OCPC-#01-11

ONTARIO CIVILIAN POLICE COMMISSION

REASONS FOR DECISION

CONSTABLE STEPHEN WATTERS

Appellant

ONTARIO PROVINCIAL POLICE AND LISA SMITH

Respondents

Presiding Members: Dave Edwards, Member Garth Goodhew, Member Appearances: Andrew McKay, Counsel for the Appellant Jodie-Lynn Waddilove, Counsel for the Respondent, Ontario Provincial Police Hearing Date: Thursday, December 16, 2010 Constable Watters appeals findings of guilt for one count of unlawful or unnecessary exercise of authority, contrary to section 2(1)(g)(ii) of the Code of Conduct found at Ontario Regulation 123/98 (the “Code”) and one count of neglect of duty contrary to section 2(1)(c)(ii), as well as the penalty of demotion for a period of six months imposed against him on May 11, 2009 and September 16, 2009 respectively, by Superintendent (retired) M.P.B. Elbers (the “Hearing Officer”).

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For the reasons set out below we revoke the finding of unlawful or unnecessary exercise of authority and uphold the finding of neglect of duty. We revoke the penalty, and substitute a forfeiture of three days or twenty-four hours pay. Background: On May 21, 2005 Ms. Smith’s neighbor, Ms. Pynenburg, called the Ontario Provincial Police (“OPP”) to complain that her mailbox had been damaged and identified Ms. Smith as the person responsible. Shortly thereafter, Mr. Blair, another neighbor, also called the OPP to report the theft of his mailbox and also identified Ms. Smith as the person responsible. Following these calls, Ms. Smith reported damage to her mailbox. Constables Watters and Greer attended at the Pynenburg and Blair residences. Constable Watters and Greer then attended at Ms. Smith’s residence. She was arrested and taken to the Stormont, Dundas and Glengarry Detachment (the “Detachment”) and placed into a detention cell. She was later released on a Promise to Appear. Ms. Smith subsequently filed a public complaint and an investigation took place. As a result, Constable Watters was charged with the two counts of misconduct identified earlier and Constable Greer was charged with one count of neglect for failing to stop Constable Watters from exercising excessive force and for failing to report that excessive force. The particulars for the allegation of unlawful or unnecessary exercise of authority against Constable Watters read:

On or about May 21, 2005 while on duty, you attended the residence of Ms. Lisa Smith and arrested her for theft and mischief. During the course of your dealing with Ms. Smith, you used unnecessary force against her. Your

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inappropriate actions included: When Ms. Smith attempted to run into her house [you] pushed her to the floor and jumped on her with excessive force causing injury to her shoulder and severe bruising to her chest area.

You handcuffed her with excessive force causing marks and cuts to her wrists. You pushed her into a door at the Stormont Dundas and Glengarry Detachment causing a cut to her mouth and bruising to the right side of her face.

The particulars of the allegation of neglect of duty against Constable Watters read:

On or about May 21, 2005 while on duty, you attended the residence of Ms. Lisa Smith and arrested her for theft and mischief. You transported her to Stormont, Dundas and Glengarry OPP Detachment and lodged her in a cell. During the course of your dealings with Ms. Smith you were neglectful in your duties.

Your neglectful actions include: Ms. Smith complained to you that her shoulder was injured and asked to attend a hospital. You neglected to provide medical assistance to Ms. Smith as requested. You failed to document Ms. Smith’s complaint of injury or request for medical assistance.

The Hearing: The disciplinary proceedings against Constables Watters and Greer began on January 29, 2007 and ended April 2, 2009 after fifty-two days of testimony, twenty-three witnesses, and ninety exhibits, all reflected in over 7,000 pages of transcript.

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On May 11, 2009 the Hearing Officer found the Appellant guilty on both charges. The charge against Constable Greer was dismissed. Following submissions, the Hearing Officer imposed penalty on September 16, 2009. He directed that Constable Watters:

…be demoted from First Class Constable to Second Class Constable for a period of six (6) months. At the completion of the six months you will be elevated to the rank of First Class Constable in the normal manner as any other member of the Ontario Provincial Police.

Further, you will receive remedial training with the Policies of the Ontario Provincial Police as required and deemed necessary by the detachment commander of the Stormont, Dundas and Glengarry detachment or his designate. This training will be afforded to you at the earliest opportunity and when completed, the Detachment Commander will forward a copy of all training to the Bureau Commander of Professional Standards Bureau to be filed in the appropriate manner.

Preliminary Matters: On May 11, 2010 Commission Counsel wrote to the parties and advised that due to the voluminous nature of the materials in this appeal they were directed to prepare a Compendium “containing only copies of the key materials to be referred to during oral argument”.

Counsel for the parties requested further direction, and Commission Counsel forwarded an e-mail to them on June 1, 2010 which suggested they refer to “the Commercial List (SCJ ON) Practice Direction (effective from April 1, 2002) in which it details when a Compendium may be required for use in oral hearings before the court, and Saskatchewan Egg Producers’

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Marketing Board v. Ontario [1993] O.J. No. 434 where the nature and use of a Compendium is discussed.” Both parties filed Compendiums. The Appellant raised the objection that the Respondent’s Compendium failed to follow the Commission’s directions. In particular, there was significant duplication of photographs, of pages from the transcript, and of the exhibits. We reviewed that Compendium and concluded that the Respondent had failed to follow our direction on numerous counts. As a result, the Respondent was instructed to prepare and serve another Compendium which followed the Commission’s instructions and suggested once again that Counsel for the Respondent have regard to Saskatchewan Egg Producers’ Marketing Board, supra. The Respondent filed an amended Compendium. Prior to the appeal hearing, the Respondent brought a preliminary motion. The Respondent argued that the Appellant’s appeal materials and Compendium had not been filed in accordance with the Commission’s Rules of Practice and that this failure was not a defect in form, but a failure to comply with the mandated and legislative authority of the Commission. She requested that the appeal be dismissed. She submitted that the Appellant’s factum was received by the Respondent two days after it was due. She asserted that the Appellant had failed to follow the direction of the Commission with respect to the Compendium in two ways. She argued that the Appellant’s Compendium was received by the Respondent three days after it was due and further, that the Appellant had inserted nine new cases into its Compendium which had not been referred to in the Appellant’s factum.

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Counsel for the Appellant took the position that both the factum and the Compendium had been served and filed in accordance with the Rules and the Commission’s direction. Further, he noted that one of the nine cases identified (Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3d) 1) had been released by the Ontario Court of Appeal after his factum was delivered. He had brought this to the attention of the Commission and Respondent by email on July 5, 2010. The eight other cases were explained as either typographical errors or by the fact that they were already referred to within the body of cases contained in the Appellant’s Book of Authorities. The motion was dismissed. First, a failure to meet a filing requirement of the type in question, by a few days, does not remove a statutory right of appeal. Further, we concluded that there was no prejudice to the Respondent by the alleged infractions. The Appellant’s factum was served on or about March 8, 2010 - nine months prior to the hearing of the appeal. The Appellant’s Compendium was served on or about July 12, 2010 - five months prior to the hearing. Given this finding, it is not necessary for us to determine whether or not the factum and compendium were filed within the prescribed time periods. Counsel have an obligation to provide the Commission with the most up-to-date case law on the legal issues raised in an appeal. Neinstein was clearly a significant development in the law and Counsel for the Appellant was correct in providing it to all parties in a very timely way and one which did not surprise or prejudice the Respondent. The Appellant’s response to the allegation regarding the other cases to which the Respondent objected was appropriate.

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Appellant’s Position on the Appeal: Mr. McKay appeared for Constable Watters. He raised fifteen grounds of appeal. He asserted that the Hearing Officer failed to make four findings of fact which were crucial to the finding of guilt:

1. Whether arrest was necessary. 2. What transpired at Ms. Smith’s residence. 3. What transpired at the Detachment. 4. Whether Constable Watters was neglectful of his duties.

Mr. McKay asserted that the Hearing Officer had a duty to provide reasons which were susceptible to appellate review and that the reasons contained in the decision in this case were not sufficient. He argued that the Hearing Officer misapprehended significant portions of the evidence. Specifically:

1. The testimony of Constable Greer concerning what took

place at the Smith residence and at the entrance to the Detachment;

2. By omission, the evidence of the Appellant concerning what took place at the entrance to the Detachment; and,

3. The evidence of Sergeant Burton with respect to Ms. Smith’s cooperation and his comments concerning Ms. Smith’s injuries.

Mr. McKay suggested that the Hearing Officer failed to properly analyze the testimony of Ms. Smith, Constable Watters and Constable Greer to determine credibility. He noted a number of inconsistencies both in the testimony of Ms. Smith and the Hearing Officer’s findings regarding credibility and reliability.

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He argued that the Hearing Officer failed to consider the significance of Constable Greer’s acquittal. Finally, he submitted that the Hearing Officer failed to address the standard of proof being, “clear and convincing” evidence. As to penalty, Mr. McKay argued that if we dismissed the appeal as to conviction, we should alter the penalty as it was excessive.

Respondent’s (OPP) Position: Ms. Waddilove represented the OPP. She submitted that there were three issues:

1. What is the proper standard of review for the Commission to apply to the findings of the Hearing Officer?

2. Did the Hearing Officer err in finding Constable Watters guilty of unlawful or unnecessary force?

3. Did the Hearing Officer err in imposing the penalty of a six-month demotion and remedial training?

She argued that the standard of review is one of reasonableness and that failure by the Commission to show the Hearing Officer appropriate deference would be an error in law. She reviewed the elements of the charge of unlawful or unnecessary use of force. She noted that the Commission has described the word “unnecessary” in the following way:

The word “unnecessary” as used in the section in question, might mean “not absolutely essential” or it might mean “unreasonable under the circumstances”… We find that the word “unnecessary” as used in the section, does not mean “not absolutely essential” but rather means something closer to “unreasonable under the circumstances” considering other options that were in fact available.1

1 Burgess and St. Thomas Police Service (1989), O.P.R. 822 (O.P.C), pg. 3

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She submitted that the Hearing Officer concluded that the arrest of Ms. Smith was not necessary and that the Appellant’s actions were unwarranted. Further, she argued that the Hearing Officer found that Ms. Smith’s version of the events at the Detachment was more believable than Constable Watters’. The Hearing Officer found that Constable Watters pushed Ms. Smith’s head into the door-frame and concluded that, whether or not the arrest was legal, the force was not justified and accordingly it was unnecessary. Ms. Waddilove asserted that the Hearing Officer reviewed the record and reached a reasonable conclusion that the Appellant failed to provide medical assistance as requested, and further failed to make a note of the request. She argued that the Hearing Officer carefully considered the credibility and reliability of Ms. Smith and Constable Watters. He pointed out aspects of the testimony of each which he did accept and that which he did not. He engaged in a probing examination of their testimony and gave reasons why he found portions of their testimony credible or not credible. She asserted that the penalty was appropriate for the offences to which the officer had been convicted. Respondent’s (Ms. Smith) Position: Ms. Smith, the public complainant did not file any materials for this appeal, nor did she appear at the oral argument on the appeal. Decision: Constable Watters appeals both the findings of misconduct and the penalty imposed against him.

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The standard of review for this Commission with respect to factual findings is reasonableness.2 The Supreme Court of Canada described that standard in Dunsmuir v. New Brunswick [2008] S.C.J. No. 9 at para 47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable rational solutions. … In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

While deference must be accorded to factual findings, the same cannot be said for interpretations of relevant aspects of the law. The standard of review for such matters is correctness. 3

The Ontario Court of Appeal has stated that where reasons are necessary, they must meet certain requirements. Failure to do so would represent an error of law which would not meet the standard of correctness. It is clear that in police disciplinary matters there is an obligation to provide reasons.4 The question, for us, in this appeal, is whether the reasons of the Hearing Officer satisfy the requirements articulated by the Courts.5

2 McCormick v. Greater Sudbury Police Service (2010), ONSC 270 (Ont. Div. Ct.), para. 89 3 Law Society of Upper Canada v. Neinstein, supra 4 McCormick v. Greater Sudbury Police Service, supra 5 Baker v. Canada (Ministry of Citizenship and Immigration) [1999] 2 S.C.R. 817 (S.C.C.)

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There are two aspects to any appellate review of reasons. They have been described by the Courts as functional and substantive. The Court of Appeal has stated that initially reasons must be examined to ensure that they describe the finding - the “what” - and the pathway by which the adjudicator reached his or her decision - the “why”. This is a functional review. This functional review is an examination of sufficiency of reasons. The essential question in a functional review is whether the reasons clearly articulate the finding and provide an intelligible explanation as to how an adjudicator reached his or her conclusions. A decision must identify the live issues and deal with them.6 While the questions of “what” and “why” are both at play during a functional review, it is normally the question of “why” that dominates. If the decision cannot satisfy a functional review – it cannot stand as the reasons are insufficient. If it does, then a substantive review can take place. A substantive review is a deferential review as to the reasonableness of the decision and follows the principles enumerated in Dunsmuir. How do these principals apply in the case before us? Unnecessary Use of Force The Appellant was charged with one count of unlawful or unnecessary use of authority and one count of neglect of duty. The particulars of the first charge against the Appellant were that he exerted unnecessary force when:

6 Clifford v. Ontario (Attorney General) (2009), 98 O.R. (3d) 210 (Ont. C.A.)

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1. Ms. Smith attempted to run into her house he pushed her to the floor and jumped on her with excessive force causing injury to her shoulder and severe bruising to her chest area.

2. He handcuffed her with excessive force causing marks and cuts to her wrists.

3. He pushed her into a door at the Detachment causing a cut to her mouth and bruising to the right side of her face.

Although the charge was one of unlawful or unnecessary use of authority, the particulars restrict the charge to one of unnecessary force. The Hearing Officer found the Appellant guilty of this charge. This Panel must turn its mind to whether the reasons are sufficient, and if so, does this finding fall within the range of possible outcomes which are defensible both as to fact and law. For ease of reference we have examined separately the three particulars of the charge. 1. Events at the Smith Residence Although the decision of the Hearing Officer is 26 pages long, only 8 of the pages fall under the “Finding” section. A significant portion of the “Finding” section contains simply a recital of the evidence. The Hearing Officer recites the testimony of the parties as if the conclusion will be self-evident:

Lisa Smith further testifies…. Constable Watters in his Examination in Chief testified that… Under cross-examination, Const. Watters explained his role in the arrest as… Const. Greer testified that…7

7 Ibid., pg. 21

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With rare exceptions, the Hearing Officer makes no findings with respect to the testimony, or as to credibility. On the occasions where the Hearing Officer comments on the evidence, his comments are not enlightening. By way of example:

We heard from retired D/Sgt. Duggan who apprised the Tribunal of the training standards and arrest procedures. I respect and accept his evidence. I have difficulty when he concludes that Const. Watters conducted a proper investigation.8

This raises the obvious question: How could the Hearing Officer accept Detective Sergeant Duggan’s testimony and simultaneously reject it? The Hearing Officer does make a clear finding of fact concerning the point at which Constable Watters determined that he would arrest Ms. Smith. That, however, is not fundamental to the issue of whether unnecessary force was used against her during that arrest. Having recited the testimony of the various parties, the Hearing Officer makes the following finding with respect to the interaction of the Appellant and Ms. Smith at her residence:

An appearance notice or summons would have been more practical in my mind. The arrest is further complicated when Smith enters her home and is followed by the officers. Watters testified Smith hits the wall or doorway and falls to her knees. Smith testifies she is jumped upon entering the residence and Watters is on top of her as they come to rest near the fireplace. She strikes the door with her shoulder. Greer testified he could see Watters’ arms move forward however, he could not see beyond Watters. He could not say if Smith fell on her own or whether she

8 Ibid., pg. 22

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was pushed. He testified that they were on top of Smith and handcuffed her.

It is my belief these actions were totally unwarranted. (emphasis added)9

The obvious question which arises from this finding is: What actions were unwarranted? It could be Ms. Smith’s actions. It could be the Appellant’s actions. Conceivably, it could be the combined actions of Constable Greer and the Appellant. With respect to this finding, the reasons are insufficient as it is very difficult, if not impossible, for the Appellant to understand “what” the Hearing Officer has concluded and “why” he came to that conclusion. Clearly there is neither a starting point -“what” was decided - nor is there a path of reasoning for one to follow - “why” it was decided. As the reasons are not sufficient, a further substantive review is neither possible nor necessary. This finding cannot stand. 2. Handcuffing The second particular of unnecessary force against the Appellant related to the handcuffing of Ms. Smith. The only reference to this incident in the “Finding” section of the decision is the following:

The handcuffs were loosened by Watters when Smith complained.10

There is no finding by the Hearing Officer that the Appellant used excessive force when he placed them on Ms. Smith’s wrists. This cannot support a conviction for misconduct. 9 Ibid., pg. 23 10 Ibid.

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3. Events at the Detachment Ms. Smith alleged that the Appellant pushed her into a door at the Detachment, causing a cut to her mouth and bruising to the right side of her face. The only statement by the Hearing Officer under his “Finding” section on this matter is as follows:

Watters testified Smith was cooperative. I find it strange that upon being escorted out of the cruiser into the Long Sault Detachment she would for no reason start shouting obscenities. It was as if a light switch went off. A more logical reason would be that her face made contact with the door. She was under Watters control at this time. Again Greer did not see anything.11

The reasoning of the Hearing Officer with respect to this finding is clear. The Appellant can determine both the “what” and the “why” of the finding. Accordingly on a functional review, the reasons are sufficient. However, on a substantive review this finding cannot stand. The particular of this charge was that the Appellant pushed Ms. Smith into the door. The Hearing Officer fails to make a determination on this point. He concludes that it was the more logical explanation that her face made contact with the door, but offers no finding has to how that might have occurred. Further, “a more logical reason” does not satisfy the burden of proof articulated in section 84(1) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”). Leaving aside the question of whether or not F.H. v. McDougall12 has altered the standard of proof for misconduct charges under Act, “clear and convincing” evidence is required. 11 Ibid. 12 (2008), 297 D.L.R. (4th) 193 (S.C.C.)

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A bald statement that one explanation is more logical than another, in the absence of reasons, or other identified corroborating evidence does not meet the clear and convincing evidentiary standard. The Hearing Officer has failed to address the appropriate question in his reasons. This is a fundamental error of law. Further, the Hearing Officer’s statement: “Again Greer did not see anything” is nebulous at best; misleading at worst. Constable Greer’s actual testimony is very clear on this point:

Q: Did you throw Ms. Smith against any door? A: No, I did not, neither did Const. Watters.13

Constable Greer testified that the event did not occur. He did not testify that he did not see anything. The wording used by the Hearing Officer carries with it the implication that the event might have occurred; the officer just did not see it. Based upon the evidence, this finding is not reasonable. The Hearing Officer also made the error of law referred to above. Accordingly, the conviction for unlawful or unnecessary exercise of authority cannot stand. Neglect of Duty The particulars with respect to the neglect of duty were:

1. Ms. Smith complained to the Appellant that her shoulder was injured and asked to attend a hospital. The Appellant neglected to provide medical assistance to Ms. Smith as requested.

13 Transcript, Vol. 38, pg. 5381

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2. The Appellant failed to document Ms. Smith’s complaint of injury or request for medical assistance.

For a successful conviction of neglect of duty, the Prosecution must show that a duty existed and the officer failed to complete such duty. The particulars of this charge will be analyzed separately. 1. No Medical Assistance This particular of the charge contains two elements. The Hearing Officer must find that Ms. Smith complained to the Appellant that she was injured and that she asked to go to the hospital. The Hearing Officer’s conclusion on this issue is:

Lisa Smith reported an injury of a sore shoulder to Const. Watters while she was in his custody. No notations of any kind were made. Watters testified it was at the time of release. It does not matter. Smith is in custody until she is released.14

The explanation of the Hearing Officer with respect to this finding is clear. The Appellant can determine both the “what” and the “why” of the finding. Accordingly on a functional review, the reasons are sufficient. The next question is whether the finding satisfies a substantive review, which is a review of the reasonableness of the decision undertaken in accordance with the principles enumerated in Dunsmuir. Earlier in his decision the Hearing Officer quotes the Appellant’s testimony wherein the Appellant admits that he was aware of Ms. Smith’s complaint of a sore shoulder, although he was unclear of the source of this information and finds: 14 Conviction Decision, May 11, 2009, pg. 25

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Const. Watters is admitting, from the time she was placed under arrest until the time he released her, Lisa Smith did make a complaint of a sore shoulder. Const. Watters goes on to admit that he made no notes of this complaint. In examining the Prisoner Security Check form, he made no entry there as required. Also, Const. Watters failed to mention this in his Duty Report.15

Unfortunately, the Hearing Officer makes no specific findings regarding the testimony of Ms. Smith. Instead, he appears to imply that Constable Watters’ admission of a vague recollection that he knew that she had a sore shoulder (although he could not be certain whether another police officer told him or Ms. Smith had communicated that directly), corroborated the testimony of Ms. Smith. However, the Hearing Officer had made no finding about Ms. Smith’s testimony on this point. In the absence of any findings with respect to the testimony of Ms. Smith, the Hearing Officer would appear to be accepting the testimony of the Appellant. It is important therefore to view the complete testimony of the Appellant on the question of whether Ms. Smith requested to go to the hospital.

Q: You indicated that she had a desire or a request to go to the hospital, whatever happened on that?

A: Well, whenever I released her from the cell, and whenever she said that to me and I told her that Cecil was on his way and that I told her that she was being released and then at --- saying that, I was also saying but if you want me to take you to the hospital, I can, she said --- and then she said why the fuck would I go with you anywhere, words to that effect.16

15 Ibid., pg. 24 16 Transcript, Vol. 22, pg. 2824

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The Hearing Officer did find, and it is a reasonable finding, that Ms. Smith had an injured shoulder and that she complained about it. However, the decision does not contain a finding of a request for medical assistance by Ms. Smith. The Hearing Officer quotes the Appellant’s testimony wherein he states that “we spoke about the hospital”. However, nowhere in the decision is there a finding that Ms. Smith requested that she be taken for medical assistance. In the absence of such findings, a conviction for neglect of duty on this particular is unreasonable and cannot stand. 2. No Documentation

This particular alleged that the Appellant failed to document Ms. Smith’s complaint of injury or request for medical assistance. The Hearing Officer found that the Appellant was aware of Ms. Smith’s complaint of injury. Further, he found that the Appellant failed to document said complaint. The reasoning of the Hearing Officer with respect to this finding is clear. The Appellant can determine both the “what” and the “why” of the finding. Accordingly on a functional review, the reasons are sufficient. The next question is whether the finding satisfies a substantive review which is a review of the reasonableness of the decision undertaken in accordance with the principles enunciated in Dunsmuir. As noted above, there was no finding that Ms. Smith made a request to be taken for medical assistance. Therefore, there is no basis to support a finding of failure to document such a request. However, a finding of neglect of duty for failing to document a complaint of injury does fall within the range of potential

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outcomes defensible at law and fact in this matter. A conviction based on this particular is both reasonable and fair. Given our conclusions, it is not necessary to comment further on the decision. However, we would note that with respect to the convictions, which we have reversed on other grounds, had further examination of them been necessary, credibility would have been an issue. This Commission has previously commented:

Our role or function in these matters is not to second-guess the decision of the Adjudicator. In certain limited cases it should be open for us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the Adjudicator, as to the credibility of the witnesses, cannot be reasonably accepted.17

In the case before us, the Hearing Officer acknowledged that “[t]he evidence presented by the principal parties involved in this hearing is clearly questionable”, and further in reference to all of the parties, he states “[t]here are several inconsistencies in their evidence relating to events that transpired on that day. Selective memory loss also plays a card in the evidence presented by these parties.”18 The Hearing Officer does reject certain testimony of the parties, but never with clear reasons and not in a way which would allow a reviewing body to assess those findings of credibility, or apply such findings to the record to determine whether the evidence supports a finding which might be less than perfectly expressed in the decision.

17 Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) 1058 (O.C.C.P.S.) 18 Conviction Decision, May 11, 2009, pg. 5

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Accordingly, we allow the appeal in part. We revoke the conviction with respect to the charge of unlawful or unnecessary exercise of authority and uphold the conviction for neglect of duty on the particular related to the failure to document Ms. Smith’s complaint of injury. Penalty

The Hearing Officer assessed the penalty on the basis of a conviction for unnecessary use of force and for neglect of duty. The finding with respect to unnecessary use of force has been revoked and a finding of neglect of duty has been made only with respect to the failure to document Ms. Smith’s injury.

The penalty cannot, therefore, stand.

This Commission previously addressed the importance of accurate records in a decision involving an officer’s notebook.

The purpose of an officer’s notebook is to provide a clear, creditable record of the officer’s activities and observations of various matters which may be of vital use later to refresh his or her memory. Misstatements such as in this case only serve to undermine the usefulness and credibility of an officer’s notebook for all officers.19

In that case the officer left his patrol zone without permission to attend a chiropractor’s appointment and failed to reflect that fact in his notebook. The penalty imposed was forfeiture of two days off and the Commission concluded that this was at the “low range of the spectrum available to the Hearing Officer”.20

19 Cristiano and Metropolitian Toronto Police Service (February 4t, 1997, O.C.C.P.S), pg. 2 20 Ibid, pg. 4

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In his penalty decision the Hearing Officer identified the Appellant’s employment history and the background events. He also identified the relevant factors for assessing penalty.

He also noted that 51 letters of appreciation and commendation had been filed as part of the record. In addition the Appellant was in receipt of a commendation from St. John’s and Commissioner’s Citation for Lifesaving, all of which he considered to be mitigating factors to disposition. Therefore, after considering the factors enumerated above, we revoke the penalty and substitute a forfeiture of three days or twenty-four hours pay. DATED AT TORONTO THIS 1st DAY OF FEBRUARY, 2011. Dave Edwards Garth Goodhew Member, OCPC Member, OCPC