer failed to give sufficient weight to Constable Seamons’ guilty pleas. In his reasons the Hearing Officer acknowledged that guilty pleas must normally be treated as a mitigating factor.

However, given the explanation offered by Constable Seamons for his actions, the Hearing Officer expressed reservations that these guilty pleas could be viewed as expressions of true remorse. In other words, Constable Seamons’

guilty pleas only reflected ‘regret’ that he had not followed procedures, but did not in any way acknowledge the highly questionable nature of his conduct.

Given the above finding, the Hearing Officer was entitled to question the real value of the pleas.

To our mind, the Hearing Officer appears to have overstated the potential impact of the findings of guilt on Constable Seamons’ ability to testify in future court proceedings. Certainly, defence counsel could seek production of Constable Seamons’ disciplinary record to attach his credibility as a witness. Such requests however, are subject to the procedures established in R. v. O’Connor (1995), 103

C.C.C. (3rd) 1 (S.C.C.).

That being said, we are satisfied that this statement does not rise to the level of an error that affects the decision as a whole.

The Hearing Officer acknowledged that, with the exception of the disciplinary matters in 1994 and 1997 that Constable Seamons’ employment record was unblemished, but unremarkable. He noted that a performance assessment completed in 2003, showed that Constable Seamons had met or exceeded expectations in every category. He also noted six letters from the public in Constable Seamons’ personnel file dated between 1997 and 2001.

The Hearing Officer commented on the character witnesses’ testimony that based on their dealings with Constable Seamons, primarily earlier in his career, they would have no difficulty working with him. They described him variously as a

‘seasoned officer who was truthful and honest’, a ‘caring person’, with ‘his own style’, ‘good on the computer, and with paperwork’ a ‘guy you could go to’,

‘showing a lot of compassion and caring’.

However, the Hearing Officer concluded that these factors were insufficient to outweigh his serious reservations arising from the nature and history of the offences in question. At the heart of this appears to have been grave concerns about Constable Seamons’ potential for rehabilitation and continued usefulness as a police officer.

The Hearing Officer properly stated that the potential for rehabilitation or reform is an important factor to be taken into consideration when deciding upon an appropriate disposition.

There was every indication from several of the character witnesses that Constable Seamons was capable of completing lengthy and detailed reports; in fact, he was praised for the quality of his work. Yet, in the ten incidents before the Hearing Officer, he did not follow policy or submit reports as he was required to do. This was also reflected in prior disciplinary findings.

It would appear that Constable Seamons is either unable or unwilling to conduct himself in accordance with the rules put in place to ensure both consistency and accountability.

As well, as a police officer with seventeen years experience, Constable Seamons displayed a startling lack of appreciation of the outcome of his actions. His conduct over a lengthy period of time reflects a pattern of poor judgment, faulty decision-making and a capricious approach to established procedures.

This conduct was not limited to minor matters. It included the unauthorized seizure of a citizen’s property, the abuse of CPIC, the use of a police vehicle to take a young person to and from school, leaving a patrol zone without permission, having an unauthorized civilian at the scene of police investigations and generating a fake Provincial Offences Notice.

Given the above, it was open to the Hearing Officer to conclude that Constable Seamons was in effect ‘ungovernable’. That notwithstanding the positive character references, there was serious doubt about his potential for

rehabilitation and his future usefulness as a police officer who could be trusted to function appropriately and in accordance with Service policy.

Further, it is evident to us that these legitimate concerns would not be resolved by a penalty of demotion.

The Hearing Officer acknowledged that there was no evidence of damage to the Service or its reputation. However, as an experienced police officer who has risen to the rank of Superintendent with the Service, the Hearing Officer had the necessary knowledge and experience to assess what the community would

consider to be behaviour “likely to bring discredit upon the reputation of the police force”.

On this point we note the test articulated at page 4 in Galassi and Hamilton

Police Service for assessing what conduct might reasonably be expected to bring discredit to the reputation of a police service. One part of that test states:

In determining the reasonable expectations of the community, the Hearing Officer may use his or her own judgment, in the absence of evidence as to what the reasonable expectations are. The Hearing Officer must place him or herself in the position of the reasonable person in the community, dispassionate and fully apprised of the circumstances of the case.

Leaving aside the response of Jane Doe to the actions of Constable Seamons, it is evident to us that it was well within the purview of the Hearing Officer to conclude at page 33 of his decision that “if the details of the allegations against Constable Seamons were made known to the public, the damage to the reputation of the Durham Regional Police Service would be huge.”

The community must have confidence that police officers will uphold their sworn duty to deliver service without favour or bias. Individuals coming into contact with the police must be confident that they will be treated professionally and in accordance with established procedures.

It is a fair conclusion that given the number, nature and details of Constable Seamons misconducts the reputation of the Service would be adversely affected if he were to remain a member.

Overall, we are satisfied that the Hearing Officer provided a well-written and reasoned decision. We find that the Hearing Officer thoroughly considered the evidence, properly exercised his discretion, and carried out his duties as one would expect from a lay tribunal. He outlined at some length his rationale and provided an overview of the evidence on which he relied. He summarized the process by which he arrived at his conclusions. There is no clear error of the type and nature that would warrant interfering with his conclusions.

Therefore, we dismiss the appeal and uphold the original penalty of resignation or dismissal within 7 days.

DATED AT TORONTO THIS 28TH DAY OF SEPTEMBER 2006.

Murray W Chitra

Sylvia Hudson

Hyacinthe Miller

Chair, OCCPS

Vice Chair, OCCPS

Member, OCCPS