Dykman v. London Police Service, 2012 CanLII 102126

OCPC #12-04

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED

Citation: Dykman v. London Police Service, 2012 ONCPC 4

BETWEEN:

CONSTABLE BRIAN DYKMAN APPELLANT

-and-

LONDON POLICE SERVICE RESPONDENT

DECISION

Panel: David C. Gavsie, Chair Noëlle Caloren, Member

Hearing Date: November 4, 2011 Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca

Appearances: Glen S. Donald, Counsel for the Appellant Bruce K. Brown, Counsel for the Respondent

Background

1. By decision dated May 17, 2011, Hearing Officer Detective Superintendent William D. Merryless, (the “Hearing Officer”), of the London Police Service (“LPS”) found the Appellant guilty of a charge of committing misconduct, in that the Appellant neglected his duty on August 23, 2009 by not following LPS Procedures in a suspect apprehension pursuit (“SAP”) contrary to:

a) s. 74(1)(a) of the Police Services Act R.S.O. 1990, c.P.15, as amended (the “Act”); and

b) s. 2(1)(c)(ii) of the Code of Conduct (“Code of Conduct”)

set out as a schedule to Ontario Regulation 123/98.

2. By decision dated June 23, 2011, the Hearing Officer imposed the following penalty on the Appellant:

a) a reprimand; and

b) additional training regarding procedures in SAPs as determined by LPS.

3. The Appellant is appealing the finding of guilt made by the Hearing Officer on the basis that absent some element of wilfulness, there cannot be neglect of duty, and that what occurred was solely a work performance matter, not neglect of duty.

Decision

4. For the reasons set out below, we dismiss this appeal.

Applicable Law

5. The events to which the initial hearing and this appeal pertains took place on August 23, 2009 and thus occurred prior to October 19, 2009. By virtue of s. 98 of the Act, this case is governed by the former Part V of the Act as it read prior to the latter date.

The Facts

6. The hearing before the Hearing Officer combined charges against the Appellant and Sergeant Paul Gambriel arising out of the same series of events on August 23, 2009. Sergeant Gambriel was the supervising road officer monitoring the latter stages of the events involving the Appellant.

7. An Agreed Statement of Facts (“ASF”) was submitted at the hearing. The salient facts taken from the ASF are set out below.

8. The Appellant was driving a LPS vehicle with subdued markings. It was difficult to recognize as a police vehicle until its emergency lights were activated.

9. The Appellant was a First Class Constable with LPS with an unblemished service record. He joined the LPS in mid-2005.

10. The Appellant saw a vehicle (the “Subject Vehicle”) come out of a driveway of a residence. He knew the female driver to be a person driving in contravention of a driving prohibition enforceable under the Criminal Code.

11. The Appellant activated the emergency lights on his vehicle. The driver did not pull over, but rather accelerated the Subject Vehicle. The Subject Vehicle went through a stop sign.

12. The Appellant contacted the LPS dispatch to advise them of what was happening.

13. The Appellant continued to travel behind the Subject Vehicle with its emergency equipment activated. The Subject Vehicle went through a second stop sign narrowly missing a vehicle that had the right of way.

14. The Appellant gave the dispatcher the speed and direction of the Subject Vehicle, and advised he was backing off.

15. The Appellant had formed reasonable and probable grounds to arrest the Subject Vehicle’s driver for dangerous driving and driving contrary to a prohibition.

16. The Appellant’s radio transmission was overheard by a Sergeant in communications who advised the Appellant to stop the pursuit.

17. The Appellant, fearing for the public’s safety, decided to “continue to strategically follow” the Subject Vehicle, disengaging his emergency lights and falling back to a distance of approximately 500 metres.

18. This continued for about five kilometres through a commercial-industrial area where traffic was moderate.

19. The Appellant believed that the driver was no longer aware he was behind her. The distance between them closed to 300 metres. The Appellant continued to update his dispatch.

20. The Subject Vehicle drove through a light nearly colliding with another vehicle. Then a little further along, to avoid a red light, the driver turned the Subject Vehicle into and drove through a gas station.

21. The Appellant had moved closer to the Subject Vehicle when it drove through the gas station and was joined by two marked police cruisers with their emergency equipment activated.

22. The Appellant asked dispatch “What’s the Sergeant’s pleasure”. Sergeant Gambriel who was in the area and who had seen some of how the Subject Vehicle was being driven advised the Appellant and the drivers of the marked cruisers to get in a position to stop the Subject Vehicle without using contact.

23. Given the circumstances and threat to public safety, the Appellant decided to effect a rolling block with the assistance of the other two cruisers.

24. During the set up of the rolling block, the Subject Vehicle moved onto the gravelled shoulder of the road, causing the driver to lose control and causing the Subject Vehicle to roll several times, injuring both the driver and her passenger. The driver was rendered a paraplegic. The passenger received a broken shoulder and lacerations.

Appellant’s Submissions

25. The Appellant argues that the Hearing Officer erred in his determination that the non-wilful disobedience of procedures by the Appellant amounted to misconduct. At its highest, this is a work performance issue.

26. Although it was open for the Hearing Officer to make a finding that the incident was a “continuous pursuit”, the Appellant’s intention to “strategically follow” is different, although it may not have been done properly.

27. The Appellant was acting in good faith and at all times was performing his sworn duties under s. 42(1) of the Act.

28. In the case of P.G. v. Ontario (Attorney General) [1996] O.J. No. 1298, the Ontario Divisional Court adopted a decision of a Board of Inquiry in Pollock v. Hill which held:

A finding of a breach of the Code of Offences is a serious finding against an individual officer which may result in major penalties under the police complaints legislation. Therefore, we will not find the Officers guilty of neglect of a duty to supervise unless there was some element of wilfulness in their neglect or unless there was a degree of neglect which would make the matter cross the line from a mere performance consideration to a matter of misconduct (underlining added for emphasis).

29. The Hearing Officer held that the Appellant’s course of action was not wilful, but concluded that the breaches of the LPS procedures constituted neglect.

30. Any breaches of policy by the Appellant were inadvertent and occurred in a most stressful situation. The Hearing Officer erred in his assessment of whether the Appellant was in neglect of duty when he failed to consider the circumstances in which breaches in policy were made. Mousseau v. Metropolitan Toronto Police Force (July 6, 1981, OCCPS) p. 4.

31. The Hearing Officer failed to consider that an honest mistake provides an answer to the charge of Neglect of Duty. In this case the Appellant believed he was strategically following the Subject Vehicle rather than being in pursuit. The term “strategic following” is contemplated in LPS procedures, but is undefined.

32. In discharging his duties under s. 42(1) of the Act, the Appellant is expected to utilize his discretion. That discretion has been recognized by the courts – Mousseau, supra, and Hill v. Hamilton-Wentworth Regional Police Services Board 2007 SCC 41, [2007] S.C.J. No 41.

33. While the LPS procedures form a very useful framework for the general discharge of an officer’s duty, they do not supersede or supplant an officer’s statutory duties as set out in s. 42 of the Act.

34. It would have a chilling effect on every officer’s reasonable use of judgment and discretion if the Commission upheld a conviction for neglect of duty in circumstances such as these, in this case ie. where discretion was exercised honestly, transparently and on the basis of reasonable and probable grounds, yet inadvertently led to a contravention of policy and/or procedure.

Respondent’s Submissions

35. The LPS takes the position that the Appellant’s training and experience should have made him aware that he was engaged in a continuous pursuit of the Subject Vehicle rather than “strategic following” as he believed. The driver of the Subject Vehicle was well aware of the Appellant’s presence behind her throughout and therefore “strategic following” was not an option.

36. As a member of the Traffic Management Unit, the Appellant knew or ought to have known that SAPs are a source of potential liability, and therefore, it is critical to adhere to the rules governing them.

37. The proper test for the Commission in this appeal is whether or not the Hearing Officer’s decision was without evidentiary foundation, or contained manifest errors in principle. The Hearing officer carefully considered the evidence and made an appropriate determination – Groat v. Quinte West Police Service (November 26, 2001, OCCPS), page 2.

38. Even a single act of failure to perform a duty may constitute misconduct – Fright v. Hamilton Police Service (November 18, 2002, OCCPS), page 2.

39. It is not the Commission’s role to substitute its opinion unless the interpretation of the evidence by the Hearing Officer is self-evidently wrong, or there is a clear error. That is not the case here – Bettes v. Peel Regional Police Service (February 6, 1996, OCCPS) page 10.

Analysis

40. The standard of review for the Commission with respect to findings of fact is reasonableness – McCormick v. Greater Sudbury Police Service [2010] ONSC 270 (Ont. Div. Ct), para 89.

41. The reasonableness standard is described in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 at para 47, and is further affirmed in the recent Supreme Court of Canada decision of Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62.

42. The decision of the Hearing Officer combined the charges against the Appellant and Sgt. Gambriel. We will deal only with the decision as it applied to the Appellant.

43. There were no witnesses at the hearing. An ASF as well as exhibits were entered. The exhibits consisted of LPS records, procedures, orders, the SAP policy, a transmission CD and a video regarding SAP’s.

44. First, the Hearing Officer referred to the investigation of the LPS, noting its findings.

45. After dealing with his appointment as Hearing Officer and that of the prosecutor for the LPS, the Hearing Officer described the submissions of counsel, namely the prosecutor and the Appellant’s counsel.

46. The Hearing Officer then set out the issues discussing each in turn. They were:

47. was there a SAP?

48. did it comply with procedures?

49. should this be a work performance issue or a disciplinary matter?

50. The Hearing Officer found that there was a SAP based on the statements in the ASF. He then stated:

The defence counsel submitted that it may be considered two pursuits however based on the actions of the driver, continuous avoidance of police, statements of driver and passenger, it is my opinion that this is one continuous pursuit despite the belief of Constable Dykman that he was at one point strategically following.

48. As to whether the SAP complied with procedures, the Hearing Officer noted that in the ASF, it was agreed that the Appellant was operating a cruiser with subdued markings. He then referred to several exhibits:

a) exhibit 6 – LPS procedure manual dealing with SAP’s which provides: “Members operating an unmarked police vehicle shall not become involved in a suspect apprehension pursuit”;

b) exhibit 7 – LPS Routine Order No. 03-59 entitled “Suspect Apprehension Pursuit Clarification” centres on the definition of marked versus unmarked vehicles as specified by the PSA policing standards. The Hearing Officer indicated the vehicle operated by the Appellant was unmarked as the Order required the vehicle to be solid white and have blue and red reflective striping; and

c) exhibit 10 – In-service Training June 8 – October 19, 2005 outlines that a subdued crest traffic car is not a marked police car.

The Hearing Officer drew the conclusion that the vehicle being driven by the Appellant was not a marked cruiser for purposes of a SAP under the “Policing Standards Section” of the PSA, and that the Appellant was therefore in breach of LPS procedures.

49. The Hearing Officer goes on to apply a three part test pursuant to Ontario Regulation 546/99 (the “O. Reg.”) to determine the appropriateness of a SAP. He notes that the prosecution agreed that the Appellant complied with the first part, namely did the officer have reasonable grounds to believe that the driver committed or was about to commit a criminal offence, but did not comply with the second or third parts of the test.

50. The second part of the test under the O. Reg relates to “Were alternatives to a SAP considered?” To assess this question, the Hearing Officer considered a section of the LPS Procedure Manual indicating what officers should consider when making a decision concerning initiating a SAP. That section outlines 12 criteria. He then proffers his opinion that the Appellant did not consider any alternatives until after the SAP was initiated and concludes that the Appellant did not meet the second part of the test.

51. The third part of the test relates to whether the need to apprehend the driver outweighs the risk to public safety that may result from a SAP. The Hearing Officer reviewed the important facts about the chase and concluded: “There are several occasions where the officer should have stopped following as in my opinion the need to apprehend the driver for the above offences did not outweigh the risk to public safety from this SAP”. Based on the evidence, the Hearing Officer indicated the Appellant was not in compliance with the third part of the test.

52. The Hearing Officer next considered the rolling block used in an attempt to end the SAP. The allegation was that this rolling block did not comply with procedures. At the time it was attempted, the driver was travelling in excess of 130 km/h. He then indicated that in the ASF, Sgt. Gambriel expressed concerns with a rolling block attempt even at speeds of 80 km/h to 100 km/h. Had the Sergeant known the speeds, he would not have approved it. Based on the evidence, the Hearing Officer found that the Appellant did not comply with LPS procedures.

53. As stated in Williams v. O.P.P. (December 4, 1995, OCCPS) at page 11 commenting on the role of the Commission on appeals:

Our role or function in such matters is not to second guess the decision of the Adjudicator. In certain limited cases, it would be open to us to reach a different conclusion from the trier to fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusion of the Adjudicator, as to the credibility of witnesses, cannot be reasonably accepted.

54. Put another way, before the Commission changes a decision of a hearing officer:

We must believe that there has been a manifest error or that the conclusions are unreasonable and cannot be supported on the evidence. Norris v. Loranger [1998] 2 P.L.R. 493

55. We would add that where an agreed statement of fact is submitted, and no viva voce evidence is heard at the hearing, the Hearing Officer is entitled to draw conclusions from it.

56. However, on the issue of work performance versus discipline for neglect of duty, we find that the Hearing Officer’s reasons are inadequate, although we agree with his conclusion. The reasons are deficient in showing the “pathway” to the Hearing Officer’s conclusion that the Appellant engaged in neglect of duty.

57. On this issue, the Hearing Officer wrote the following:

I have listened very carefully to the submissions by counsel and reviewed the cases in regards to this matter. I have earlier read in my decision that I have concluded in my opinion that both officers have breached procedure. This breach of procedure does represent a work performance issue however does it rise to the level of discipline for neglect of duty?

One of the first matters to deal with regarding neglect of duty is whether or not the breach of procedure is a wilful act of disobeying orders and procedure. I concur with the submissions of Defence counsel that these officers did not wilfully choose to ignore orders, rules or directions.

The second matter to address then is whether or not these breaches of procedure rise to the level of discipline for neglect of duty.

Today, as I enter my thirtieth year of policing I can assure this Tribunal that I have given this matter much thought and consideration as I believe it is at the very core of the issue.

Defence counsel have made it very clear that it does not cross the line on clear and convincing evidence from a performance issue to one of misconduct and that it does equal or come to the level of neglect of duty.

The prosecutor has indicated that they are both good officers and have made some mistakes here that do in fact constitute neglect of duty.

In consideration of my decision I have reviewed my notes, all exhibits, brief of authorities and cases submitted by counsel, and a comprehensive review of the transcript from the proceedings on April 20, 2011.

Based on the evidence before me it is clear and convincing that there have been several breaches of London Police Services procedures by both officers in a Suspect Apprehension Pursuit that do constitute misconduct and that do rise to the level of discipline in this Tribunal.

58. The conclusion that the breaches of LPS procedures by both officers in a SAP constitute misconduct is without reasons, other than the Hearing Officer’s assertion about entering his 30th year of policing. At a minimum, the Hearing Officer should have separated the findings for the Appellant from that of Sgt. Gambriel, so that reasons could be expressed as to why he made this finding for each of the two officers.

59. The focus of this appeal is the element of wilfulness and whether it motivated the Appellant’s actions. As confirmed by the Ontario Divisional Court in P.G. v. Ontario (Attorney General), supra, there must be some element of wilfulness in the neglect to make a matter cross the line from a performance issue to a matter of misconduct.

60. The problem with the Hearing Officer’s decision in our view is that although the Hearing Officer determined that the Appellant did not wilfully show neglect, he concluded that the breaches of the SAP procedures constituted misconduct, without discussing the connection between the two.

61. Our review of the decision has led us to conclude that the Hearing Officer erred in his finding of fact that the Appellant did not wilfully choose to ignore orders, rules or directions.

62. Paragraph 9 of the Ontario Regulation 546/99 (in force on August 23, 2009, but subsequently repealed and replaced) read:

A police officer in an unmarked police vehicle shall not engage in a suspect apprehension pursuit unless a marked police vehicle is not readily available and the police officer believes that it is necessary to immediately apprehend an individual in the fleeing motor vehicle or to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle.

That is the only provision in that Regulation dealing with unmarked police vehicles.

63. It is also clear from the ASF the Appellant knew from the outset who the driver was, where she lived and details about the vehicle being pursued. Clearly there were alternatives to initiating and continuing an SAP. There was no need to immediately apprehend the driver. We believe that the Appellant got caught up in the chase and continued in that manner.

64. Exhibit 6 at the hearing is Part 4, Chapter A of the LPS Procedure Manual dealing with a SAP. It bears a revised date of October 23, 2007. The relevant provisions of Exhibit 6 are the following:

i) para 1.B a SAP is discontinued when police officers are no longer pursuing a fleeing motor vehicle for the purpose of stopping the fleeing motor vehicle, identifying it, or an individual in it;

ii) para 1.C (1) a LPS member may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop; (i) if the police officer has reason to believe that a criminal offence has been committed or is about to be committed;

iii) para 1.C (2) members shall, before commencing a SAP, consider alternatives in accordance with this Procedure (described later on in Exhibit 6);

iv) para 1.C(3) members shall, before initiating a SAP, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle, or the need to identify the fleeing motor vehicle or an individual in it, outweighs the risk to public safety that may result from the SAP;

v) para 1.C (4) during a SAP, members shall continually reassess the determination made under paragraph 1.C(3). They shall discontinue the SAP when the risk to public safety that may result from the SAP outweighs the risk to public safety that may result if an individual in the fleeing vehicle is not immediately apprehended, or if the vehicle or a person in it, is not identified;

vi) para 1.D(1)(c) members operating an unmarked police vehicle shall not become involved in a SAP (underlining added for emphasis);

vii) para 1.G (1) alternatives to SAP. Officers are to consider the following when making a decision concerning initiating (or continuing) a SAP: (a) nature of the offence; (b) need for immediate capture vs. risk to public and officers; (c) public and officer safety (d) driver capabilities and limitations; (e) vehicle capabilities and limitations; (f) driving environment (road conditions, presence of pedestrians or other traffic); (g) intelligence gathering; (h) use of surveillance; (i) tactical communications; (j) tactical use of other police vehicles; (k) physical contact of a police vehicle and a stopped vehicle for the purposes of pinning it, if the driver is intending to use it to flee; and (l) use of tire deflation device.

viii) para 1.G(2) the final paragraph states: “The most important factors in considering alternatives to a SAP are the officer’s use of common sense, self-discipline, and professionalism.

ix) para 10.A the decision to discontinue a SAP may be made by anyone involved in the SAP, when conditions warrant. Nothing precludes an officer, after a pursuit has been discontinued, from continuing along in a safe manner, and at the normal speeds for general patrol, the route taken by the fleeing vehicle, in order to determine whether any incident has occurred subsequent to the pursuit being discontinued; and

x) para 10.B “Strategic Following Technique”. Members can encourage pursued drivers to stop of their own volition by using a “strategic following technique”.

The term “strategic following technique” is undefined and there is no elaboration as to the nature of the technique by way of example. Nevertheless one can draw the conclusion that the wording contained in paragraph 10.A is what is meant.

65. Exhibit 7 is LPS Routine Order 03-59 with an effective date of May 7, 2003. It is a clarification on SAPs. It indicates that the, Policing Standards A1-008 under the Act outlines marked general patrol requirements or specifications for police vehicles involved in SAPs. The final paragraph reads:

The current LPS Procedure, Part 4, Chapter A, Section D(1)(c) indicates: “Members operating an unmarked police vehicle shall not become involved in a suspect apprehension pursuit.” The only LPS vehicles permitted to engage in SAP’s will be clearly marked vehicles which comply with the above Policing Standards specifications.

Those specifications set out the colour, striping, crest and emergency equipment of a marked police cruiser.

66. The Appellant had been a member of the Traffic Management Unit and on patrol since he became an officer in mid-2005, according to his employee profile entered as exhibit 4 at the hearing. The same documents show the Appellant had taken many courses or been certified in many aspects of policing including SAP’s.

67. Exhibit 10 is a schedule of an in-service course attended by the Appellant in mid-2005. Attached to it is an outline of the 45 minute SAP portion of the day long course. Also attached is the narrative to a Powerpoint presentation on SAP’s. Powerpoint slides 5 and 6 read as follows:

Powerpoint 5 Subdued crest traffic car.

The traffic car is not a marked police cruiser. Policing Standards 2002 says that “a marked general patrol vehicle only is to be used for Suspect Apprehension Pursuits.”

S.8

The SAP Regulation allow an unmarked car to become involved in a pursuit if a marked vehicle is not readily available and officer believes that it is necessary to apprehend someone in the fleeing vehicle or identify someone in the vehicle.

HOWEVER>>>>>

Part 4 Chapter D

Our own LPS policy prohibits unmarked vehicles from becoming involved in a pursuit (underlining added for emphasis).

Powerpoint 6 Marked cruisers must have

• Police package-compact and sub-compact not allowed
• Solid white in colour – Police written on side with reflective
• 360° lighting
• 100 watt minimum forward facing siren
• PA system

What are the concerns with using an unmarked car?

Can’t see subdued crest, people don’t realize it’s a police car, can’t see lights

68. It is clear from the ASF that the Appellant was operating a police cruiser with subdued markings. It is also clear that he pursued the Subject Vehicle, the Hearing Officer having determined that such pursuit was a SAP, a determination with which we agree. It is also noted that Sgt. Gambriel indicated in paragraph 27 of the ASF that he was the NCO monitoring the SAP.

69. “Wilful” is defined as intentional or deliberate in The Dictionary of English Law by Jowitt. It is also defined as asserting or disposed to assert one’s own will against persuasion, instruction or command, and done on purpose or wittingly; purposed, deliberate, intentional – The Shorter Oxford English Dictionary.

70. We find that the Appellant knew or ought to have known from his training that he breached LPS policy and training in conducting a SAP in an unmarked cruiser. With that knowledge, the Appellant could only have been engaged in a deliberate or intentional breach of policy, which accordingly was wilful. As such the Appellant is guilty of Neglect of Duty as charged.

71. Mr. Donald asked the Panel to apply s. 42(1) of the Act and recognize the Appellant’s use of discretion in this case, notwithstanding any breach of policy and/or procedure. With respect, where a policy, or a procedure, or a standard is absolute, there is a good reason for it, in this case, public safety.

72. In this situation, LPS procedure and policy are absolute, namely that an unmarked car such as the one the Appellant was driving is not to become involved in an SAP. It is not a circumstance open to the use of discretion.

73. The rule, when absolute, must be followed and where it is not so followed, discipline for a breach is the consequence.

74. For these reasons the appeal is dismissed.

DATED AT TORONTO THIS 23rd DAY OF MARCH, 2012

David C. Gavsie Chair

Noëlle Caloren Member