Ontario Civilian Commission on Police Services
OCCPS #07-16
Reasons for Decision
Constable Nathan Parker Appellant
Niagara Regional Police Service Respondent
Presiding Members: Noëlle Caloren, Member Biagio (Bill) Marra, Member
Appearances: David Pickering, Counsel for the Appellant Woodward B. McKaig, Counsel for the Respondent
Hearing Date: Wednesday May 9, 2007
This is an appeal from two convictions for misconduct made against Constable Nathan Parker on June 9, 2006 by Superintendent Damian Parrent (the "Hearing Officer").
The Hearing Officer found that Constable Parker had used unnecessary force against a prisoner contrary to section 2(1)(g)(ii) of O. Reg. 123/98 (the "Code"). The Hearing Officer also found that Constable Parker had neglected his duty by failing to report a matter, contrary to section 2(1)(c)(v) of the Code.
Penalty is not at issue in this appeal.
Background:
Constable Parker is forty years old. He has been a member of the Niagara
Regional Police Service (the "Service") for seventeen years.
On June 11, 2005, a thirteen year old male notified the Service that a group of youths, one with a knife, had robbed him. A description was broadcast to police units in the area.
Constable Parker was on duty that evening working out of 11 Division. At approximately 12:25 a.m., he and his partner, Constable Jay Wooley, were
driving down Hartzel Road, approaching the intersection of Burness Drive. They observed a group of five young men, fitting the description of the robbery suspects.
The officers pulled up alongside the young men and Constable Wooley ordered them to stop. They were told that they were under arrest for robbery and were directed to sit down. Four of the young men complied, but the fifth, AB1, challenged Constable Parker, and refused to follow the directions given.
Constable Parker issued further instructions to AB. AB again refused to comply, and responded to Constable Parker using street slang. Constable Parker then gave AB between one to three slaps about the head ("open hand distraction techniques"). AB spun around and fell to the ground. A struggle ensued.
At this point the parties' versions of events diverge.
Constable Parker states that he took out his canister of oleoresin capsicum aerosol spray ("pepper spray"), extended his arm and applied a short burst to the left side of AB's head while AB was on his hands and knees.
Constable Parker states that this resulted in immediate compliance. Constable Parker further states that he handcuffed AB, helped him stand, searched him, seized a knife and then placed him in the rear of the police cruiser. Constable Parker then shut the cruiser door, and called for backup.
AB's version is very different. AB states that Constable Parker continued to hit him and he had to keep his hands up to shield himself. AB states that despite his efforts to protect himself, he eventually was handcuffed. He was then lifted up off the ground by Constable Parker and dropped more than once while being hauled to the police cruiser.
AB states that after placing him in the rear of the cruiser, Constable Parker got into the vehicle and pepper sprayed him, while asking: "Are you ever going to say Yo to me again you piece of shit?"
A number of officers arrived at the scene. All the other young men were handcuffed. AB was taken to the police station and searched. Booking officers removed a folding buck knife from AB's front right pants' pocket and he was charged with possession of a prohibited weapon.
Following AB's booking, both Constables Parker and Wooley did their paperwork. Constable Parker noted his use of open hand strikes against AB in his Arrest Report but made no mention of pepper spray. Constable Parker did not
complete a Use of Force Report.
Constable Parker's shift finished at approximately 6:00 a.m. He then took four scheduled days off.
On June 13, 2005 AB filed a public complaint against Constable Parker.
When Constable Parker returned to work on June 15, 2005 he was advised of this complaint by Detective Sergeant Chartier. At the direction of Sergeant Mackay, Constable Parker prepared and filed a Use of Force Report.
On September 29, 2005 Constable Parker was charged with two counts of misconduct. The first count was for unnecessary force. The Statement of Particulars read:
It is alleged that Constable PARKER utilized Oleoresin Capsicum aerosol spray against AB, after he had arrested AB and placed him in handcuffs.
The second count was for neglect of duty. The Statement of Particulars read: It is alleged that Constable PARKER neglected to submit an
occurrence report or Use of Force Report in relation to his use of Oleoresin Capsicum aerosol spray, as required by Niagara Regional Police Service General Order 053.06 (Use of Force).
Constable Parker pled not guilty to both disciplinary charges.
The Hearing:
The hearing took place over the course of four days in May of 2006. The
Hearing Officer heard testimony from fifteen witnesses. Thirty-nine exhibits were received.
The witnesses included AB, the four other young men arrested that evening, Constable Jay Wooley, Detective Sergeant Chartier and Staff Sergeant Ronald Peressotti. Constable Parker testified in his own defence.
Essentially, AB testified that Constable Parker pepper sprayed him while he was handcuffed and confined in the back of the police cruiser. Constable Parker acknowledged pepper spraying AB, but insists that this took place while he was struggling with an unrestrained AB outside of the cruiser.
Constable Parker acknowledged failing to mention the use of pepper spray in his Arrest Report or complete a Use of Force Report. However, he insisted that this was not a deliberate omission. Rather, he was on his last night shift, was tired and it escaped his mind.
The Hearing Officer issued his forty-two pages long Reasons for Decision on
June 9, 2006. He found Constable Parker guilty on both counts. It is these findings that are the subject of this appeal.
Appellant's Position:
Mr. Pickering, on behalf of Constable Parker, submitted that the issue to be decided on this appeal is whether or not there was clear and convincing evidence before the Hearing Officer to support findings of guilt.
Mr. Pickering submitted that the Hearing Officer held a negative bias towards Constable Parker; that he focused solely on the issue of Constable Parker's credibility; and, that he rejected or failed to take into consideration relevant material facts supportive of Constable Parker's version of events.
Mr. Pickering asked: If Constable Parker intended to conceal his use of pepper spray, why would he tell at least two of his colleagues that evening (his partner Constable Wooley and his supervisor, Staff Sergeant Peressotti) that he had used pepper spray in the course of arresting AB?
Mr. Pickering also submitted that the preponderance of evidence presented during the hearing supported Constable Parker's version of events.
The Hearing Officer came to the conclusion that only JD, had observed the struggle between Constable Parker and AB. Mr. Pickering argued that JD's testimony was filled with inconsistencies, and established that JD never had a clear, uninterrupted view of the struggle between Constable Parker and AB. Mr. Pickering urged us not to rely on the evidence of any of the other four youths.
Mr. Pickering argued that the Hearing Officer should have found that it was unlikely pepper spray was applied to AB after he was handcuffed and placed in the cruiser given the evidence of Constables Wooley and Conroy. He argued that these officers had an unobstructed view and did not see Constable Parker apply pepper spray to AB in the cruiser.
Mr. Pickering also submitted that the Hearing Officer should have found that it was highly unlikely pepper spray had been applied in the cruiser given there was no evidence of any post-application smell or other related after effects noticed when it was driven to the station.
In respect of the Arrest Report and Use of Force Report, Mr. Pickering argued that there was no evidence establishing willfulness or a degree of neglect by Constable Parker that would elevate this matter from a performance consideration to an issue of misconduct.
It was Mr. Pickering's position that the Hearing Officer failed to consider whether the defenses of inadvertence or honest mistake applied in the circumstances.
In support of his various arguments, Mr. Pickering drew our attention to Sterling and Hamilton-Wentworth Police Service (1999), 3 O.P.R. 1356 (O.C.C.P.S.), Geske and Hamilton Police Service (July 3, 2003, O.C.C.P.S.) and Allan v. Munroe (July 27, 1994, Ont. Bd. Inq.).
On behalf of Constable Parker, Mr. Pickering requested that the Hearing Officer's findings of guilt be set aside.
Respondent's Position:
Mr. Woodward McKaig, counsel for the Respondent Service, reminded us of our role in appeals.
In particular he drew our attention to Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Carmichael and Ontario Provincial Police (1998), 3 O.P.R. 1232 (O.C.C.P.S.), Groat and Quinte West Police Service (2001), 3 O.P.R. 1513 (O.C.C.P.S.) Besco and Peel Regional Police Service (2001), 3 O.P.R. 1496 (O.C.C.P.S.) and Dingman and Ontario Provincial Police and Jardine (September 16, 2003, O.C.C.P.S.).
Mr. McKaig submitted that the fundamental question before us is whether the conclusions of the Hearing Officer were void of evidentiary foundation. He asserted that this was not the case.
Further,
- There has not been a manifest error of principle;
- Evidence was not ignored or misunderstood; and
- There were no erroneous conclusions drawn from the evidence.
Mr. McKaig argued that there was more than sufficient testimony to support the Hearing Officer's findings as to how and when the pepper spray was administered, i.e. against a handcuffed prisoner confined in the back of a police cruiser.
He asserted that this was clearly an unnecessary use of force.
Further, he noted that the Hearing Officer identified the relevant legal principles, considered and applied the appropriate case law and undertook an extensive review of the evidence.
It was Mr. McKaig's submission that given the totality of the evidence, the
Hearing Officer properly accepted AB's version of events. Mr. McKaig noted that
Constable Parker's testimony was often contradictory and thus properly gave rise to concerns about his credibility.
On the charge of neglect of duty, Mr. McKaig argued that to be convicted of such an allegation, it must be shown on clear and convincing evidence that a duty existed. It then must be established that the officer either failed to perform that duty because of neglect, or did not perform the duty in a prompt or diligent manner.
Mr. McKaig observed that officers had a clear duty to report the use of pepper spray and complete a Use of Force Report. On this point, Mr. McKaig referred us to R.R.O. 1990, Reg. 926 as amended and Service General Order 0536.06.
There is no question that Constable Parker did not perform this duty.
However, Mr. McKaig noted that neglect of duty is not an absolute offence. The law is clear that there must be either willfulness or a degree of neglect that would cross the line from mere performance considerations to a matter of misconduct.
Mr. McKaig agreed that the Hearing Officer must consider whether the situation reasonably could give rise to a defense of inadvertence or honest mistake, including whether the information in question was such that it could reasonably be forgotten, ignored or misunderstood. On this point Mr. McKaig noted the Commission's decision in Gottschalk and Toronto Police Service (January 29,
2003, O.C.C.P.S.).
Mr. McKaig submitted that this case turned on the Hearing Officer's findings regarding credibility, and that there is a very fine line between 'forgetting something' and 'not doing something'. He argued that Constable Parker's testimony that he 'forgot' to complete the required reports required was beyond belief.
Mr. McKaig reminded us that Constable Parker also had the opportunity to document the use of pepper spray in his Arrest Report, or even his own
notebook, as he did with all of the other information concerning the incident, such as his use of the open hand techniques. He did not do so.
Further, Constable Parker only recorded his application of pepper spray and filed a Use of Force Report after a complaint was filed and he was questioned by Detective Sergeant Chartier and was directed to do so by Sergeant Mackay.
Mr. McKaig contended that the fact in question (that Constable Parker used pepper spray on AB) was not the sort of information that can be reasonably forgotten or ignored or even misunderstood, when required reports were to be completed within hours of the incident. Further, he observed that Constable Parker underwent Use of Force Training just three days prior to the incident.
Mr. McKaig argued that the facts in this case clearly crossed the line from a mere performance consideration to a matter of misconduct.
Mr. McKaig drew the inference that the omission to report the use of pepper spray against AB was a deliberate attempt by Constable Parker to conceal his actions.
For the above noted reasons, Mr. McKaig asked that both appeals against convictions be dismissed.
Decision:
Williams and the Ontario Provincial Police supra., is the leading authority on the nature of the Commission's appellate powers. It states that the Commission will only interfere with a Hearing Officer's decision where it finds that the decision is void of evidentiary foundation or cannot be reasonably accepted.
The decision being appealed from turned primarily on credibility. AB says he was pepper sprayed while handcuffed and confined in the rear of the cruiser. Constable Parker says he pepper sprayed AB in the course of a struggle outside the cruiser.
In Besco and Peel Regional Police Service supra., at pages 5 to 6, the
Commission stated:
Matters of credibility and findings of fact are clearly within the Hearing Officer's domain. Only in exceptional cases where the reasoning is self-evidently wrong, contains clear error or cannot be reasonably accepted, will the Commission interfere with conclusions made by the Hearing Officer on such matters.
In Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 (B.C.C.A.) Mr. Justice
O'Halloran wrote the following about findings of credibility:
… in short, the real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions …
How do these principles apply to the facts of this case?
Unlawful or Unnecessary Exercise of Authority
Section 2(1)(g)(ii) of the Code makes it a disciplinary offence for an officer to use "any unnecessary force against a prisoner or other person contacted in the execution of duty".
During four days of testimony, the Hearing Officer heard from fifteen witnesses and received thirty-nine exhibits. This included virtually every individual present on the evening of June 11, 2005.
The testimony of the witnesses was tested in cross-examination. The Hearing Officer drew inferences and made findings of fact based on his assessment of all of the evidence before him.
The Hearing Officer's Reasons for Decision are forty-two pages long. They include a careful review of the testimony of each witness, in both examination-in- chief and cross-examination, and of the submissions of counsel for Constable Parker and the Service.
The Hearing Officer's core findings are set out at pages 41 to 42 of his Reasons for Decision, and read as follows:
Constable Parker's testimony has been either misleading, inconsistent or untruthful on several occasions in this Hearing. His evidence with regard to the comment made to D/Sergeant Chartier, the positioning of the four (4) accomplices of AB during his struggle with AB, the finding of the knife on AB at the scene of the arrest, Constable Parker's conversation with AB in the police cruiser and how AB got into the police cruiser.
The matters that I have just enunciated are not the most key aspects of this Hearing. If I find that Constable Parker's testimony has been either misleading, inconsistent or untruthful on these matters, it opens to doubt his testimony on key issues in this Hearing. I find that his version of the application of pepper spray on AB is not clear and convincing.
AB, in his complaint about his arrest by Constable Parker, complained about being beaten, handcuffed, dropped and pepper sprayed when placed in the back of the police cruiser. AB stuck by his version of the incident in his dealings with the Professional Standards Unit, and during his examination-in-chief and his cross- examination.
In his representation on case law, Mr. Simpson drew attention to paragraph 15, page 3 of the R. v. Gostick decision, that the proper
approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation.
I have done this and I find that, based on the totality of AB's evidence, the evidence of other witnesses, sworn and civilian, and the misleading, inconsistent or untruthful testimony of Constable Parker, that the evidence is clear and convincing that Constable Parker administered pepper spray to AB while handcuffed in the rear of his police cruiser and is therefore guilty of one count of Unlawful or Unnecessary Exercise of Authority.
The Hearing Officer's decision focused carefully on the evidence before him relevant to the crucial issue of when Constable Parker administered pepper spray to AB: before AB was handcuffed and placed in the police cruiser, or after AB was handcuffed and placed in the police cruiser?
The Hearing Officer found that Constable Wooley, Constable Parker's partner on that shift, did not see pepper spray administered, and was not aware that pepper spray had been used at all until much later in the shift.
The Hearing Officer also carefully considered the evidence of Constable Parker and AB. As is quoted above, after considering their testimony in light of all of the other evidence before him, the Hearing Officer found that he preferred the
version of events of AB to that of Constable Parker.
This was a conclusion open to the Hearing Officer. It was not reached solely on an assessment of demeanor. Rather, it flowed from an analysis of the testimony of numerous witnesses and ultimately resulted in findings that Constable Parker's evidence on several aspects of the events of June 11, 2005 was misleading inconsistent or untruthful.
In our view the Hearing Officer's finding regarding Constable Parker's credibility is supported in the evidence. By way of example, it was Constable Parker's evidence that before placing AB in the cruiser he searched him and found a knife. In contrast, Special Constable Lafferty testified that he found the knife
when he booked AB at the police station. He made a notation to this effect in his notebook and on the prisoner log. Constable Wooley and AB also testified that a knife was found when AB was searched during booking.
It is not the role of this Commission on appeal to re-weigh the evidence before the Hearing Officer. Rather, as noted earlier it is our function to assess whether the decision of the hearing officer is void of evidentiary foundation or cannot be reasonably accepted. That is not the case here.
We cannot find that in coming to his conclusion with respect to credibility that the
Hearing Officer made any manifest errors, ignored conclusive or relevant
evidence or misunderstood the evidence, or drew erroneous conclusions from the evidence. On the contrary, the Hearing Officer carefully considered and weighed the evidence before him.
For these reasons we see no error in the findings of the Hearing Officer with respect to the question of unnecessary use of force.
Neglect of Duty
The offence of neglect of duty is set out at section 2(1)(c)(v) of the Code. That provision makes it a misconduct when an officer "fails to report a matter that it is his or her duty to report".
In the case Hewitt and Devine and Toronto Police Service (1999), 3 O.P.R. 1372 (O.C.C.P.S.) at page 1375 the Commission describes a two-part test to obtain a conviction for neglect of duty:
… the member is required to perform a duty, and the member failed to perform this duty because of neglect, or did not perform the duty in a prompt or diligent manner. Once proven, the member, to avoid discipline, must show that the member had a lawful excuse for not performing the duty in a prescribed manner.
It is also clear that there must be willfulness or a degree of neglect which would make the conduct in question cross the line from a mere performance consideration, to a matter of misconduct.
Police officers have a duty to report any use of force. Section 14.5 of R.R.O.
1990, Reg. 926 as amended states:
14.5 (1) A member of a police force shall submit a report to the chief of police or Commissioner whenever the member,
(a) draws a handgun in the presence of a member of the public, excluding a member of the police force while on duty, or discharges a firearm;
(b) uses a weapon other than a firearm on another person;
or
(c) uses physical force on another person that results in an injury requiring medical attention.
(2) The report shall be in Form 1.
This legal requirement is reinforced by Service rules and directives. Specifically, Service General Order, 053.06 at sections 7.2(c), 7.3 and 7.4 state:
7.2 A member is required to submit a report, in the manner prescribed, whenever the member …
(c) uses Oleoresin Capsicum aerosol spray on another person;
7.3 In all instances, as identified in Section 7.2, members shall submit a completed Ministry of Community Safety and Correctional Services Use of Force Report, as soon as possible, to their immediate Supervisor.
7.4 In all instances, as identified in Section 7.2, … members shall notify their immediate Supervisor as soon as practicable and shall complete a General Incident Report noting the circumstances regarding the use of that force.
Constable Parker clearly did not meet this requirement.
On June 11, 2005 Constable Parker noted his use of open hand distraction techniques against AB in both his duty book and Arrest Report. However, he made no mention of his use of pepper spray in either.
Further, Constable Parker did not complete the required Use of Force Report in a timely manner. Rather, he completed this form a number of days later, after speaking with Detective Sergeant Chartier and being directed to do so by his Sergeant Mackay.
On page 16 of his Reasons for Decision, the Hearing Officer noted:
Constable Parker makes no mention in his arrest reports (exhibit
#16) nor in his notebook, (exhibit #20, pages 24-25) of the use of
pepper spray against AB. I cannot comprehend that an officer of
16-years experience, who has had a struggle with an accused, causing injury to that party and necessitating the use of pepper spray to assist in subduing that party, would not make mention of that fact, while writing about the use of open hand strikes in the arrest report. It would have taken the addition of one (1) more sentence. This use of force is detailed at the beginning of the report, not at the end. On many instances where an accused sustains injury, there is often a Public Complaint and/or a civil suit laid. The addition of that fact would have been assistive to investigators that may have been following up on those matters.
When questioned by Mr. Simpson about the lack of reference to his pepper spray use, he stated that the inclusion of open hand strikes in his report were necessary, because it was indicative of the demeanour of the individual. Constable Parker stated that there
was no reference to pepper spray because it was his last night shift and it escaped his mind, because he was tired that evening. Considering that he has used it so infrequently in his 16-year career, one would assume its use would stand out in his mind and be mentioned in reports.
These certainly appear to be reasonable observations.
Further, the record established that Constable Parker should have been well aware of the sorts of reports to be completed after such incidents. During his career, he has participated in over one hundred and sixty training courses. Indeed, just three days prior to the incident Constable Parker completed use of force training.
The Hearing Officer reached the conclusion that Constable Parker's failure to note the use of pepper spray or promptly complete the mandatory Use of Force Report was not an innocent error or omission. Rather as he stated at page 42 of his Reasons for Decision:
I do not believe that Constable Parker's act of omission was one of a performance consideration. Knowing that he had improperly used his pepper spray, he had no intention of reporting it until confronted by D/Sergeant Chartier. In his notes (exhibit #20) Constable Parker references that AB was also being charged for resisting arrest. Had pepper spray been applied as Constable
Parker testified, then there should have been reference to this in his notebook, statements and General Incident/Arrest Report. There was not.
Therefore, I find on clear and convincing evidence that his failure to complete a Ministry Use of Force report and his failure to notarize his application of pepper spray on the general incident/arrest report was Neglect of Duty and find him guilty of that count as charged.
This was a conclusion available to the Hearing Officer.
It was certainly open to him to find that the failure to mention the use of pepper spray in two official documents (note book and Arrest Report) or complete a third mandatory Report, was indicative of more than mere inadvertence.
Given the above, we agree with the finding of the Hearing Officer that this is a case in which the line was crossed from that of a performance consideration to a matter of misconduct.
We are satisfied that the Hearing Officer did not make any manifest errors, ignore conclusive or relevant evidence, misunderstand the evidence or draw erroneous conclusions from the evidence presented to him regarding this conviction as well.
Overall, we are satisfied that the Hearing Officer's findings of guilt on both charges against Constable Parker are supported by the evidence and are reasonable.
As a result, Constable Parker's appeal from his convictions for unlawful or unnecessary exercise of authority and neglect of duty is dismissed.
DATED AT TORONTO THIS 6TH DAY OF NOVEMBER, 2007.
Noëlle Caloren Biagio (Bill) Marra
Member, OCCPS Member, OCCPS