OCCPS #06-09
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
SERGEANT DALTON BROWN
Appellant
ONTARIO PROVINCIAL POLICE
Respondent
Presiding Members:
Murray W. Chitra, Chair
Noëlle Caloren, Member
Appearances:
Lorna E. Boyd, Counsel for Sergeant Dalton Brown
Jinan Kubursi, Counsel for Ontario Provincial Police
Hearing Date: September 28, 2006
This is an appeal from a finding of guilt for one count of neglect of duty contrary to section 2(1)(c)(ii) of the Code of Conduct found at Ontario Regulation 123/98 (the “Code”) made against Sergeant Dalton Brown by retired Superintendent Alan Griffiths (the “Hearing Officer”) on November 15, 2004.
Penalty is not at issue.
Background:
Sergeant Dalton Brown has been employed by the Ontario Provincial Police
(“OPP”) for twenty-nine years.
At the time of the events in question, he was the Lead Collision Reconstructionist and Program Manager for Technical Traffic Collision Investigations (“TTCI’s”) for the Northeast Region of the OPP. He was also the Unit Commander of the Region’s Commercial Vehicle Enforcement Unit.
His immediate supervisor was Inspector J. H. McDonnell who was Commander of the Region’s Traffic and Marine Unit.
Sergeant Brown’s responsibilities included organizing an annual training seminar for the Region’s TTCI investigators. The seminar for 2003 was scheduled for
Monday, May 26 to Friday, May 30 in North Bay, Ontario. Over a hundred officers were required to attend.
Part of that year’s program consisted of ‘airborne’ testing. This involved launching a test vehicle into the air in controlled circumstances to permit the study of the resulting damage.
Of necessity ‘airborne’ testing requires the use of vaulting ramps to launch a car. At the time, the OPP did not own such ramps. However, the Canadian Police College in Ottawa has a set and Sergeant Brown made arrangements to borrow them.
On Tuesday, May 27, 2003 Sergeant Brown was a guest speaker at the College. Following his lecture he picked up the ramps using an OPP vehicle and transported them to North Bay to the local airport where they were to be set up. The understanding was that they would be returned to Ottawa on Friday.
That week, Sergeant Brown finished his scheduled shifts on Thursday, May 29th. However, he was the ‘on call’ Traffic Sergeant for the Region until Monday morning.
The training seminar concluded on the morning of Friday, May 30th. Despite the fact that it was his day off, Sergeant Brown picked up the ramps in North Bay using an OPP vehicle and started back to Ottawa. He was dressed in casual clothes and did not have his service revolver.
Sergeant Brown had the vehicle’s radio turned on and tuned to the Simplex channel. He was not logged on with dispatch. This was in accordance with OPP Policy given that he was ‘off duty’. He had his OPP cell phone and pager with him.
At 1110 hours there was a report to the Provincial Communications Centre (the “Centre”) in North Bay of a serious motor vehicle accident at Richard’s Landing on Saint Joseph’s Island near Sault Ste. Marie. At 1205 hours the presence of a traffic accident investigator and recontructionist was requested.
Joseph Bourdon, the Centre’s ‘on duty’ Communications Sergeant telephoned Dalton Brown at his cell number at 1208 hours as the ‘on call’ Traffic Sergeant. There was no answer, so Sergeant Bourdon left a message that there had been an accident and that they needed to speak. He also left a page.
About this time, Sergeant Brown was on Highway 17 near Mattawa travelling towards Ottawa. He crossed the boundary for the Northeast Region and entered the OPP’s Eastern Region.
At 1223 hours Sergeant Brown was involved in a collision with another vehicle in a construction zone near Tower Trail Road. After he was satisfied that no one was seriously hurt Sergeant Brown contacted the Centre on his radio at 1224 hours using the Simplex channel. He advised the dispatcher that he had been
involved in a motor vehicle accident and requested that a supervisor be sent. The dispatcher made the necessary arrangements, but did not bring the situation to the attention of Communications Sergeant Bourdon.
In the meanwhile, Sergeant Bourdon, not having received a return phone call from Sergeant Brown and not being aware of his accident, spoke at 1230 hours to Inspector McDonnell who was at the Centre working as Regional Duty Officer. Inspector McDonnell advised him that most of the Region’s TTCI investigators were at a seminar in North Bay and were probably on their way home. Sergeant Bourdon checked at 1245 hours to see if any were logged on. None were.
Sergeant Bourdon tried to contact Sergeant Brown by phone again at 1300 hours and left him another message. At 1320 hours he phoned the residence of the TTCI investigator living closest to Richard’s Landing to see if he had made it home yet. There was no answer.
In the meanwhile Sergeant Brown called his wife, Donna, using his cell phone. She is an Inspector with the OPP. Sergeant Brown wanted to let her know that he had been in an accident but was all right.
At 1323 hours Sergeant Bourdon was informed by a dispatcher that there had been an accident reported in the OPP’s Eastern Region involving a Northeast Region officer. One minute later Sergeant Brown phoned in using his cell phone. The two sergeants spoke.
Sergeant Brown asked if Sergeant Bourdon had heard about his accident. Sergeant Bourdon indicated that he had not. The two then discussed the situation at Richard’s Landing. Sergeant Brown indicated that there were three officers returning from the seminar who were available to go there.
The conversation then returned to Sergeant Brown’s accident: Bourdon: Have you talked to the Inspector yet?
Brown: No.
Bourdon: Okay, I’ll let him know.
Brown: Yeah, if you wouldn’t mind letting him know, everything’s fine
here, no injuries, tow truck just showed up, there’s one officer here already and there’s an NCO on the way; they’re suppose to be here shortly …
Sergeant Bourdon subsequently conveyed this information to Inspector
McDonnell.
Later that afternoon Inspector Brown phoned Inspector McDonnell at the Centre. She left a message with both the receptionist and on his cell phone. Inspector Brown wanted to speak to Inspector McDonnell about a TRU incident that had occurred the prior evening and let him know that she would be picking her husband up (his OPP vehicle was inoperable) and taking him home. Sergeant Bourdon returned this call on Inspector McDonnell’s behalf at 1530 hours.
As well, at 1705 hours Inspector McDonnell received a voice message from Staff Sergeant Penny Baranger. It was to the effect that Sergeant Brown had been in an accident, there had been minor injuries, the matter had been investigated and that Sergeant Brown had been charged with Following Too Close, contrary to the Highway Traffic Act. Inspector McDonnell called Chief Superintendent Carson Fougere, the Regional Commander at his home and left a message with this information.
The following Monday at 0631 hours Sergeant Brown sent Inspector McDonnell an e-mail detailing his activities from May 26th. It included a description of his accident on Friday and the fact that he had been charged with the offence of Following Too Close. That charge was later withdrawn by the Crown.
As a result of the above on October 27, 2003, Sergeant Brown was charged with neglect of duty. The specific allegation was:
On May 30, 2003 you were on call and did not notify the PCC Supervisor that you would be out of the Region for several hours and were unavailable to attend any serious traffic related incidents in the Northeast Region and further that while you were outside the Region in a Force vehicle you were involved in a motor vehicle collision and failed to report the collision to your Supervisor in a timely manner as required by Police Orders, section 6.16.10.
Sergeant Brown pled not guilty.
The Hearing:
The hearing took place over the course of four days in September of 2004. Seven witnesses testified. They included Sergeant Bourdon, Inspector McDonnell, retired Chief Superintendent Fougere, Inspector Brown and Sergeant Brown. Over thirty exhibits were received.
Sergeant Bourdon testified about the various telephone calls and conversations that he had on May 30th. This included the phone calls and pages to Sergeant Brown. He indicated that he had not attempted to contact Sergeant Brown over the Simplex channel. He testified that in hindsight, it might have expedited things, but he did not think of it at the time.
He stated that he was not advised by dispatch of Sergeant Brown’s accident and that he should have been. He indicated that he was surprised when he heard about it from Sergeant Brown directly.
He testified that after he spoke to Sergeant Brown the necessary TTCI
specialists were directed to Richard’s Landing. He also confirmed that he
promptly advised Inspector McDonnell: “That Sergeant Brown had been involved in an accident; there were no injuries; it involved a force vehicle; and that it was - the location was in the East Region on Highway Seventeen (17).”1
Sergeant Bourdon was asked what the practice was when duty officers left the
Region. He responded:
A. Well, most --- most of the duty officers that I’ve ever dealt with in my three-and-a-half years at the operations centre are very aware
of their responsibilities as duty officer, and are very conscientious in making sure that I’m aware of where they are.
Q. All right. And when a person’s going out of the region, when you say that they’re very conscious of making you know where they are, well, what, if anything, do they do to make sure you know where they area [sic]?
A. Well, they certainly would advise me of contact numbers where they might be reached at, and certainly provide me with the assurance that they will be checking in periodically with me, if they know that they’re not - or if they’re going to be predisposed with obligations … That they will check in with me to see if there’s
anything that’s - that I have for them.2
Inspector McDonnell testified that there was no formal policy in place in the
Northeast Region outlining the duties of ‘on call’ Traffic Sergeants.
Inspector McDonnell stated however, that this role had been discussed at various staff meetings where Sergeant Brown was present. Essentially, ‘on call’ status was an unpaid and voluntary responsibility that rotated amongst sergeants on a weekly basis.
The ‘on call’ Traffic Sergeant was required to carry a cell phone and pager and be available 24 hours a day to assist both the Communications Sergeant and Regional Duty Officer with advice, and if necessary, to coordinate the resources required to respond to serious motor vehicle collisions. This did not include personal attendance at an accident scene.
Inspector McDonnell went on to say that it was both standard procedure and his expectation that any ‘on call’ Traffic Sergeant who was going to be leaving the Region would notify both him as Commander of the Unit and the Communications Sergeant.
Inspector McDonnell testified that on the day in question he was not aware that Sergeant Brown was out of the Region. He stated that “I believed that he was … at the seminar” 3and “subsequently learned, to my surprise that, that he was out of the region, and had been involved in a collision …” 4He further testified that he did not recall any conversations with Sergeant Brown about ramps and the Canadian Police College.
On the matter of Sergeant Brown’s accident, Inspector McDonnell referred to
OPP Policy 6.16.10 which states “when an OPP vehicle is involved in a collision
… the vehicle operator shall forthwith notify … the operator’s supervisor.” He testified that he was aware of Sergeant Brown’s accident from various sources but did not hear from him personally until receiving the e-mail on Monday. He indicated that it was his view that the Policy required timely personal notification.
Inspector Brown testified about the condition of her husband on the day in question. She stated that when she picked him up she found that he was “spacey”, “a little glazed” and “almost in shock”. She testified about her efforts to contact Inspector McDonnell. She also indicated that it was her understanding that OPP Policy 6.16.10 does not require personal notification of a supervisor. Rather, in her experience, any notification must proceed through the ‘chain of command’.
Sergeant Brown testified about the steps that he took to organize the training seminar. He indicated that he had regularly briefed Inspector McDonnell about his actions, including arranging for the ramps to be borrowed from the Canadian Police College. Some of these discussions concerned the need to confirm insurance coverage in the event that the ‘vaulted cars’ caused damage to the runway in North Bay.
Sergeant Brown testified that he was not aware of a Policy or practice requiring an ‘on call’ Traffic Sergeant to notify anyone when he or she was leaving the Region. In any event, he stated that it did not even occur to him that such a call was necessary because Inspector McDonnell “already knew I was going because he had already approved it.”5
He indicated that on May 30th both his cell phone and pager were on and fully charged. At all times he was ready, willing and able to perform his duties as ‘on
call’ Traffic Sergeant. He testified that in a Region as large as the Northeast it was not unusual for communications to be delayed.
Sergeant Brown testified that immediately after his accident he contacted the Centre. It was his expectation that this information would be relayed to both the Communications Sergeant and Inspector McDonnell as Regional Duty Officer. Further, he returned Sergeant Bourdon’s call as soon as he was aware of it and able to do so. He then took all necessary steps to coordinate the resources to respond to the collision at Richard’s Landing.
The Hearing Officer delivered his judgment on November 15, 2004. In his decision he identified the allegations and summarized both the evidence and submissions.
His analysis and conclusion was as follows:
In regards to the evidence placed before the Tribunal pertaining to the charges faced by Sergeant Dalton Brown. I have reviewed my notes carefully and studied all exhibits submitted. I reviewed the evidence given by Sergeant Bourdon and Inspector McDonnell which appeared quite clear and concise to the facts in issue.
I found the evidence given by Inspector Donna Brown was confusing. Was she speaking as a concerned spouse or a Senior Officer of the Ontario Provincial Police Force? I heard considerable evidence about ramps and damage to the airport runway, this was of limited value in assisting to clarify the situation. Sergeant Brown insists that he was available to perform the “On Call” function and that he did complete the “duty report”, though late.
In regards to Charge number one, Inspector McDonnell was Sergeant Brown’s supervisor in two senses, in his regular duties he reported directly to the Inspector, on his “on call” duties he again reported directly to Inspector McDonnell, who was also the “on call” Duty Officer. There was a requirement for Sgt Brown to report to his supervisor.
On the Charge of “Neglect of Duty” I find that the facts provide clear and convincing evidence that substantiate the allegations as noted in the Notice of Hearing and find you GUILTY of the charge.
It is this decision that is the subject of this appeal.
Appellant’s Position:
Ms. Boyd, on behalf of Sergeant Brown, challenged the Hearing Officer’s conclusions. She asserted that the finding of guilt was improper due to numerous errors, oversights and misinterpretations of the evidence.
Ms. Boyd argued that the conclusions of the Hearing Officer were void of the necessary evidentiary foundation to support a conviction based on ‘clear and convincing evidence’. Williams and Ontario Provincial Police (1995), 2 O.P.R.
1047 (O.C.C.P.S.), Bettes and Peel Regional Police (1996), 2 P.L.R. 395 (O.C.C.P.S.) and Favretto and Ontario Provincial Police (2002), 3 O.P.R. 1540 (O.C.C.P.S.)
Specifically, Ms. Boyd asserted that the Hearing Officer failed to understand that Sergeant Brown was available to perform his ‘on call’ duties on May 30th and that any delays were not of his making. As such, while his response may not have been perfect, he did perform his assigned task. Further, his supervisor was
aware that he was to be away from the Region. Blowes-Aybar and Toronto Police Service (28 February, 2003, O.C.C.P.S.) and P.G. v. Ontario (Attorney- General) [1996] O.J. N. 1298 (Ont. Div. Ct.)
Ms. Boyd argued that the facts of this case do not contain the necessary elements identified in previous Commission decisions to support a conviction for neglect of duty. On this point she drew our attention to Soley and Ontario Provincial Police (1996), 3 O.P.R. 1098 (O.C.C.P.S.), Hewitt and Devine and Toronto Police Service (1999), 3 O.P.R. 1372 (O.C.C.P.S.), Humphries and Kelly and Durham Regional Police Service (26 August, 2003, O.C.C.P.S.) and Geske and Hamilton Police Service (3 July, 2003, O.C.C.P.S.).
Ms. Boyd asserted that in order to find an officer guilty of neglect of duty it is necessary to establish that there was a clear requirement that has not been met. In the case at hand she argued that there was no explicit expectation of notification prior to leaving the Region or direct reporting of an accident. Bender and LeClair and Windsor Police Service (2000), 3 O.P.R. 1392 (O.C.C.P.S.)
Ms. Boyd argued that the decision of the Hearing Officer hinged largely on credibility. As such, the Hearing Officer was required to set out cogent reasons
as to why he believed or did not believe testimony. She cited several examples of conflicting evidence. She asserted that the Hearing Officer’s comments with respect to the testimony of Inspector Brown were inappropriate, offensive, degrading and sexist.
Ms. Boyd also suggested that the facts of this case disclosed negligence on the part of Centre staff (i.e. failure to pass on information about the crash or attempt radio contact on the Simplex channel). She argued that these failures should not be attributed to Sergeant Brown.
Also, she asserted that the decision did not contain sufficient reasons or a clear description of how the Hearing Officer arrived at his conclusions. As such, it failed to provide Sergeant Brown with basic procedural fairness. Stitt and York Regional Police Service (1997), 3 O.P.R. 1130 (O.C.C.P.S.)
In conclusion, Ms. Boyd requested that we allow this appeal and overturn the conviction.
Respondent’s Position:
Ms. Kubursi, on behalf of the OPP argued that the judgment of the Hearing
Officer should stand.
She asserted that the Hearing Officer fairly and impartially decided the matters before him, properly considered all relevant matters and provided comprehensive written reasons.
Ms. Kubursi reminded us of the standard of review articulated in Williams and Ontario Provincial Police. As well, she noted that the Commission has indicated on more than one occasion that Hearing Officers are in a better position to assess credibility. Cate and Peel Regional Police Service (2002), 3 O.P.R. 1604 (O.C.C.P.S.) and Bender and LeClair and Windsor Police Service
Ms. Kubursi pointed out that the test for neglect of duty was well understood. She drew our attention to Soley and Ontario Provincial Police, Gottschalk and Toronto Police Service (29 January, 2003, O.C.C.P.S.) and Hewitt and Devine and Toronto Police Service.
Ms. Kubursi asserted that the necessary elements to satisfy the test were met in this case. Specifically, the OPP had a well-established practice of requiring any officer to report to the Operations Centre when he or she was leaving the Region. The result of Sergeant Brown failing to do so was a delay of seventy-six minutes before a response was received. It was asserted that this length of delay raised a prima facie case of neglect. Harmer and Sarnia Police Service (1982), 2 O.P.R.
530 (O.P.C.)
Ms. Kubursi argued that the Hearing Officer had the necessary expertise to determine that the length of delay in this case was sufficiently serious to constitute neglect of duty. Fright and Hamilton-Wentworth Police Service (2002),
3 O.P.R. 1593 (O.C.C.P.S.)
In conclusion, she requested that this appeal be dismissed.
Decision:
Our function in a disciplinary appeal dealing with conviction is not to second- guess the findings of a hearing officer. Rather, it is to examine the reasons of that officer in light of the record to determine whether or not the conclusions are void
of evidentiary foundation, or the essential legal requirement or findings with respect to the credibility of witnesses cannot reasonably be accepted.
The case before us concerns a charge of neglect of duty. This is a serious allegation. Section 2(1)(c)(ii) of the Code states that an officer is guilty of neglect of duty if he or she “fails to work in accordance with orders, or leaves an area, detachment, detail or other place of duty, without due permission or sufficient cause.” This charge can be met in one of two ways.
It can be established by proving that an officer left an assigned work place or area or abandoned a task without authorization or good excuse. This requires proof that an officer had a designated work area or assigned detail and left it. An officer can avoid discipline if he or she can show that they had a reasonable belief that they had permission or other good excuse to leave.
The charge can also be met by proving that an officer has failed to comply with orders. The existence of such orders must be established. They can arise from a number of sources. These include policies, directives, standing orders or existing practices. Then it must be established that the officer failed to meet the requirements of the orders in question.
On the latter question, it is worth noting that neglect of duty is not an absolute liability offence. There must be either “willfulness” or a “degree of neglect which would make the matter cross the line from a mere performance consideration to a matter of misconduct.” See P.G. v. Attorney General of Ontario at para. 83. In
other words, mere failure to comply is not enough. There must be some evidence of deliberateness or recklessness.
The allegations against Sergeant Brown appear to contain two different elements. The first alleges that on May 30th, while ‘on call’ he “did not notify the PCC Supervisor that ... [he] would be out of the Region for several hours”. The allegation then went on to state that this meant that he was “unavailable to attend to any serious traffic related incidents in the Northeast Region”.
The second distinct element of the charge related to Sergeant Brown’s automobile accident. Specifically, that Sergeant Brown was involved in a car accident in an OPP vehicle “and failed to report the collision to … [his] Supervisor in a timely manner as required by Police Orders, section 6.16.10.”
Unfortunately, in his decision, the Hearing Officer failed to clearly distinguish these two distinct elements.
Leaving this aside, it is important to put these allegations in context. On May 30,
2003 Sergeant Brown was on a rest day. He was using his rest day to return property that he borrowed for a training seminar that he was tasked to organize.
Sergeant Brown was not ‘on duty’. As such, he was not assigned to work in a designated work area. He was not required to be ‘logged on’. Rather, Sergeant Brown was ‘on call’. This was described as an unpaid and voluntary responsibility. The expectations attaching to this task were not described in written orders.
It is agreed however, that ‘on call’ Traffic Sergeants were expected to carry a cell phone and pager and be available to provide expert advice, direction and coordination in the event of a serious accident in a timely manner. It is also agreed that this did not require personal attendance at accident scenes as suggested in the wording of the first distinct element of the Notice of Hearing.
On May 30th, 2003 Sergeant Brown had his cell phone and pager with him and they were both switched on. In addition, he had his OPP radio on and tuned to the Simplex channel. He was travelling in a thinly populated vast region, where it was acknowledged that communications were sometimes a challenge. Communications Sergeant Bourdon had both Sergeant Brown’s cell phone and pager number.
According to Sergeant Brown he was ready, willing and able to perform his ‘on call’ duties. He did in fact respond to Sergeant Bourdon’s calls concerning an accident at Richard’s Landing. However, this response was not immediate given delays in receiving messages, his accident and a failure to relay a Simplex communication. This delay however, is not at the heart of the first allegation against Sergeant Brown. Rather, it is his failure to notify the “PCC Supervisor” before he left the Region.
There is some question in our mind concerning who actually was the “PCC Supervisor” on May 30th. The record would appear to suggest that this was Sergeant Bourdon. He was the Shift Supervisor at the Provincial Communications Centre on the day in question. He was the ‘on duty’ Communications Sergeant. He was in charge of all communications staff.
However, in his reasons the Hearing Officer makes no finding with respect to Sergeant Bourdon or any failure to notify him. Rather, the Hearing Officer simply concluded that Sergeant Brown had a duty to notify Inspector McDonnell, both in his capacity as direct supervisor and ‘on call’ Duty Officer.
This finding was made in the face of a clear evidentiary dispute as to whether or not ‘on call’ Traffic Sergeant Brown had an unwritten responsibility to notify Inspector McDonnell prior to leaving the Region. Sergeant Brown said no.
Inspector McDonnell said yes. Sergeant Bourdon did not speak directly to this question.
The Hearing Officer’s reasons do not address this obvious evidentiary conflict on what is an essential prerequisite to the first allegation against Sergeant Brown as articulated in the Notice of Hearing. i.e. the existence of orders requiring notification prior to leaving the Region.
Leaving this aside, Sergeant Brown testified that he both notified Inspector McDonnell and had his permission to leave the Region. As such, he had a lawful excuse to act as he did. Inspector McDonnell testified that he had no notification and gave no such permission to Sergeant Brown. These starkly different versions of the facts gave rise to an obvious issue of credibility.
This fundamental issue of credibility is not mentioned by the Hearing Officer in his decision. His reasons fail to confront this essential question. As a result, the Hearing Officer’s path through the conflicting versions of what occurred is not evident.
The failure to address the competing views on the existence of a duty to notify or to make reasoned findings of credibility between Sergeant Brown and Inspector McDonnell are both errors. They go to the evidentiary foundation of the conviction, essential legal elements of the charge and key matters of credibility. As such, the Hearing Officer’s conclusions with respect to the first element of the allegation against Sergeant Brown cannot stand.
This brings us to the second element of the neglect of duty charge arising from Sergeant Brown’s accident. It is clear that a policy exists which requires all OPP officers who are in an accident in a Service vehicle to notify their supervisor “forthwith”. OPP Policy 6.16.10 constitutes “orders” within the meaning of section
2(1)(c)(ii) of the Code and imposes a duty that must be met.
The Policy does not direct how this notification is to take place. As such, it must be read in a reasonable manner.
The facts of this case relating to Sergeant Brown’s response are undisputed. He was in an accident at 1223 hours. Within one minute of his accident he was in contact with the Centre reporting what occurred. This was over a recorded OPP radio channel. His supervisor, Inspector McDonnell was ‘on duty’ at the Centre.
This information was not conveyed up the chain of command immediately as was both required and expected. However, within one hour of the accident, Sergeant Brown was in contact with Sergeant Bourdon over a recorded phone line. He requested that Sergeant Bourdon notify his supervisor, Inspector McDonnell, of his accident. This notification was made.
Over the course of that same afternoon Inspector McDonnell received information about the accident from two other sources. This included Inspector Brown and Staff Sergeant Penny Baranger.
Given the above, it is evident that Inspector McDonnell was advised three times on the afternoon of May 30th that Sergeant Brown had been in an accident in an OPP vehicle.
Further, it seems apparent that Inspector McDonnell had sufficient information that afternoon to meet his requirements. He advised various local officials, including the Regional Commander what had occurred. He did not feel the need to contact Sergeant Bourdon directly for further details.
On the clear facts of this case, it cannot be said that Sergeant Brown willfully failed to meet the requirements of OPP Policy 6.16.10. Notice was provided at the first reasonable opportunity (i.e. by radio at 1208 hours and again via Sergeant Bourdon one hour later). No factual foundation exists for a conviction on the second element of the allegation.
Given the above, the conviction imposed on Sergeant Brown on November 15,
2004 for neglect of duty cannot stand. This appeal is allowed and the conviction is revoked.
DATED AT TORONTO THIS 31st DAY OF OCTOBER 2006.
Murray W. Chitra Noëlle Caloren
Chair, OCCPS Member, OCCPS