ONTARIO CIVILIAN POLICE COMMISSION
OCPC#15-04
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
CONSTABLE KEVIN DRAKE APPELLANT
-and-
TORONTO POLICE SERVICE RESPONDENT
DECISION
Panel: Jacqueline Castel, Member Stephen Jovanovic, Member
Hearing Date: January 29, 2015 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
Lawrence Gridin, Counsel for the Appellant, Constable Drake Sharon Wilmot, Counsel for the Respondent, Toronto Police Service
INTRODUCTION
Constable Kevin Drake (the “Appellant” or “Const. Drake”), a member of the Toronto Police Service (the Respondent” or the “Service”), is appealing the decision of June 25, 2014 of Superintendent Debra Preston (the “Hearing Officer”) finding him guilty of one count of Insubordination under the Code of Conduct set out as a Schedule to Ontario Regulation 268/10 (the “Code of Conduct”) enacted under the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “Act”).
Const. Drake was convicted of Insubordination for refusing to comply with an order from his superior to change the finding of fault from a civilian driver to a police officer on a Motor Vehicle Collision Report (“MVCR”). He refused to comply with the order because he honestly believed that the civilian driver was at fault.
The appeal involves two main issues. The first issue is one of procedural fairness and natural justice. The second issue is substantive: Can a superior officer lawfully order a police officer to reach an investigative conclusion which the officer honestly believes to be untrue or inaccurate?
DECISION
- The appeal is allowed for reasons which follow.
BACKGROUND
Const. Drake has been a member of the Service since 2000. He was the divisional traffic officer for 33 Division at all material times. Other than this incident, he has no history of misconduct.
Const. Drake was assigned to investigate a motor vehicle collision which occurred on February 1, 2013. The collision involved Police Constable Gould (“Const. Gould”), who was driving a marked Service scout vehicle, and a member of the public.
Const. Gould was responding to a priority one call. His vehicle collided with the vehicle of a civilian driver as he entered the intersection of Sheppard Avenue East and Consumers Road. Const. Gould had come to a complete stop before entering the intersection and had activated his vehicle’s lights and sirens. Const. Gould was facing a red light and the civilian driver was facing a green light when she also entered the intersection and the accident happened.
As part of the investigation, Const. Drake attended the scene of the accident, reviewed Const. Gould’s in-car camera footage, took statements from the drivers involved in the accident and spoke with independent witnesses. After reviewing all of the information, he came to the conclusion that the civilian driver was at fault because the driver failed to yield to the emergency vehicle driven by Const. Gould.
Const. Drake completed the MVCR which included his conclusion of fault for the accident. The civilian driver was charged with Fail to Stop on Right for Emergency Vehicle contrary to section 159(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended.
In accordance with the Service’s Procedure 07-05, Const. Drake’s investigation was reviewed by a number of supervisors within his division who initially all concurred with his conclusion that the civilian driver was at fault. The Acting Unit Commander, Insp. Rick Hegedus, signed off on the MVCR on February 4, 2013.
The MVCR was subsequently reviewed by S/Sgt. McBratney, from the Traffic Services Reconstruction Squad of Traffic Services. S/Sgt. McBratney disagreed with Const. Drake’s conclusion and believed that Const. Gould was most at fault for the accident. In his view, the designation of the driver at fault on the MVCR should be changed and the Provincial Offence Notice issued to the civilian driver should be withdrawn. He documented his findings on a TPS649, which he submitted to his supervisor, Insp. Norrie of Traffic Service. Insp. Norrie advised Insp. Hegedus of S/Sgt. McBratney’s findings and told him the MVCR would need to be changed.
Const. Drake was provided with a copy of S/Sgt. McBratney’s report (TPS649) and directed by Insp. Hegedus to make the changes. Const. Drake told Insp. Hegedus that he disagreed with S/Sgt. McBratney’s conclusions and wanted to respond explaining the basis for his opinion. Insp. Hegedus encouraged this approach.
Const. Drake re-examined the evidence and conducted legal research. He also spoke to the civilian’s insurance company (which had found the civilian to be at fault) and to one of the prosecutors at the court where the civilian’s charge was being dealt with (who told him there was a reasonable prospect of conviction on the charge for failure to stop for an emergency vehicle). Const. Drake made some minor corrections to the report but did not change the determination of fault. He submitted a TPS649 to Insp. Hegedus explaining his reasoning and why the determination of fault in the MVCR he prepared should stand. Insp. Hegedus forwarded the document to S/Sgt. McBratney at Traffic Services.
Insp. Hegedus subsequently told Const. Drake that if he submitted a request to the prosecutors to have the charge against the civilian withdrawn, he would not need to change the MVCR. Const. Drake felt that this was a reasonable compromise and submitted that request. However, the prosecutor denied his request and the charge against the civilian was not initially withdrawn.
On April 13, 2013, Insp. Hegedus ordered Const. Drake to change the MVCR to show Const. Gould as being at fault. After seeking advice from his association and lawyer, Const. Drake informed Insp. Hegedus that he would not change the MVCR because he disagreed with S/Sgt. McBratney’s conclusion and interpretation of the Highway Traffic Act and honestly believed his determination of fault to be accurate.
On April 19, S/Sgt. Gottschalk reissued the order to change the MVCR and warned that if he failed to comply, he would be charged with Insubordination. Const. Drake responded, “I cannot in good conscience change the report.” He also reiterated why he believed that Const. Gould was not at fault.
On October 22, 2013, Const. Drake was served with a Notice of Hearing charging him with Insubordination for disobeying Insp. Hegedus’ order.
By the time of the disciplinary hearing, the prosecution conceded that S/Sgt. McBratney’s interpretation of the Highway Traffic Act, which was the basis of his opinion on fault in the collision, was flawed. Regardless, the prosecution and defence both took the position that the determination of fault was not relevant and no finding would have to be made as to who was at fault for the collision.
The Hearing Officer stated in her decision that there was nothing negligent about Const. Drake’s investigation and that “he went above and beyond the scope of a normal investigation.” She also accepted that Const. Drake had an “honest belief” in his findings.
However, the Hearing Officer found that Const. Drake disobeyed a lawful order and had no lawful excuse for the disobedience. As such, she found him guilty of Insubordination.
ISSUES
There are two issues in this appeal:
Did the Hearing Officer breach natural justice by making a finding of fact on the issue of liability for the motor vehicle collision after the parties explicitly agreed that that this issue was not relevant?
Did the Hearing Officer err in finding the order lawful?
Given our finding below that the order was not lawful, the third issue raised by the Appellant, whether the Hearing Officer erred in finding that Const. Drake had no lawful excuse for disobeying the order, became moot.
REASONS
Standard of Review
The standard of review for the Commission with respect to the Hearing Officer’s factual findings is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 (SCC).
The standard of review with respect to the Hearing Officer’s interpretation of the law is correctness: see Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.)
The facts in this case were not in dispute. Importantly, it was not disputed that Insp. Hegedus ordered Const. Drake to change his investigative conclusion on the MVCR and that Const. Drake refused to comply with this order. It was also not disputed that Const. Drake conducted a diligent and thorough investigation and held the honest belief that his investigative conclusion was true and accurate.
The central substantive issue before the Panel is whether the order to change the conclusion of the report was lawful. The appeal turns on a question of law: what constitutes a lawful order and was the order issued to Const. Drake lawful? The correctness standard of review therefore applies.
Did the Hearing Officer Breach Natural Justice?
The Hearing Officer acknowledged in her decision that at the commencement of the hearing, both the prosecutor and defence submitted that it was not necessary to determine who was right or wrong with respect to the motor vehicle collision. She wrote: “Although I understand their position, the determination of lawfulness starts at the point of fault for the collision as this dictates the actions of all involved members moving forward.”
Mr. Gridin submitted that the Hearing Officer denied the Appellant natural justice when she made a finding of fault with respect to the motor vehicle collision, notwithstanding that both parties took the position that it was not necessary to determine who was right or wrong in the collision. According to Mr. Gridin, the procedural unfairness stemmed from the fact that the defence had to meet an additional case, namely careless driving and the defence was only expecting to meet the case of Insubordination.
Mr. Gridin argued that if the defence knew that the case was going to turn on who was at fault for the collision, it would have called additional witnesses (e.g., Const. Gould, civilian witnesses to the accident, possibly an expert on traffic collisions), and the oral submissions and authorities tendered would have also addressed the issue of fault.
Ms. Wilmot submitted that there was no breach of procedural fairness when the Hearing Officer made a finding of fault with respect to the collision. She argued that the Hearing Officer is not bound by the submissions of counsel, provided that she affords them appropriate consideration and provides clear reasons for not following them.
In this case, Ms. Wilmot submitted, the Hearing Officer gave cogent reasons for undertaking an analysis of who was at fault for the collision, notwithstanding the position of the prosecution and defence that such a determination was not relevant.
We agree with Ms. Wilmot that the Hearing Officer was not necessarily bound by the position of the defence and prosecution that the issue of fault in the motor vehicle accident was not relevant. However, we disagree that all she needed to do was provide clear reasons for her disagreement in her decision.
From the standpoint of procedural fairness, it was too late for the Hearing Officer to provide her reasons in the decision, as she did not afford the Appellant with an opportunity to address the issue of liability in his defence. The Appellant presented his defence on the assumption that the issue of liability for the collision would not be relevant to the Hearing Officer’s decision on Insubordination.
The breach of procedural fairness would be less egregious if the issue of liability had little or no bearing on the central issue in the case, namely the lawfulness of the order. However, the Hearing Officer’s finding that the order was lawful was predicated on her finding that the police officer, not the civilian, was at fault for the motor vehicle collision.
To avoid a breach of procedural fairness, the Hearing Officer needed to notify the parties at the hearing, before they presented their case, that she disagreed with their position that liability was not relevant and intended to make a finding on liability. At this point, the parties could have made submissions explaining their position as to why the issue was not relevant. They also could have requested an adjournment so that they could call evidence, produce authorities and make submissions on this issue of liability for the collision.
In failing to notify the parties at the hearing that she disagreed with their position and would be making a finding on the liability issue, the Hearing Officer denied the Appellant an opportunity to present a full defence to the case against him, thereby breaching procedural fairness and natural justice. On this basis alone, the conviction for Insubordination cannot stand.
Did the Hearing Officer err in finding the Order Lawful?
The Hearing Officer began her analysis on the lawfulness of the order by stating that, “[f]or an order to be lawful, it has to be supported by a statute.” Next, she stated that “the determination of lawfulness [of the order] starts at the point of fault for the collision …”
The Hearing Officer proceeded to analyze the traffic collision, over the course of the next three pages of her decision, and ultimately made a finding that “PC Gould was at fault for the collision.” Based on this finding with respect to traffic collision, she concluded that the order issued by Insp. Hegedus was lawful:
Given the above factors and reviewing all exhibits, I find that PC Gould was at fault for the collision. The obligation is for PC Gould to proceed through the intersection when it is safe to do so, utilizing the appropriate amount of care and caution. He made himself as visible as possible but, in this case, the onus was on PC Gould to prevent the collision.
As a result of the above, I find the order issued by Inspector Hegedus and reinforced by S/Sgt Gottschalk to be a lawful order. PC Drake did not obey this direction, therefore, he disobeyed a lawful order.
If we were to accept the Hearing Officer’s position that the order was lawful because she found that Const. Gould was at fault in the traffic accident (and therefore Const. Drake’s investigative conclusion was wrong), then the reverse would also be true, as was conceded by Ms. Wilmot. If the Hearing Officer determined that the civilian was at fault (and therefore Const. Drake’s investigative conclusion was correct), then the order would be unlawful. Using the same logic, if a provincial court, which has jurisdiction to hear matters under the Highway Traffic Act, determined that the civilian was at fault, the order would be unlawful. This line of reasoning is problematic, and we agree with Mr. Gridin that the issue of fault for the traffic collision was not relevant to the lawfulness of the order.
The legal test for whether or not an order is lawful was summarized by the Divisional Court in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1975), 1974 CanLII 702 (ON HCJDC), 5 O.R. (2d) 285 at pp. 10-1
An order is unlawful if it requires the constable to do an act that would be unlawful, such as to enter premises without a search warrant, to assault a citizen and the like. It would also be an unlawful order if it is clearly not within the authority of the person issuing it under the Regulations governing the force, or if it contravenes a specific Regulation made under proper authority.
Ms. Wilmot referred to this test in her factum and oral submissions, and applied it to the facts of the present case. However, the Hearing Officer did not consider or analyze whether the order met this test. Specifically, she did not address or consider whether the order required Const. Drake to do something which would contravene a law or regulation. She also did not address or consider whether the order was with the authority of Insp. Hegedus. Except for making passing mention of the fact that for an order to be legal it must be supported by a statute, her analysis of whether the order was lawful related solely to who was at fault in the traffic collision.
In basing her conclusion that the order was lawful on her finding of fault in the traffic collision and in failing to consider whether the order met the requirements for a lawful order, as set out in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association, supra, the Hearing Officer erred in law.
Was the order lawful?
Having found that the Hearing Officer did not apply the correct law, we now turn to a consideration of whether the requirements for a lawful order, as set out in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association, supra, were met.
We do not dispute, and neither did the Appellant, that it is lawful for a superior officer to order a police investigator to conduct or terminate an investigation. It is also lawful for a superior officer to give orders relating to the scope of the investigation and the resources which may be deployed in respect of the investigation. In addition, a superior officer can lawfully order an officer to consider other investigative opinions or approaches. None of these orders would cause a police officer to commit an act which is unlawful.
The order in this case did not deal with the scope of the investigation or any deficiencies in the way in which the investigation was conducted. It was accepted that Const. Drake conducted a thorough and diligent investigation of the collision. In fact, the Hearing Officer acknowledged at page 23 of her decision that Const. Drake “went beyond the scope of a normal investigation and spoke with a prosecutor, reviewed case law and spoke with the civilian driver’s insurance underwriter.” The order dealt solely with the investigative conclusion and essentially directed Const. Drake to change his opinion as to that conclusion.
This was also not a case where the officer’s investigative conclusion was out in left field or absurd. Initially, Const. Drake’s report, including the investigative conclusion, was approved by three supervisors including Insp. Hegedus. Const. Drake’s conclusion was also consistent with the observations of independent civilian witnesses. When Insp. Hegedus received S/Sgt. McBratney’s report, he supported Const. Drake’s offer to investigate the matter further and write a response to S/Sgt. McBratney explaining the basis for his investigative conclusion.
The Hearing Officer suggested in her decision that S/Sgt. McBratney’s analysis brought to light new evidence. This however was a misapprehension of the evidence. S/Sgt. McBratney’s report relied on Const. Drake’s investigation but advanced a different interpretation of the Highway Traffic Act. Moreover, at the time of the hearing, the prosecutor acknowledged that S/Sgt. McBratney’s interpretation of the Highway Traffic Act was flawed.
Insp. Hegedus’ order had the effect of forcing Const. Drake to attest to the accuracy of an investigative conclusion, by signing his name to the MVCR, when he held the honest belief that the conclusion was incorrect. The MVCR could be introduced into evidence in various types of legal proceedings, and unless Const. Drake was called as a witness to speak to the document, anyone reading it would assume that the person signing it believed in its accuracy. Testifying in court about the MVCR would also place Const. Drake in the awkward position of having to admit under oath that he was ordered to change his investigative conclusion on the MVCR and that he did not believe the investigative conclusion on the report to be true and accurate.
Compliance with Insp. Hegedus’ order, given Const. Drake’s honest belief that his own investigative conclusion was correct, could put the Appellant in the position of committing the offence of Deceit. Section 2 (1) (d) (i) of the Code of Conduct provides that any police officer commits misconduct if he or she engages in deceit, in that record. Complying with Insp. Hegedus’ order to change his conclusion as to fault in the MVCR placed the Appellant in the position of knowingly making a false statement in the record and, arguably, committing an act tantamount to Deceit under the Code of Conduct. This negates the lawfulness of the order, based on the test set out by the Divisional Court in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association, supra.
Rather than forcing Const. Drake to sign his name to a document he did not believe was truthful or accurate, Insp. Hegedus could have had the MVCR completed by another officer. We understand that this is in fact what happened when Const. Drake refused to comply with the order.
Where an officer has conducted a diligent and thorough investigation, and has an honest belief in his investigative conclusions, the officer cannot be lawfully ordered to change his conclusions. This compromises the integrity of the officer’s investigation, and, as explained above, puts the officer in the position of signing his or her name to a document they do not believe to be truthful, thereby committing an act tantamount to Deceit under the Code of Conduct.
CONCLUSION
- For the above reasons, we answer questions 1 and 2 in paragraph 21 in the affirmative.
Hearing Officer’s finding of guilt be substituted with an acquittal.
DATED AT TORONTO, THIS 17th DAY OF FEBRUARY, 2015
Jacqueline Castel Member, OCPC
Stephen Jovanovic Member, OCPC