OCCPS #07-02
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE DEAN ION Appellant
TORONTO POLICE SERVICE Respondent
Presiding Members: Murray W. Chitra, Chair Biagio (Bill) Marra, Member
Appearances: Joanne E. Mulcahy, Counsel for the Appellant Ian Solomon, Counsel for the Respondent
Hearing Date: Tuesday December 12, 2006
Constable Dean Ion appeals the finding of guilt made against him on October 27, 2005 by Superintendent N.T. Tweedy (the “Hearing Officer”) for the disciplinary offence of being absent without leave, without lawful excuse contrary to section 2(1)(c)(ix) of the Code Of Conduct found at O. Reg. 123/98 as amended (the “Code”).
Constable Ion further appeals the penalty imposed upon him on March 16, 2006 of forfeiture of two days or sixteen hours off.
Background:
Constable Ion began his career in policing in 1989. At the time of the events in question he was a member of the 52 Division Plainclothes Unit. The focus of his policing duties was enforcement activities in the entertainment district of Toronto, specifically relating to prostitution, street level drug sales, ticket scalping and the Liquor License Act.
The Unit consisted of two teams with seven constables assigned to each, both supervised by a sergeant. Each team worked a modified compressed work week in that they were on duty for eight days and off duty for six days. This caused an overlap every Thursday when both teams were scheduled to work. The hours of work were from 4:00 p.m. to 2:00 a.m.
It was common practice for the officers of this Unit to be required in Court during the day and before their scheduled shift and also for other related responsibilities. It would appear that an informal system of “give and take” was applied to address this issue. In other words, officers were occasionally given permission to arrive late or leave early.
This matter came to the attention of Professional Standards during an unrelated investigation at 52 Division that generated a number of wiretaps. As a result, Constable Ion’s attendance at work on Christmas day of 2003 came into question.
On July 2, 2004 Constable Ion was charged with two counts of misconduct. The particulars of the one allegation before us read:
Being a member of the Toronto Police Service, attached to 52 Division, you were assigned to plainclothes duties.
On Thursday, December 23, 2003, you were scheduled to work from 4:00 p.m. to 2:00 a.m. You failed to report for duty as required.
Investigation revealed that you failed to sign in or out in the unit sign-in sheets. Further, that the TRMS entry made, indicating that you worked a full shift, was not correct.
In doing so you were absent without leave from or late from any duty without reasonable excuse.
The Hearing:
The disciplinary hearing took place on September 8, 2005. The Prosecutor called Inspector Paul Ziraldo and Detective Terry Tretter as witnesses. The Defense called Constable Dean Ion and Sergeant Brian Berger.
Constable Ion testified that he was scheduled to work on December 25, 2003 but there was not much to do as all the licensed premises and stores were closed, no drug dealers were out and two teams were scheduled to work. He testified that his immediate supervisor, Sergeant Brian Berger, told staff that some officers could come in at the start of the shift and go home early and others could come in late in order to accommodate their Christmas dinner plans.
Constable Ion’s evidence was that “Brian told me that I didn’t have to come in immediately”. Constable Ion testified that he spoke again with Sergeant Berger after 5:00 p.m. and was told that because there were two teams on duty that he could remain at home and would be contacted if needed. Constable Ion lived a few minutes drive from the Station. Constable Ion stated that he remained in constant phone contact with Sergeant Berger.
Constable Ion’s evidence was that he believed that he was allowed to remain at home with his family as a gift from Sergeant Berger in return for all of the work he had performed in the past while not officially on duty. Constable Ion also testified that he was of the belief that Sergeant Berger had authority to grant him the day at home, however in his mind he was on standby and thus working that day.
At approximately 8:00 p.m. Constable Ion went to the Station and noted that he was signed in as being on duty. He stated that he did not sign himself in nor was he aware of who did. Constable Ion spent an hour at the Station. He then drove around the Division for two hours and returned home at 11:00 p.m.
Sergeant Berger’s evidence supported Constable Ion’s account. He confirmed that he had advised team members that they could have either an early or late dinner with their families. Further, when he found out that there were two teams scheduled he told Constable Ion that if he did not want to come in that that would be fine with him. As well, Sergeant Berger testified that he was aware that Constable Ion lived only a few minutes from the Station and could be paged if needed.
When asked if he felt that he had the specific authority to grant him (Constable Ion) Christmas day at home with his family, Sergeant Berger stated; “Well I was in charge of the office and um, whether I had formal authority, no I don’t believe I had formal authority. I had informal authority I guess it would be that. I’ve been told um, on occasion by my unit commander that it was my squad, you run it was his um, comments to me”.1
Sergeant Berger further testified that “There’s been a practice on this Service since I’ve been on it, of people working unclaimed hours and it’s a give and take situation. They work unclaimed hours and as a result, they take off the odd time here and there”.2
At the completion of evidence submissions were made and the Hearing Officer reserved. On October 27, 2005 the Hearing Officer found Constable Ion not guilty of making a false, misleading or inaccurate statement pertaining to official duties (i.e. relating to the entries on the sign in sheet). However, the Hearing Officer found Constable Ion guilty of the allegation of being absent without leave from or late for any duty without reasonable excuse.
Essentially, the Hearing Officer concluded that:
- Constable Ion had a legal duty to be at work on Christmas day;
- Constable Ion failed to work as scheduled and thus did not perform his duty;
- that Sergeant Berger had no authority to allow those under his command, including Constable Ion, to stay at home;
- this was known or ought to have been known to Constable Ion and therefore did not provide him with a reasonable excuse for his conduct; and
- had Constable Ion reported to the officer in charge of the Station, as required, then his improper belief as to Sergeant Berger’s authority would have been rectified.
On January 17, 2006 submissions were made on penalty and the Hearing Officer reserved. On March 16, 2006 he rendered his decision and imposed a penalty of two days or sixteen hours off.
Appellant’s Position:
Ms. Mulcahy, on behalf of the Appellant, suggested that the facts of this case were not in dispute. Constable Ion was given permission by his immediate supervisor, Sergeant Berger to not come into work on Christmas day so long as he was available on-call for the shift in question. As such, she argued Constable Ion had a reasonable excuse for his absence that he was entitled to rely upon.
On this point she drew our attention to P.G. v. Ontario (Attorney General) [1996] O.J. No. 1298 (Ont. Div. Ct.), Pollock v. Hill and Cowley (November 19, 1992, Ont. Bd. Inq.), R. v. Devereaux (1996), 1996 CanLII 11047 (NL CA), 112 C.C.C. (3d) 243 (Nfld. C.A.), R. v. Finta (1994), 1994 CanLII 129 (SCC), 88 C.C.C. (3d) 417 (S.C.C.), Re Durham Board of Education and Ontario Secondary School Teachers’ Federation, District 17 (1978), 19 L.A.C. (2d) 427 and Canadian Labour Arbitration (Brown and Beatty, 3rd edition at page 7-66).
Ms. Mulcahy noted Toronto Police Service Rule 3.1.3 states that unless otherwise instructed, members of the police service are required to report for duty in person to the supervisor at their unit at the beginning of their tour of duty, and, report off duty in person to a supervisor at their unit at the completion of their tour of duty.
Ms. Mulcahy argued that Constable Ion was indeed instructed to do otherwise, and he complied with that direction. Ms. Mulcahy noted the electronically recorded interview of Constable Ion by Detectives Terry Tretter and Sheila Ogg on Thursday February 17, 2005 in which Constable Ion stated that he “was given permission to be gone for the whole day” by Sergeant Berger.
She asserted that to punish an officer for doing something that he was either authorized or directed to do created an unacceptable double standard that stuck at the heart of the proper functioning of the chain of command. Irvine (1971), 1 O.P.R. 67 (O.P.C.), Murray and Metropolitan Toronto Police Service (1984), 2 O.P.R. 616 (O.P.C.), Re Retail, Wholesale & Department Store Union Local 41 and Dominion Stores Ltd. (1961), 12 L.A.C. 164 and Footman v. Davies et al. (December 14, 1984, Police Complaints Board).
She asserted the Hearing Officer erred by substituting his opinion for that of Constable Ion, failed to apply an objective standard to the evidence before him and engaged in ex post facto speculation.
On these points she cited Austin et al. v. Rabah (November 16, 1998, Ont. Bd. Inq.), Hasen et al. and Toronto Police Service (August 3, 1994, Hearing Officer Wolfe), Blowes-Aybar and Toronto Police Service (February 23, 2003, O.C.C.P.S.), Rowe and Sault Ste. Marie Police Service (April 23, 2003, O.C.C.P.S.), Shockness v. Gillespie (September 27, 1994, Ont. Bd. Inq.), Hallam v. College of Physicians and Surgeons (1993), 61 O.A.C. 143 (Ont. Div. Ct.), Gloucester Police Service and Trembley (1983), 42 O.R. (2d) 95 (Ont. Div. Ct.), Knippel v. Institute of Chartered Accountants of Saskatchewan [1991] S.J. No. 184 (Sask. Q.B.) and Brett v. Board of Directors of Physiotherapy (1991), 48 O.A.C. 24 (Ont. Div. Ct.).
Ms. Mulcahy also referred the testimony of Inspector Ziraldo in which he acknowledged that it was well known by all levels of management that if there is an opportunity for a supervisor to permit an officer to come in late or not come in at all, that it is often done to make up for the numerous hours police officers work for when they do not get paid. In response to questions on this point, Inspector Ziraldo had stated, “I know for a fact sir that it has been done. Um, but I know that that is not following procedures … although I will concede that that has been done in the past … It would have been a management practice that would have been um, throughout the Service”.3
Ms. Mulcahy asserted that the Hearing Officer erred by failing to take into account this evidence of a system of informal “give and take”. Saint John Shipbuilding Ltd. and Industrial Union of Marine and Shipbuilding Workers of Canada, Local 3 (1994), 1994 CanLII 18658 (NB LA), 41 L.A.C. (4th) 264 and Northside Industries Inc. and I.A.M. (1999), 1999 CanLII 35920 (BC LA), 85 L.A.C. (4th) 86
Ms. Mulcahy also argued that the penalty imposed by the Hearing Officer was both harsh and excessive. She suggested that the Hearing Officer had improperly concluded that the penalty of reprimand was not available to him. On these points she drew several cases to our attention.
Ms. Mulcahy concluded by requesting that we set aside the Hearing Officer’s finding of guilt against Constable Ion. However, she asserted that if we were to uphold the conviction that we should modify the penalty to the imposition of a reprimand.
Respondent’s Position:
Mr. Solomon argued that the findings of the Hearing Officer should stand as the conclusions were based on a proper evidentiary foundation, did not demonstrate any manifest errors in principle and the penalty imposed was within the acceptable range of dispositions available. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Deviney and Toronto Police Service (1999), 3 O.P.R. 1315 (O.C.C.P.S.)
Mr. Solomon stated that on the facts of this case that Sergeant Berger did not issue a legitimate “order” to Constable Ion. He noted that Sergeant Berger had pled guilty in related disciplinary proceedings to neglect of duty for permitting officers under his command, including Constable Ion, to take unscheduled time off. Further, he suggested that there was no risk of any charge of “insubordination” being made against Constable Ion had he performed the duties for which he was scheduled.
Mr. Solomon pointed out that Constable Ion admitted to knowing that he was scheduled to work on the day in question, made a memo book entry showing that he was on duty, dropped by the Station to confirm that he was signed in and knew that he would receive premium holiday pay. Mr. Solomon stated that it was unreasonable for Constable Ion, a veteran of some 16 years service, to believe that he could be legitimately authorized by Sergeant Berger to be paid for duties that he in fact did not perform.
Mr. Solomon argued that Constable Ion had not met the burden of establishing a reasonable excuse. Further, he suggested that it is well established that the misconduct of a superior officer does not excuse the misconduct of a subordinate officer. Mr. Solomon argued that while the misconduct of a supervising officer does not go to the issue of the guilt or innocence of a subordinate officer, it may be taken into account as a mitigating factor in sentencing.
On these points he drew our attention to Perry and York Regional Police Service (1972), 1 O.P.R. 89 (O.P.C.), Gilpin and Sudbury Police Service (1978), 1 O.P.R. 364 (O.P.C.), Gregg and Midland Police Service (2001), 3 O.P.R. 1522 (O.C.C.P.S.), Andrews and Midland Police Service (November 12, 2002, O.C.C.P.S.) and R. v. Beare [1988] 2 S.C.R. 382 (S.C.C.).
On a related point, Mr. Solomon referred to Sterling and Hamilton-Wentworth Police (1999), 3 O.P.R. 1356 (O.C.C.P.S.). That appeal concerned an allegation of neglect of duty. The appeal was dismissed because the Commission was satisfied that is was no excuse for the officer to say that he was merely following common practice. Cristiano and Toronto Police Service (1997), 3 O.P.R. 1126 (O.C.C.P.S.)
Mr. Solomon reminded us of section 42(1) of the Police Services Act R.S.O. 1990, c. P. 15 as amended (the “Act”). That provision sets out the duties of a police officer. Mr. Solomon rejected the notion that there was no work on Christmas day and described this as an unreasonable and dangerous basis for a defense given the Appellant’s oath of office and legislated responsibilities.
In reply to the Appellant’s submission concerning Inspector Ziraldo’s testimony at the hearing concerning informal scheduling practices, Mr. Solomon pointed out that Inspector Ziraldo had clearly indicated that the practice was both “frowned upon”, “not following procedures” and “not condoned” by either the Service or Toronto Police Association.
Mr. Solomon also argued that penalty imposed by the Hearing Officer was reasonable, did not demonstrate any manifest error in principle and properly took into account the relevant sentencing criteria. He drew our attention to several cases on these points.
In conclusion, Mr. Solomon asserted that the Hearing Officer’s decision was based on factual findings supported by evidence and that the penalty imposed was at the lower end of the spectrum of penalties. Mr. Solomon requested that we dismiss this appeal and confirm both the conviction and penalty
Decision:
Constable Ion was charged with the disciplinary offence of neglect of duty. Section 2(1)(c)(ix) of the Code deems an officer to be guilty of such misconduct when he or she “is absent without leave from any duty or late for any duty, without reasonable excuse”. The essence of the charge against Constable Ion was ‘absence’ rather than ‘lateness’.
In order to establish such misconduct it is necessary to prove that an officer was ‘absent from duty’. However, it does not follow that every absence will constitute misconduct. An officer may excuse his or her absence by showing that they had either ‘leave’ or other ‘reasonable excuse’.
These principles are not peculiar to the police disciplinary regime. In the broader labour relations context, Brown and Beatty state at page 7-66:
The obligation of employees to maintain regular attendance requires not only that they consistently show up for work on time, but that they do not leave without proper authorization. Even if it only involves a brief period of time, leaving work early has always been regarded as a disciplinary offence. Indeed, employees who persist in such behaviour and/or attempt to claim remuneration for the period they were absent, risk loosing their jobs. An exemption may be made when an employee experiences a serious illness or some other personal emergency and/or no member of management is readily available. A reasonable belief that permission to leave work early by the responsible person may also exonerate the employee of any wrongdoing, even it subsequently transpires that that person had no such authority.
The question for us is whether or not the Hearing Officer properly applied these principles to the case before him.
There is not dispute that Constable Ion was scheduled to work on Christmas day of 2003. Prior to the commencement of his shift he contacted his supervisor, Sergeant Berger, and was told that he did not have to report to the Station at 4:00 p.m. Rather, he could stay home and have an early Christmas dinner with his family.
Following the completion of his dinner, Constable Ion, once again contacted his supervisor. The evidence of Constable Ion, confirmed by Sergeant Berger, was that he was told that given that there were two teams on duty, it was not necessary for him to come in, so long as he remained available by page. Constable Ion lived a few minutes drive from the Station. He had his handcuffs, pepper spray and gun with him at home. He could be at work in less than five minutes.
On the face of it, Constable Ion was absent from duty. However, it is evident that he had ‘leave’. Further, according to Constable Ion, he believed based on past practice that his supervisor had the authority to grant him leave to remain at home on what was in effect ‘standby’.
It would appear that Sergeant Berger did not have the ‘formal’ authority to grant such leave. According to the Hearing Officer this was either known or should have been known to Constable Ion. In his decision he suggested that had Constable Ion reported to the officer in charge of the station as required at the commencement of his shift, then any improper belief on his part would have been rectified.
With the greatest of respect to the Hearing Officer, there was no evidence before him to support a finding that Constable Ion ‘knew’ that his supervisor did not have authority to grant such leave. On the question of whether he ‘should have’ known we note the decision in Re Durham Board of Education and Ontario Secondary School Teachers’ Federation, District 17.
That case concerned a teacher who, along with a number of others, attended a racetrack during a professional development day with the knowledge of his principal. The panel in that case found at page 4:
The grievor, quite clearly, believed that his “absence” from the school that afternoon was not contrary to any board ruling nor was it contrary to the view of the principal. He would be entitled to believe he had whatever permission was necessary. The fact that the principal may have had no such authorization from the board to approve such leave is not material.
We see no reason why the same logic would not apply to this case. Constable Ion should be permitted to rely on the explicit permission of his supervisor as a “reasonable excuse” to be absent from the Station.
This is not a case of a subordinate officer in the company of a supervisor, failing to respond to potential criminal activity such as in Gregg and Midland Police Service. It is not a case of an officer working in isolation, invoking “common practice” as an excuse for not following established rules such as in Sterling and Hamilton Wentworth Police Service and Cristiano and Toronto Police Service.
On the date in question Constable Ion was ready, willing and able to work. He spoke to his supervisor at least four times by telephone during the course of the day. He was told specifically by Sergeant Berger that he was not required to report at the commencement of his shift. Later on in the afternoon, he was told that he need not come in, but was to be on standby. Notwithstanding this, Constable Ion did indeed go to the Station at 8:00 p.m. and spent more than an hour speaking to various individuals. He patrolled the Division for two hours before returning home.
In the absence of Sergeant Berger’s authorization Constable Ion’s actions would have constituted misconduct. However, given the Sergeant’s undisputed permission it is evident that Constable Ion was entitled to believe that he had both leave and a reasonable excuse for behaving as he did.
Whether or not Sergeant Berger misconducted himself by authorizing something beyond his authority is a separate question between him and his employer and the subject of other disciplinary proceedings. They do not bear on Constable Ion’s culpability.
To our mind, the Hearing Officer erred in principle by failing to properly take these matters into account. For the above noted reasons we overturn Constable Ion’s conviction for neglect of duty and substitute an acquittal.
DATED AT TORONTO THIS 23RD DAY OF FEBRUARY, 2007
Murray Chitra Chair, OCCPS
Biagio (Bill) Marra Member, OCCPS