ONTARIO CIVILIAN POLICE COMMISSION

DATE: June 28, 2017

CASE NAME: DAVE DEBOER AND ONTARIO PROVINCIAL POLICE

FILE: OCPC-16-ADJ-017

In the Matter of an Appeal Under Section 87 (1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

PC Dave Deboer

APPELLANT

-and-

Ontario Provincial Police

RESPONDENT

DECISION*

Panel:

D. Stephen Jovanovic, Associate Chair John Kromkamp, Member

Hearing Date:

17 May 2017

Representatives:

James Girvin, Counsel for the appellant Claudia Brabazon, Counsel for the respondent

I. Introduction

1. This appeal arises from the decision of Superintendent Robin

D. McElary-Downer (“the Hearing Officer”) dated March 17, 2016 where she found the appellant guilty of one count of insubordination pursuant to section 2(1)(b)(ii) of the Code of Conduct, Ontario Reg. 268/10 (“the Code”) under the Police Services Act (“the PSA”).

2. In a second decision dated August 2, 2016 the Hearing Officer assessed a penalty of the forfeiture of 24 hours. This penalty is not under appeal and will stand if the finding of guilt is upheld.

3. The “edited” particulars to the charge as framed by the Hearing Officer were:

On October 14, 2014, he was ordered by Detective Sergeant (D/Sgt.) Collard to respond to questions in an ordered interview relating to a Police Services Act (PSA)

investigation. He refused to answer.

He knew or reasonably ought to have known his actions were insubordinate.

II. Disposition

4. For the reasons that follow, the Commission confirms the decision of the Hearing Officer.

III. Background

5. On April 14, 2014 the appellant was involved in a physical altercation with his step-daughter J.B. who barricaded herself in her bedroom and then called 911. Officers from the respondent answered the call.

6. On April 23, 2014 Sgt. Collard of the respondent’s Professional Standards Bureau (“the PSB”) began an investigation into the altercation. After interviewing J.B., he was satisfied that an assault had occurred. However, he did not proceed with criminal charges as J.B. initially refused to cooperate. She did provide a detailed statement and eventually agreed to participate in the disciplinary process.

7. Sgt. Collard, on May 5, 2014, issued to the appellant a written order to provide a duty report and requiring him to attend for a duty interview. This interview took place on July 11, 2014 at which time Sgt. Collard read the following preamble to the appellant:

As an investigator with PSB, I am now ordering you to answer the questions

regarding the allegation made against you, discreditable conduct. Your answers must be truthful and forthright. Any answers you give will be considered to be compelled, and neither the answers nor the fruits of any investigation arising from the answers can be used against you in any criminal proceeding. However, the answers you give may be used against you in an internal disciplinary proceeding under Part V of the Police Services Act. Further if you refuse to answer any questions put to you, you may be charged with insubordination under the Police Services Act………

8. The appellant refused to answer any questions, on the advice of his lawyer. The appellant was subsequently given an order to attend for a second interview as an opportunity to “mitigate” his insubordination. He did attend for the second interview but again refused to answer any questions.

9. Sgt. Collard testified that his authority to order the interview emanated from a PSB directive dated in 2013 which reads in part:

At the request of a superior, an employee shall provide a duty report in writing or appear in person to answer questions from the superior. More than one duty report or interview may be necessary at the discretion of the superior.

Statements made by the employee in writing in the duty report or made orally to a superior in answer to questions of a superior as part of the duty report are admissible

against the officer at any discipline hearing that may occur as a result of the PSB investigation.

10. This directive was part of the OPP Professionalism policy. The charge of insubordination arose from the appellant’s second refusal to answer questions as ordered.

IV. Issues

11. The appellant submitted the following issue for our determination:

Did the Hearing Officer commit an error in law by finding that the officer had the legal authority to order the appellant to answer questions regarding his off-duty conduct?

12. The appellant further submitted that as the issue was a pure question of law, the standard of review of the decision was correctness. The respondent submitted that as the Hearing Officer’s decision was based on findings of mixed fact and law, reasonableness was the appropriate standard of review.

13. The parties agreed that there is no decision, from any forum, directly on point. They disagreed as to what the practices were of other police services when questioning or trying to question officers about conduct that may contravene the Code occurring while they were off-duty.

V. Analysis

14. The Hearing Officer began her analysis by adapting the four branch test established to consider if an officer has been guilty

of insubordination as set out in Orr and York Regional Police, OCCPS, 2001. She wrote that she had to determine the following:

1. Did Sgt. Collard issue an order to PC Deboer?

2. If Sgt. Collard issued an order, was it lawful?

3. If the order was lawful, did PC Deboer disobey, neglect, or omit to carry out the order?

4. If PC Deboer disobeyed the order, did he have a lawful excuse for doing so?

5. The appellant accepts that an order was issued and does not question that the authority to issue the order was properly delegated to Sgt. Collard. He submits that as the order was unlawful, questions 3 and 4 above need not be answered.

6. The Hearing Officer acknowledged that the PSA does not expressly state that a police officer must answer questions posed by a superior officer concerning off-duty conduct. She then considered the OPP Professionalism policy and wrote the following:

I find this policy indisputably directs an OPP officer to answer questions in regard to conduct. It does not distinguish between on and off-duty conduct, so logically, it points to both. The lawfulness of such a policy order is entrenched in the Commissioner’s statutory duty to ensure discipline is maintained and investigate complaints, as stated in these sections of the PSA:

41(1) The duties of a chief of police include,

ensuring that members of the police force carry out their duties in accordance with

this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force.

66(1) The chief of police shall cause every complaint referred to him or her by the Independent Police Review Director under clause 61(5)(a) to be investigated and the investigations to be reported in a written report.

17. The Hearing Officer’s ultimate conclusion was as follows:

Based on my analysis, I find the status an officer holds in society is the determinate factor which dictates the compellability of a statement, not the time of day when the misconduct occurred. PC Deboer was off-duty when his misconduct occurred and the prosecutor established the nexus between his conduct and the reputation of the OPP. The prosecutor also established PC Deboer’s conduct breached a police officer’s fundamental duty to keep the peace. The case authorities state that as long as a police officer is employed as such, they must comply with the legitimate orders of their superiors. This does not change regardless of whether the conduct occurred on or off-duty.

18. The first issue for us to decide is the standard of review to be applied to the decision of the Hearing Officer. It is now established that the standard of review on questions of fact is reasonableness, correctness on questions of law and reasonableness on questions of mixed fact and law: Ottawa

Police Services v. Diafwila, 2016 ONCA 627.

19. In this matter, the essential facts were not in dispute. Indeed the appellant did not appear at the hearing. He twice refused to comply with an order that he attend for an interview about his off-duty conduct that prompted a call to 911 and a police response.

20. We find that the Hearing Officer’s consideration as to whether the order given to the appellant was lawful is a question of law and it should be reviewed on a standard of correctness.

21. The appellant, like all police officers in the province, is not immune from facing charges of misconduct arising from off- duty conduct. Section 80(2) of the PSA reads:

(2) off-duty conduct – A police officer shall not be found guilty of misconduct under subsection

(1) if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force.

22. The rationale underlying this section is set out in Horton and Ontario Provincial Police, 2015 ONCP 16, where the Commission wrote the following:

It is well settled that a police officer is held to a higher standard of conduct than a member of the public not only while being on duty but also when off-duty. That is so by reason of the office held, the powers granted and the need to maintain the public trust in and respect for the police service.

23. The appellant’s original position was that there is no authority, statutory or at common law, that requires a police officer to answer questions about his off-duty conduct. That position became somewhat equivocal during the course of the oral argument before us in response to questions put to his counsel. He conceded that under certain circumstances off- duty officers would have a duty to provide information but not in other situations. Essentially, if the officer’s off-duty conduct were the subject of the investigation, there was no duty to respond. We find that position to be untenable.

24. What if the officer were off-duty, witnessed a robbery, refused to become involved, then refused to provide a statement as to what he observed or his refusal to assist because he was off- duty? What if an off-duty officer witnessed another officer mistreating a civilian and again refused to get involved or answer questions as to what he observed? The appellant’s counsel did not respond to this scenario when asked. What if an off-duty officer witnessed a motor vehicle accident involving a family member who was possibly impaired? Could the officer refuse to provide a statement? What if the incident observed by the off-duty officer was a serious domestic assault by a family member in which the officer intervened?

25. The Hearing Officer found the authority for the order given to the appellant by Sgt. Collard in the OPP Professionalism policy set out earlier in this decision. She also found that the lawfulness of the policy was “entrenched in the Commissioner’s statutory duty to ensure discipline and investigate complaints”.

26. The Hearing Officer cited sections 41(1) and 66(1) of the PSA as the statutory basis to support the policy. We acknowledge her reliance on section66(1) was misplaced as it only deals

with complaints referred to by the Independent Police Review Director. However, section 76 of the PSA which provides the authority for the Commissioner to investigate the conduct of an officer supports her position.

27. The Code sets out what actions by an officer may amount to misconduct. Some of these actions could clearly relate to off- duty conduct. By way of an example, section 2(1)(f) refers to Corrupt Practice if an officer offers or takes a bribe. If the appellant’s position were correct, then an officer offering or taking a bribe while on duty could be compelled to give a statement or risk a charge of insubordination. However, if the same officer waited five minutes after the shift was over and offered or took the bribe after he or she walked out of the division or detachment then no statement could be compelled.

28. An interpretation of the law that would support such an unsatisfactory result would be inconsistent with the duty of the Commissioner and the officer.

29. We therefore find that the Hearing Officer was correct in law in concluding that the order given to the appellant was lawful and that he was guilty of insubordination.

VI. Decision

30. Pursuant to section 87(8)(a) of the PSA the Commission confirms the decision of the Hearing Officer finding the appellant guilty of insubordination* and the penalty imposed.

DATED at Toronto, this 28th day of June 2017.

*Changed from “contempt”

D. Stephen Jovanovic Associate Chair

John Kromkamp, Member