OCCPS #07-01
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION - PENALTY
ROBERT ELLIOTT Appellant
CONSTABLE WAYNE KING Respondent
DURHAM REGIONAL POLICE SERVICE Respondent
Presiding Member: David Edwards, Member
Appearances: Sunil S. Mathai for the Appellant William R. MacKenzie for the Respondent Police Officer Staff Inspector Brian Fazackerley for the Respondent Police Service
Hearing Date: September 26, 2006
By Reasons for Decision dated December 8th, 2006 this Commission revoked the decision of retired Inspector Gregory C. Connolley (“Hearing Officer”) dated September 28, 2005 wherein the Hearing Officer dismissed the charge against Constable Wayne King that he committed misconduct on September 21st, 2002 when without good and sufficient cause he made an unlawful or unnecessary arrest contrary to section 2(1)(g)(i) of the Code of Conduct (the “Code”) from O. Reg. 123/1998 as amended, and substituted in its place a finding of guilt.
Counsel were invited to provide submissions in writing as to penalty. It is the issue of penalty that this decision addresses.
For the sake of completeness I repeat the background information from Reasons for Decision dated December 8th, 2006.
Background:
On September 21, 2002 members of the Durham Regional Police Service (the “Service”) responded to a call for service from a resident of the Oshawa community. Two young girls alleged that while they were delivering newspapers a truck or SUV with a trailer loaded with brush had stopped them on a residential street and the driver had asked the girls if they delivered newspapers to a specific address to which they replied in the negative.
There is some question as to whether the girls were asked if they wanted to get into the vehicle so that the driver could show them the house in question to determine whether in fact they did deliver newspapers to that location. The girls alleged that they were asked to get into the vehicle and were upset as a result of this interaction. The girls ultimately went home and reported what happened to their parents who called the police.
Constable Wayne King was in the area as an assigned assisting officer. He was advised by the investigating officer that the vehicle in question had been located in Oshawa. Constable King attended at that address and went to the front door of the residence. Constable King and Mr. Elliott, the owner of the house, spoke at the front door of the residence and very quickly became involved in a physical confrontation. This interaction resulted in the arrest of Mr. Elliott by Constable King for assaulting a police officer and assault with intent to resist arrest. Mr. Elliott was charged and subsequently acquitted of the criminal charges after trial. Mr. Elliott filed a complaint with the Service about the actions of Constable King, alleging that Constable King used excessive force, instituted false charges and conducted an unwarranted strip search on the complainant. The Service investigated these complaints and by letter dated January 5th, 2004 responded that the complaint was unsubstantiated and pursuant to section 64(6) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) no further action should be taken.
By letter dated March 5th, 2004 Counsel for Mr. Elliott requested this Commission to review the decision of the Service. By letter dated June 8th, 2004 this Commission determined “there is sufficient evidence to warrant a hearing into the allegation that Constable Wayne King #3075 may have committed misconduct of a serious nature under section 54(7) of the Act on September 21, 2002 in that he, without good and sufficient cause made an unlawful or unnecessary arrest.” As a result of that decision, a hearing was held.
The hearing was held over a 3-day period, which began on the 24th day of May, 2005 and ended on July 14th, 2005. Following the reading of the charges, Constable King entered a plea of not guilty.
Testimony was heard from 7 witnesses and 14 exhibits were tendered during the trial. Mr. Robert Elliott was the first witness to testify. At the time of the incident he was the owner of 87 Jones Avenue in Oshawa and had resided there for approximately 3 weeks. Mr. Elliott advised that on that date he was utilizing a truck and trailer to remove brush from his residence to the municipal transfer station. He testified on the second trip that he encountered 2 young girls who were delivering newspapers to homes nearby. He stopped his vehicle and asked if they delivered to 87 Jones. They advised that they did not, at which point Mr. Elliott drove away.
Mr. Elliott described his interaction with Constable King at his front door. In particular he noted that Constable King asked him whether he had asked the girls to get into his truck. Mr. Elliott denied that and advised Constable King that the conversation was over. Mr. Elliott then described trying to shut the door but being unable to do so because the door was blocked by Constable King. Constable King then entered the house, put a choke hold on Mr. Elliott and subsequently arrested him.
Ms. Mary Durnin was the next witness to testify. She was present at 87 Jones Avenue and could hear what was transpiring but could not see Mr. Elliott and Constable King while she was in the adjoining room.
The next witness was Constable Michael McCormick of the Durham Regional Police Service who was the investigating officer for the incident. He described the events leading up to the “door knock” by Constable King and also stated that he was the second police officer to arrive on the scene. At that time he observed Mr. Elliott and Constable King lying on the porch struggling, with Constable King on his back and Mr. Elliott on top of him.
Sergeant Jeffrey Hewett also testified. He was the supervising member of the Service for the incident and made comments with respect to his role. Constable Wayne King next took the stand. He testified that he had been a police officer for one year at the time of the occurrence. He described how he came into contact with Mr. Elliott on September 21, 2002.
Constable King testified that he went to the residence to conduct a “door knock” to obtain further information about the incident. He testified that at one point in the conversation Mr. Elliott advised him that the conversation was over and at the same time pushed him, resulting in Constable King advising Mr. Elliott that he was under arrest for assaulting a peace officer. A struggle then ensued. The last 2 witnesses were the young girls who were involved in the initial interaction with Mr. Elliott. They both testified that Mr. Elliott asked them if they wished to get into the car to be shown his house.
Following the trial, the Hearing Officer rendered written reasons dated September 28, 2005 wherein he dismissed the charge of unlawful or unnecessary exercise of authority against Constable Wayne King. It was that decision which was appealed to this Commission by the complainant, Mr. Robert Elliott.
As indicated above, the Commission by Reasons dated December 8th, 2006 revoked the decision of the Hearing Officer and replaced it with a finding of guilt of misconduct in that on September 21st, 2002, without good and sufficient cause Constable King made an unlawful or unnecessary arrest. The parties were directed to provide the Registrar of the Commission with written submissions within the next 45 days with respect to penalty, so that issue might be addressed.
Appellant’s Position:
Counsel for the Appellant, Sunil Mathai argues in his written submission that Constable King’s misconduct was serious in that the Appellant suffered significant injuries as a direct result of such misconduct.
He further submits that the Appellant suffered significant financial burden as a direct result of such misconduct.
He argues that inconsistencies in Constable King’s testimony for his professional statement, criminal trial and discipline hearing are evidence of an attempt to avoid a finding of misconduct and should be viewed as an aggravating factor in assessing penalty.
He concludes that deterrence should be a significant factor as Constable King “must have been aware that his attempt to arrest the Complainant was unlawful”. He proposes a suspension of 15 days pursuant to section 68(1)(d) of the Act. He adopts paragraph 12 and 13 of the Service’s submission (which will more particularly be referred to hereinafter) and proposes that a reprimand be given to Constable King pursuant to section 68(5)(a) of the Act.
Respondent Police Service’s Position:
Staff Inspector Brian Fazackerley for the Respondent Police Service, in his written submission, advises that Constable King has successfully completed courses in Investigative Interviewing Techniques and Sexual Assault Responders Course. He is now a five-year veteran officer with positive performance evaluations which have emphasized his inclination to learn and be more skilled.
He argued that the prosecution throughout the hearing alleged that Constable King made significant errors in discretionary judgment as to both sound investigative tactics and prudent officer safety measures when he decided to do a “door knock” as and when he did. The Service is now satisfied that Constable King has had ample cause and opportunity to reflect upon his tactical decision making and actions of September 21, 2002. Accordingly, as set out in paragraph 12 of its submission, prosecution is seeking a direction pursuant to section 68(5)(b) of the Act directing that Constable King undergo training by way of the Advanced Patrol Training Course, Ontario Police College which is next scheduled to be offered from February 26, 2007 to March 2, 2007.
The Service is also seeking, as per paragraph 13 of its submission, a direction pursuant to section 68(5)(c) of the Act that Constable King participate in a specified activity, insofar as he will engage in a critical incident debrief of the Robert Elliott matter with the Police Learning Centre training staff so that the staff can incorporate into training procedures the impact of the Commission’s findings in relation to the implied licence and trespass.
The Service submits that this is not an appropriate case for recourse to penalties found under section 68(1) of the Act and suggests that a reprimand under section 68(5)(a) of the Act in all of the circumstances “amount to a somewhat moot and stale expedient”. Further, the Service submits that the Service’s recognition of the Commission’s decision as is reflected in changes to training and procedures is a more fitting testament to the Appellant’s involvement in this situation.
Respondent Police Officer’s Position:
William R. MacKenzie for the Respondent Police Officer, in his written submission, urged the Commission to consider that the misconduct arose from an attempted good faith performance of Constable King’s duties and that the “law governing the invitation to knock and revocation of implied licence is a very esoteric and grey area giving rise to significant consternation by the various courts of this country”.
He advised that Constable King adopted by way of a “joint submission” paragraphs 12 and 13 of the Service’s submission referred to above.
Finally, he pointed out that Constable King has had no intervening disciplinary occurrences and now approximately four and half years after the incident holds the rank of first-class constable.
Decision:
The factors to be considered with respect to penalty are clear. As was stated in Carson and Pembroke Police Service (9 March, 2006, O.C.C.P.S.) at pages 14 and 15:
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 police 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 a penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.
It is these principles which must be considered in assessing penalty.
The law surrounding the “invitation to knock” and the revocation of such right are central to the finding of guilt in this matter. Constable King testified that he believed that he was acting in accordance with the law.
Counsel for all parties were unable to provide a decision from any court or tribunal which was specifically on point regarding the critical issue, namely, how does an occupant terminate such right once the police officer has entered upon the property and is in the act of exercising such right. Until this decision, there has been no clear direction on this point by either the courts or this Commission.
I have considered how the three major principles of penalty apply, namely: the seriousness of the misconduct, the ability to reform the officer and the damage to the police service if the officer remains on the force.
Given the circumstances of this case and the officer’s intervening conduct, the ability to reform the officer is extremely high. The chance of damage to the police service if the officer remains on the force is remote.
When determining the seriousness of the misconduct, one must consider that at the time of the incident Constable King was a junior officer who was required to make a decision with respect to a very complex legal issue. Unfortunately that decision was wrong. Constable King undertook the misconduct with a mistaken belief that his actions were appropriate and within the framework of the law. The consequences to Mr. Elliott were significant, but Mr. Elliott must bear some of the responsibility for the nature of the interaction which occurred after the initial physical contact.
I have considered the other factors which can be relevant as either mitigating or aggravating factors.
Considering the facts of this case, the principles for sentencing and the clarification given by this decision regarding the method of revocation of the licence to knock after contact, I am of the view that a traditional penalty is not appropriate. I endorse the submission of the Service that Constable King be directed pursuant to section 68(5)(c) of the Act to participate in a specified activity, insofar as he will engage in a critical incident debrief of the Robert Elliott matter with the Police Learning Centre training staff so that they can incorporate into training procedures the impact of the Commission’s findings in relation to the implied licence and trespass, and I so order.
Given Constable King’s record since the incident and his conduct in undergoing training courses I do not order that he attend any additional specific courses, but acknowledge that additional training is always advisable. The Advanced Patrol Training Course, offered by the Ontario Police College appears to be a course which would be of benefit to him.
I have considered whether Constable King should be reprimanded or not. It has been argued that time has passed and a reprimand would be moot. However, the misconduct was either one which deserved a reprimand or it did not. The time which the matter took to reach conclusion does not change that fact. The conduct did constitute misconduct and therefore I hereby further order that pursuant to section 68(5)(a) of the Act that Constable King be reprimanded for his actions which did constitute misconduct.
DATED AT TORONTO THIS 5th DAY OF FEBRUARY, 2007.
David Edwards Member, OCCPS