OCPC #10-02
ONTARIO CIVILIAN POLICE COMMISSION DECISION ON A PRELIMINARY MOTION
Citation: Wiggers v. Durham Regional Police, 2010 ONCPC 2
Sergeant Ray Wiggers
Appellant
(Applicant on Motion)
Durham Regional Police Service
Respondent
Presiding Members:
Murray W. Chitra, Chair
Garth S. Goodhew, Member
Counsel:
David Butt, Counsel for the Appellant
Visha Sukdeo and Sheila Schweizer, Counsel for the
Respondent
Hearing Date: January 25, 2010
This is a motion brought on behalf of the Appellant, Sergeant Wiggers, for an order pursuant to section 25 (1)(b) of the Statutory Powers Procedure Act R.S.O. 1990, c. S.22, as amended (“SPPA”).
The Respondent Durham Regional Police Service (the “Service”) consents to the order requested. The parties filed joint materials on this motion.
The effect of the order sought would be to lift the automatic stay of the penalty of demotion from sergeant to first-class constable for the period of one year imposed by Staff Inspector Brian Fazackerley (the “Hearing Officer”) on April
30, 2009, pending the outcome of Sergeant Wiggers’ appeal.
The Appellant does not request a similar order with respect to the balance of the penalty (i.e. several conditions applying beyond the period of demotion), which remains the subject of this appeal.
We considered this motion in writing on January 25, 2010. That same day, we advised parties that the motion had been granted, with reasons to follow. These are those reasons.
Background:
On May 1, 1989, Sergeant Wiggers was hired as a fourth- class constable by the Service. On October 7, 2003 he became a sergeant and in January of 2007 was transferred to 15 Division.
In early September of 2007, Inspector Townley, the officer in charge of 15 Division, became concerned about the amount of leave taken by Sergeant Wiggers. As a result, an internal time management audit was initiated into Sergeant Wiggers’ absences from work during the period January through to the fall of 2007. This audit found that during that time Sergeant Wiggers had taken over 140 hours of unaccounted time off work.
As a result, the Professional Standards Unit commenced a misconduct investigation in respect of the unaccounted hours. When he became aware of this investigation,
Sergeant Wiggers acknowledged wrongdoing, stating that he had personal problems and needed help with substance abuse.
On February 4, 2009, Sergeant Wiggers was served with a
Notice of Hearing which read:
You are alleged to have committed misconduct in that you, on or between January 1 and September 30, 2007 acted in a manner likely to bring discredit upon the reputation of the police force, thereby committing the offence of Discreditable Conduct, contrary to Part V, clause 74 (1)(a) of the Police Services Act, R.S.O.
1990, c.15, as amended, and clause 2 (1)(a)(xi) of the Schedule Code of Conduct, O. Reg.123/98, as amended, under the Police Services Act.
The Notice further alleged that during the period in question Sergeant Wiggers had been absent from work or booked time off during a scheduled shift for a total of 164.5 hours without proper time bank accounting.
When the disciplinary hearing convened on March 12, 2009, Sergeant Wiggers pled guilty. An Agreed Statement of Facts describing a series of incidents involving 165 hours (later amended to 161 hours) of workplace “time theft” was tendered by the prosecution and adopted as substantially correct by Sergeant Wiggers. On the basis of this the Hearing Officer accepted the guilty plea and convicted Sergeant Wiggers of one count of discreditable conduct.
A penalty hearing was held on March 12, April 7, and April 8,
- Evidence was introduced establishing the extensive record of Sergeant Wiggers’ unreported absenteeism. Medical experts testified about related medical issues, including the abuse of alcohol which was seen to be a factor in the absenteeism.
On April 30, 2009 the Hearing Officer released a decision imposing the following penalty:
(1) A demotion from sergeant to first-class constable for a period of one year effective May 3, 2009, following which period he would revert to the rank of sergeant; and,
(2) Reinstatement to duty was subject to eight conditions.
Significantly, a number of the conditions referred to above were to apply beyond the period of his demotion.
On May 4, 2009 Sergeant Wiggers filed a notice of appeal from the penalty imposed by the Hearing Officer. Pursuant to [section 25