ONTARIO CIVILIAN POLICE COMMISSION
Safety, Licensing Appeals and Standards Tribunals Ontario
COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Sgt. Jim (James) Neild
Appellant
and
Ontario Provincial Police
Respondent
DECISION
Panel:
D. Stephen Jovanovic, Associate Chair Jacqueline Castel, Member Marisa Victor, Member
Appearances:
James Girvin, counsel for the appellants Andrea Huckins, counsel for the respondent
Place and date of hearing:
Toronto, Ontario September 27, 2017
Introduction
1This appeal arises from the decision of Superintendent Robin D. McElary-Downer (the Hearing Officer) dated August 15, 2016 wherein she found the appellant guilty of one count of neglect of duty, contrary to section 2(1)(c)(i) of the Code of Conduct under the Police Services Act (the PSA).
2The edited particulars to the charge in the Notice of Hearing (the NoH) were as follows:
On February 7, 2015, while on-duty at the Kenora OPP Detachment, he responded to a call for service in Sioux Narrows involving the death or possible death of a citizen. He arrived on February 8, 2015 at approximately 1:42 a.m.
It is alleged as the supervisor, he failed to properly supervise the investigation including that he:
Failed to ensure the scene was secured;
Failed to ensure all possible evidence was gathered;
Failed to make thorough notes;
Failed to recognize Forensic Identification Services (FIS) were required;
Failed to ensure FIS were requested;
Failed to ensure all persons with information about the incident or deceased were interviewed;
Cancelled the Technical Collision Investigator (TCI), notwithstanding the deceased was located on the roadway with no other evidence and despite Detective Sergeant (D/Sgt.) Duggan telling him to “ensure that the TCI attended to rule out the deceased was not struck by a vehicle”;
Was told about tire tracks located in the snowbank near where footprints and a disturbance in the snow were located and failed to investigate further; and
Told PC Wojtowicz to inform the family the incident did not appear suspicious and the deceased may have died due to natural causes.
3The appellant does not appeal the penalty subsequently imposed by the Hearing Officer.
Disposition
4For the reasons that follow, the conviction is confirmed.
Background
5The appellant had been an officer with the respondent since 1998 and a Sgt. Since 2012. He was the shift supervisor at the Kenora Detachment on the night of February 7, 2015 when he received a call about a possible fatal motor vehicle accident in Sioux Narrows involving a pedestrian.
6Upon receiving that call for service, he assigned two officers, PC Clark and PC Engstrom, who was the Scene of Crime Officer (the SOCO), to attend the scene. Upon arriving at the scene at 12:23 a.m. they spoke to the paramedics who advised that they did not believe there had in fact been a motor vehicle accident. The deceased, later identified as Rick Roach, was still on the roadway.
7The appellant also assigned PC Cain, the TCI, to assist in the investigation. However, shortly afterwards, the appellant was advised by PC Engstrom that he did not see evidence of the involvement of a motor vehicle as was originally reported. The appellant relayed this information to D/Sgt. Duggan who directed him to have PC Cain attend the scene to rule out whether Mr. Roach had been struck by a car.
8The appellant arrived at the scene shortly before 2 a.m. on the 8th, spoke to PC Engstrom and Clark, walked through the scene and also came to the conclusion that there was no evidence to suggest the involvement of a motor vehicle. Contrary to the direction he had received form D/Sgt. Duggan he contacted PC Cain, who was still about twenty minutes away and told her that it was not necessary for her to attend the scene.
9PC Cain asked the appellant to have an officer attempt to mark the point where Mr. Roach was found and take photographs of the area. No officer in fact marked that point.
10PC Engstrom interviewed at least two potential witnesses. He discovered that Mr. Roach had been at a birthday party in the vicinity and left at about 10:30 p.m. on the 7th. His body was found by Albert Weibe who had also been at the party and was the person who called for assistance.
11The appellant testified that when he told PC Cain that it was not necessary for her to attend the scene he was 100% sure that a motor vehicle was not involved in the death of Mr. Roach.
12At the post-mortem examination conducted on February 9th, it was determined that the injuries to Mr. Roach (and therefore his death) were likely caused by a motor vehicle. PC Cain then attended the scene with PC Engstrom who could not tell her exactly where Mr. Roach had been found as the character of the scene had changed after the roadway was ploughed.
13Despite the subsequent investigation, it was never determined who caused Mr. Roach’s death.
Issues
14The appellant submitted that the Hearing Officer misapprehended and misapplied the evidence; misapplied the law as it related to neglect of duty and; having incorrectly assessed the evidence, committed a legal error in finding that there was sufficient evidence to establish guilt on a clear and convincing standard.
15In our view, as set out by the respondent, the issues on this appeal may be fairly stated as follows:
I) What is the standard of review to be applied to the decision of the Hearing Officer?
II) What is the legal test for finding neglect of duty and was it correctly applied by the Hearing Officer?
III) Was there clear and convincing evidence to support the conviction?
Analysis
I) What is the standard of review to be applied to the decision of the Hearing Officer?
16The standards of review to be applied by the Commission in an appeal from the decision of a Hearing Officer are now well settled. The standard of review is reasonableness on questions of fact and correctness on questions of law: Ontario Provincial Police v. Purbrick, 2013 ONSC 2276 627, at paras. 53-63. Questions of whether the facts satisfy a legal test are questions of mixed fact and law, are also to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 53
17In assessing the reasonableness of a decision, the question to be asked is whether there is “justification, transparency and intelligibility within the decision-making process” and whether “the decision fall[s] within a range of possible, acceptable outcomes which are defensible in respect of the facts and law?” See Dunsmuir, at para. 47.
II) What is the legal test for finding neglect of duty and was it properly applied by the Hearing Officer?
18The Hearing Officer adopted the following quotation from the Commission’s decision in Gottschalk v. Toronto Police Service, 2003 CanLII 85796 (ONCPC) in her analysis of what constituted neglect of duty:
The charge of neglect of duty is a serious charge under the Code of Conduct. To be convicted of this charge, it must be shown that:
The member was required to perform a duty, and the member failed to perform this duty because of neglect, or did not perform the duty in a prompt and diligent manner.
Once proven, the member, to avoid discipline, must show that:
[The member] had a lawful excuse for not performing the duty in the prescribed manner.
…It is not an absolute offence…there must be either “wilfulness” or a degree of neglect which would make the matter cross the line from a mere performance consideration to a matter of misconduct”.
19The Hearing Officer also cited the following passage from the decision in Mousseau and the Metropolitan Toronto Police Force, 1981 CanLII 3042 (ONCPC):
The reasonableness of an officer’s conduct must be examined in light of the circumstances as they exist at a particular time. An officer is expected to use discretion and judgment in the course of his duties on many occasions. The police officer’s discretion or judgment ought not to be examined scrupulously by the benefit of hindsight, but it is essential to examine the circumstances under which the officer exercised discretion or independent judgment to see what discretion was warranted.
20While there is no dispute that the Hearing Officer accurately stated the law, the appellant takes the position that she misapplied the law. In particular, he submits that the Hearing Officer placed undue reliance on certain checklists introduced into evidence which were not set out in the NoH.
21The first witness to testify on behalf of the prosecution was Sgt. Amy Ramsay, a 20 year veteran of the OPP, who was at the time of the hearing a senior policy writer/analyst with the Policy Procedures Unit. Four checklists were introduced through her testimony. These were the Sudden Death Checklist, the Deceased Body Checklist, the Crime Scene Checklist and the Death Notification Checklist. All of these checklists were referenced in the Hearing Officer’s decision.
22Sgt. Ramsay was clear in her evidence that while the checklists referred to the first officer arriving at the scene, it was the responsibility of the supervising officer to ensure that the outlined steps were completed. Sgt. Ramsay acknowledged that officers were not necessarily required to follow each and every step on the checklists as there was room for the exercise of discretion. She also agreed that officers were not to be held to a standard of perfection providing they could justify their actions.
23The Hearing Officer’s use of these checklists will be discussed further later in these reasons.
24The Hearing Officer framed three issues to guide her analysis as to whether the appellant was guilty of neglect of duty. The first of these was whether the appellant’s explanation as to why he called off PC Cain, the TCI officer, contrary to the direction to D/Sgt. Duggan’s direction, negated negligence on his part.
25The Hearing Officer reviewed the evidence that led to the appellant’s 100% belief that a motor vehicle was not involved in the fatality of Mr. Roach. She wrote that putting the matter in perspective and in light of the circumstances as they existed at the time she was not convinced that the appellant’s decision amounted to negligence, even though she found that the decision was wrong.
26The second issue she framed to assist her analysis was as follows:
Once Sgt. Neild ruled out a MVC [motor vehicle collision] were there other steps he ought to have taken? Did he direct the officers to protect the scene, preserve and collect evidence and interview all witnesses? Is it reasonable to expect a front-line supervisor should have recognized FIS was required to attend the scene and summons its attendance?
27The Hearing Officer referred to the Sudden Death Checklist which distinguishes three scenarios: natural/expected; sudden/unexpected death (believed to be non-suspicious) and; sudden/unexpected death (unknown circumstances, suicides, accidents). She found that sufficient evidence existed that merited further investigation and until the cause of death was ascertained, the appellant should have treated it as a crime scene and the area should have been secured. Doing so would have been in accordance with the Crime Scene Checklist which she found applied in this case of a sudden death, the circumstances of which were unknown.
28The Hearing Officer also concluded that the Deceased Body Checklist, which applied in the case of a sudden/unexpected death required that the appellant summons the FIS.
29Ultimately, she found that the appellant was negligent in his duty to establish the scene as a crime scene; protect the scene and preserve evidence and; that he failed to recognize that FIS was essential and summons it along with the Crime Unit to the scene.
30In our view, the Hearing officer was entitled to apply her expertise in these circumstances to the information before her to make such findings.
31The last issue considered by the Hearing Officer was whether the appellant’s neglect amount to misconduct or was the result of a performance issue. She wrote that the appellant’s “unfounded and premature belief” that Mr. Roach “unfortunately just died in the snow” was in contrast to the key messaging to all officers that a death investigation may evolve into a homicide [investigation].
32She also wrote the following:
I cannot reconcile in my own mind how he concluded this was just an unfortunate death…he had a duty to look beyond and call in additional resources, because all he had was an opinion, and not evidence.
33Based on her analysis of the issues, the Hearing Officer concluded that the appellant’s degree of neglect crossed the line and amounted to misconduct.
34In our view the hearing Officer correctly stated and applied the law as to neglect of duty.
III) Was there clear and convincing evidence to support the finding of guilt?
35The Hearing Officer wrote the following at pages 28 and 29 of her decision.
The prosecution provided clear and convincing evidence that Sgt. Neild failed to follow policy set out in the Sudden Death Checklist, the Deceased Body Checklist and the Crime Scene Checklist.
The evidence which did exist was a body on the road, which he could not explain. There were tire, footwear and body impressions as well as a disturbance in the snow in proximity to the body. To do nothing more than direct the SOCO to take photographs and possibly determine a landmark moved his conduct past a performance issue into the area of neglect.
36In our view, the decision of the Hearing Officer was reasonable. There was justification, transparency and intelligibility evident in her decision-making process. Ultimately, her decision fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
ORDER
37Pursuant to section 87(8) of the Police Services Act, we confirm the finding of guilt for neglect of duty.
Released: January 17, 2018
D. Stephen Jovanovic
Jacqueline Castel
Marisa Victor