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

Citation: Dickinson v. Ontario Provincial Police, 2018 ONCPC 20

Date: December 19, 2018

Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Between:

Cst. Rick Dickinson

Appellant

And

Ontario Provincial Police

Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Maureen Helt, Vice-Chair Winston Tinglin, Member

Appearances:

James Girvin, counsel for the appellant Lynn Donnelly, counsel for the respondent with Alexandra Main, student-at-law

Place and date of hearing:

Toronto, Ontario November 13, 2018

Introduction

1By way of a decision dated October 2, 2017, Superintendent Lisa Taylor (the Hearing Officer) found the appellant guilty of one count of neglect of duty contrary to section 2(1)(c)(i) of the Code of Conduct (the Code), O. Reg 268/10 under the Police Services Act (the PSA). In a second decision, dated May 14, 2018, the Hearing Officer ordered the appellant to forfeit 35 hours pay. The appellant now appeals only from the finding of guilt.

2The charge arose from the appellant’s actions on February 25, 2015 when he was assigned to follow up on a second call from a Ms. Joyce Edwards who was concerned that she had not seen for some weeks a mother and a daughter, described as BA and RA respectively. BA had health problems, while RA had a developmental disability, relying on her mother for care. The appellant attended the last known address for BA and RA but, as will be explained below, did not go to the door of the house.

3On March 19, 2015, Elliot Lake Fire Chief Paul Officer attended the house in response to a hoarding complaint and some concerns with fire safety. He eventually forced his way into the home and found BA in the living room, deceased. The appellant was charged with neglect of duty on August 28, 2015.

4A portion of the particulars of the charge in the Notice of Hearing set out the following:

Your investigation was neglectful, including that:

• You never did approach and knock on the door of the residence to confirm whether or not the women were inside that building.
• You assumed that the women were not at the residence as they had been evicted from there in early 2014 and there did not appear to be any indicators of occupancy when you drove by the house.
• You did not interview JE to ascertain exactly what she knew and why she believed the women to be living at that residence.
• You relied on your past knowledge of these women and discounted current information that was available from JE.
• Even when challenged by JE, when you contacted her two days after receiving the complaint, you still did not approach the residence and knock on the door.
• Your failure to knock on the door of the residence in February 2015 was a missed opportunity to potentially assist two women you knew to be vulnerable and marginalized.

Disposition

5For the reasons that follow, the finding of guilt on the charge of neglect of duty is confirmed.

Background

6Ms. Edwards attended the Elliot Lake OPP detachment during the day shift on February 25, 2015 as she was concerned that she had not seen BA or RA since Christmas and she normally saw them daily. The appellant was working the night shift and drove by 11 Feltz Road, the address given by Ms. Edwards, without exiting his vehicle. He wrote the following in his Occurrence Report:

…the driveway has not been plowed, there is no evidence of anybody coming or going to the house from the sidewalk area as the snow is not indented indicating that anybody has been coming or going. The house is boarded up and due to no evidence of anybody coming or going whatsoever police did not wade through the snow to check any further at this time.

…a phone call was made to the Maplegate Women’s Crisis Centre…if they could call police just to say they that there [sic]…No call was received.

…the complainant wanted a call back, but due to the later [sic] hour the writer is not gonna [sic] call her back tonight, will follow-up with the incident tomorrow. Dayshift will be requested to contact the social services to see if the pair have been in contact…and maybe double check with the Women’s Centre…

7On the following night shift, the appellant contacted Cst. Martell at his residence to determine if he was able to find out any information about BA and RA. Cst. Martell advised the appellant that he had contacted social services, knocked on some doors in the “area” and spoke to people walking by. However, Cst. Martel, like the appellant, did not knock on the doors at 11 Feltz Road. The appellant spoke with Ms. Edwards shortly afterwards and sent an email to all detachment members with the following information:

An Elliot Lake resident has requested police check on the wellbeing of the two homeless ladies that walk the streets of Elliot Lake…Their old residence has been boarded up and there are no footprints around the house…Constable Martell checked with neighbours who advised they have not been around in a long time. It is unknown where they are living…if you have any information, please advise.

8Nothing further appears to have happened in the search for BA and RA until Fire Chief Paul Officer attended their home on March 19, 2015. Ms. Edwards filed a complaint with the Office of the Independent Police Review Director after she learned of the death of BA.

Issues

9The appellant submitted the following three issues to be determined on this appeal.

I) What is the standard of review to be applied by the Commission?

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 by the Commission?

10The standard of review applied by the Commission to a decision of a Hearing Officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Service v. Diafwila, 2016 ONCA 627 at paras. 61-63. Questions as to whether the facts satisfy a legal test are questions of mixed fact and law and 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 at para. 53.

11In assessing the reasonableness of a decision, the questions to be asked are whether there is “justification, transparency and intelligibility with the decision-making process” and whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” See Dunsmuir at paragraph 47. Findings of fact and credibility assessments by a Hearing Officer are owed particular deference by the Commission: Paige v. Hanover Police Service, 2017 CanLII 36559 (ONCPC).

II) What is the legal test for finding neglect of duty and was it correctly applied by the Hearing Officer?

12The parties agree on the legal test which was set out by the by the Hearing Officer as follows:

Firstly, was P/C Dickinson required to perform a duty, and failed to do so because of neglect? Or did he not perform the duty in a prompt and diligent manner?

If the actions of P/C Dickinson, or lack thereof, do meet the threshold of neglect of duty, did he have a lawful excuse?

Finally, does the totality of the evidence meet the threshold of clear and convincing evidence?

13The Hearing Officer began her analysis of the neglect of duty issue with a reference to the following quotation from Mousseau and the Metropolitan Toronto Police Services, 1981 CanLII 3042 (ONCPC):

The reasonableness of the 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 to what extent discretion was warranted.

14The appellant submitted that the Hearing Officer erred in her application of the law and that, had she conducted a proper analysis of the evidence, she should have found that he performed his duty. The appellant also submitted that, contrary to the above principle in Mousseau, the Hearing Officer’s decision was tainted by her hindsight analysis of his actions.

15The appellant also submitted that the Hearing Officer failed to consider that he had other duties to perform; the non-existence of a “wellness check” policy of the OPP and; that she effectively lowered the threshold for a finding of neglect of duty to the point that an officer could never meet his or her duty. According to the appellant, there was no evidence to suggest any urgency to the situation, which was just a standard call for service with no greater priority attached to it than any other of his duties.

16The appellant received some information from the Provincial Communications Centre (the PCC) and a transcript of the call showed that he made the following comments:

They used to live there. I don’t know if they live there now.

They probably got evicted.

Because they were hoarders as well as…

…there was a mountain of poop in the toilet because they didn’t have water. It’s a bad set of circumstances…

…then you’ve got bugs and everything else…

They have obviously some mental health issues and stuff like that and they wear a bunch of different clothing like a lot of layers of clothing.

And when it gets cold, they disappear. So you know, they find a place to go and they go.

I’ll go over and knock on that door but I don’t know if they’re living there or not, like I haven’t seen them for a while either but I’ll check.

….does not appear to be habituated [sic] by anyone. The snow bank is up high. There is no sign of anybody coming or going…

There’s [sic] no lights on in the residence. I don’t think there’s hydro to the place.

17The Hearing Officer used this and other evidence to conclude that the appellant knew that RA and BA were “vulnerable” individuals. She concluded that the appellant, as a police officer, had a common law duty to protect the life and safety of individuals and that he should have investigated further.

18The appellant submitted that the Hearing Officer erroneously extended that common law duty to the circumstances of this matter. The respondent countered with the submission that there was ample evidence to show that the appellant was aware of their situation when he was assigned the call. We agree with the respondent. The Hearing Officer’s finding that the appellant failed in his duty as a police officer to assess the risks faced by RA and BA was reasonable.

19The appellant further submitted that there was no basis or evidentiary foundation for the Hearing officer concluding that RA and BA were “vulnerable” people. In our view, the word “vulnerable” is not a term of art with a specialized meaning and the Hearing Officer’s use of the word was not only reasonable, but correct in describing BA and RA.

20The Hearing Officer concluded that it was an unreasonable assumption by the appellant that BA and RA no longer lived at 11 Feltz Road in light of the information received from Ms. Edwards. She found that the appellant’s failure to properly check the house by not even getting out of his car was not reflective of a good faith effort to properly conduct the investigation into their whereabouts. She also found that a complete circumference check of the Feltz Road property was required to properly complete a visual assessment. The Hearing Officer rejected the appellant’s explanation that he did not walk up to the house because he was laying a “track trap.”

21According to the appellant, a track trap, which was a technique he had learned about in the 1980s, involved not disturbing an area where there were no tracks in the sand or soil around a property. An officer could then return to the property at a later date and determine if someone had been there. Officer Martell also testified about a track trap.

22The Hearing Officer found that the explanation of a track trap was not reasonable as it would be of no assistance in discovering if someone was in the house at the time. The appellant indicated in a conversation with PCC personnel that “we may have to double check the residence just to make sure the recent snow fall [sic] didn’t fill in any areas where someone may have walked.” The appellant did not in fact take any further action to see if the track trap produced any results.

23Although the Hearing Officer did mention some events that occurred after February 25, 2015, we are satisfied that she did analyze the appellant’s actions as of the relevant time and not by way of hindsight. For instance, she did mention that BA was subsequently found dead in the home, but she expressly noted that there could be no suggestion that BA may have lived had the appellant been more diligent in his investigation.

24The appellant pointed out that the Hearing Officer wrote:”… but it is very likely RA, a clearly marginalized, vulnerable woman, would not have been subjected to such deplorable conditions over an undetermined period of time” had the appellant been more diligent in his investigation. We do not see how this comment constitutes after the fact analysis as submitted by the appellant. The Hearing Officer examined the appellant’s conduct of the investigation and found it wanting. She addressed the issue before her.

25In our view, the lack of a wellness check policy by the OPP is irrelevant. The Hearing Officer analyzed the appellant’s investigation from the perspective of a police officer and the corresponding duty “to protect life and safety.”

26The appellant submitted that he fulfilled his duties and accordingly there was no reason to go to the second step in determining whether neglect of duty was established. The Hearing Officer found that there was no lawful excuse for the appellant’s lack of diligence in his investigation. We see no basis for disturbing that finding.

III) Was there clear and convincing evidence to support the conviction?

27The appellant did not make submissions directly under this heading. The evidence relied on by the Hearing Officer has been reviewed above. We see no reason to further address that evidence.

28Upon a fair reading of the entire decision of the Hearing Officer, we find that her reasons adequately explained her conclusion that the investigation by the appellant was not reasonable in all of the circumstances and lacked the appropriate diligence. Her findings were “within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” and therefore reasonable. Her conclusion that the appellant was guilty of neglect of duty was reasonable.

ORDER

29Pursuant to section 87(8) of the Police Services Act, the Commission confirms the finding of guilt on the charge of neglect of duty.