DECISION ON DISPOSITION AND SENTENCE

Transcription

1 OTTAWA POLICE SERVICE DISCIPLINE HEARING IN THE MATTER OF ONTARIO REGULATION 268/10 MADE UNDER THE POLICE SERVICES ACT, RSO 1990, AND THE AMENDMENTS THERETO; THE OTTAWA POLICE SERVICE AND CONSTABLE NIKOLAS BOLDIREV, #2204 DECISION ON DISPOSITION AND SENTENCE APPEARANCES: Counsel for the Prosecution: Inspector Mark Patterson. Non-Legal Representation for the Defence: Sergeant Patrick Laflamme. BEFORE: Superintendent Chris Renwick Ottawa Police Service Hearing Officer March 21,

2 Part 1: Overview. Background of Respondent Officer. 1. Constable Nickolas Boldirev joined the Ottawa Police Service in December 2010 after six years service as a Canadian Forces military police officer. He was working uniformed patrol in August 2015 when the incident occurred that led to the Police Services Act charge before this disciplinary hearing. Constable Boldire v has received commendations for police work and community involvement and does not have any previous discipline on his record. Allegations and Particulars of Misconduct. 2. Constable Boldirev is before this hearing accused of the following charge: Unlawful or unnecessary exercise of authority. Constable Boldirev did commit unlawful or unnecessary exercise of authority in that on or about August 31, 2015, while on duty, did use unlawful or unnecessary use of force on a prisoner, M.H., in that he struck him twice in the head, face, or neck area while handcuffed, thereby constituting an offence against discipline as prescribed in Section 2(1)(g)(ii) of the Code of Conduct, Ontario Regulation 268/10, therefore contrary to Section 80(1) of the Police Services Act, R.S.O. 1990, as amended. Plea. 3. A Hearing was held on February 28, 2018, in whic h Constable Boldire v pled guilty to one count of unlawful or unnecessary exercise of authority. I accepted the guilty plea on clear and convincing evidence. 4. As a result of this plea, a joint submission on penalty was submitted in which both parties agreed that the appropriate disposition for the finding of unlawful or unnecessary exercise of authority is a forfeiture of seven days (56 hours) and the requirement to attend the Ottawa 2

3 Police Service s Professional Development Center, while off duty, for one day of use of force training within three months of the decision. Part II: Summary of Misconduct. Agreed statement of facts. 5. An agreed statement of facts (Exhibit #6) was read on record by the prosecutor, Inspector Mark Patterson, at the February 28, 2018 proceeding as follows: The subject officer, Constable Nikolas Boldirev (cadre #2204) is a sworn member of the Ottawa Police Service. Constable Boldirev has been a police officer with the Ottawa Police Service since December 13, Prior to this, Constable Boldirev was employed by the Canadian Forces Military Police for six years. On August 31, 2015, Constable Boldirev conducted a traffic stop at the intersection of Baseline Rd. and Woodroffe Ave. wherein he stopped a vehicle bearing an Ontario license plate. The driver of the vehicle identified himself with a valid Ontario driver s license as M.H. While speaking with the driver, Constable Boldirev detected an odour of marijuana emanating from inside the vehicle. Constable Boldirev observed several flakes of marijuana on the floor of the vehicle and proceeded to arrest the driver. The driver was cooperative and walked to the rear of the cruiser while handcuffed. Constable Boldirev searched the driver and then attempted to place the driver in the back of the cruiser. The driver tensed up and refused to enter the cruiser. Constable Boldirev used soft hand techniques to have the driver sit in the back of the cruiser. Once seated the driver attempted to get up. At this time Constable Boldirev issued 3

4 two strikes to the driver s head area to gain compliance. The driver was charged with possession of marijuana, possession of counterfeit money, resist arrest, and an unsafe lane change. The driver was released at the scene on an Appearance Notice. On March 21, 2017, The Honourable Justice Julie Bourgeois presided over the criminal trial of M.H. with respect to the above mentioned charges. At the tria l Constable Boldirev acknowledged in cross examination that M.H. did not attempt to assault Constable Boldirev with his feet or his head and that the driver kept his feet on the ground the entire time prior to Constable Boldirev delivering the two strikes to the driver s head area. Constable Boldirev described the two strikes to the head as being as hard as I could and that on a scale from one to 10, as a 10 out of 10. Justice Bourgeois found M.H. not guilty on all charges as a result of Charter breaches on the part of Constable Boldirev. One of the Charter breaches cited was the excessive use of force at the time of the arrest. A Chief s complaint was initiated to investigate the allegations of excessive use of force by Constable Boldirev during the arrest of M.H. Constable Boldirev cooperated with the PSS investigation and corroborated his evidence provided at the criminal trial of M.H. Constable Boldirev does not have previous discipline on his record and has commendations for community involvement and police related duties. Summary of Evidence and Exhibits. 6. As part of this Hearing, the Prosecution presented the following exhibits and no witnesses: i) Ottawa Police Service Hearing Officer Designation Superintendent Chris 4

5 Renwick. (Exhibit #1.) ii) Ottawa Police Service Prosecutor Designation Inspector Mark Patterson. (Exhibit #2). iii) Notice of Disciplinary Hearing. (Exhibit #4.) iv) Notice of increased penalty (dismissal or demotion). (Exhibit #5.) v) Agreed Statement of Facts. (Exhibit #6.) vi) Joint submission on penalty. (Exhibit #7.) vii) Book of Authorities. (See Appendix A.) (Exhibit #8.) 7. Defence presented one document and no witnesses: i) Police Association non-lega l representative waiver. (Exhibit #3.) Part III: Analysis. 8. I will start my decision on penalty by first outlining the objectives of discipline which are to: i) Correct unacceptable behaviour, ii) Deter others from similar behaviour, iii) Assure the public that the police are under control. To achieve these objectives, I will speak to the relevant six of the established 15 disposition considerations, those being: Public interest; seriousness of the misconduct; employment history; deterrence; damage to the reputation of the police service; and consistency of disposition. Public Interest. 9. As argued by the prosecution in citing the case of Bright and Konkle (Board of Inquiry, Ontario Police Services Act, March 14, 1997), Good character in a police officer is essential to both the public s trust in the officer and to the police service s ability to utilize that officer. It is essential to the trust and confidence of the public in their police that they can be assured that 5

6 persons taken into police custody will be treated fairly, impartially, and with due care, including only using force when absolutely necessary and to the degree necessary for compliance. 10. From the evidence, Constable Boldirev entered into a self initiated investigation and affected a lawful arrest, using appropriate soft hand techniques to place the resistive prisoner into the back seat of the police vehicle. However, it is the finding of this hearing that the subsequent two hard strikes to the head of the handcuffed prisoner amounted to unnecessary and unacceptable application of force. The public must be assured that its police officers will demonstrate discipline and restraint in situations that require use of force, and that disciplinary and corrective action will result if this trust is breached. Seriousness of the Misconduct. 11. I concur with Inspector Patterson s assertion that the unnecessary force used by Constable Boldirev falls into serious misconduct. Constable Boldirev has been a constable for over seven years with six years previous policing experience with the military. In short, Constable Boldirev has experience in dealing with non-compliant prisoners and ought to have demonstrated better restraint. Recognition of the Seriousness of the Misconduct. 12. To the credit of Constable Boldire v, he provided what comes across as a detailed, factual description of the events while giving evidence before Justice Bourgeois on March 21, 2017, at the criminal trial of M.H., despite the likely outcome that his evidence would be the grounds for a dismissal of the charges and evoke severe criticism of his actions. Further, Constable Boldirev cooperated with the resulting internal investigation and corroborated his evidence given before Justice Bourgeois. His post incident actions clearly demonstrate his appreciation and recognition of the seriousness of his misconduct. 6

7 Employment History. 13. As addressed above, Constable Boldirev has over 13 years of policing experience, the last seven with the Ottawa Police Service. He has no previous discipline on his record and has commendations for community involvement and policing. Deterrence. 14. In terms of general deterrence, every sworn officer knows full well that they are responsible for the welfare and care of prisoners in their custody and that the application of force beyond what is absolutely necessary for the circumstance cannot and will not be tolerated. The penalty imposed must send a clear message to all police officers that the use of excessive force will and must come with consequences. 15. In addressing specific deterrence, it is evident that Constable Boldirev now recognizes his misconduct and there is no evidence before me to suggest that there is a likelihood that he will fall short of the standard of care of a prisoner in the future. However, the penalty for serious misconduct must again be met with serious consequences as a clear deterrence. Damage to the Reputation of the Police Service. 16. Through the evidence presented, I am left with no doubt that the actions of Constable Boldirev have strained our Service s reputation, particularly within the judiciary who are relia nt on the fair and impartial conduct of police officers in determining fact and holding offenders accountable. Justice Bourgeois found M.H. not guilty of serious criminal charges citing Canadian Charter of Rights breaches, specifically the excessive use of force at the time of his arrest, as the key factor in arriving at her not guilty decision. Consistency of Disposition. 17. Consistency of disposition is most relevant to the circumstances in this hearing and the 7

8 prosecution spent considerable time outlining case law to support his arguments for a fair and reasonable sanction for Constable Boldirev. 18. Inspector Patterson referred me to six Ottawa Police Service decisions that all, to varying degrees, address misconduct involving the excessive use of force. In Batista and Smith and Ottawa Police Service (OCCPS #07-06, May 8, 2007), Constable Batista was given a reprimand for using a conducted energy weapon on a non-compliant and passively resistant prisoner. Constable Cardinal (Cardinal and Ottawa Police Service (Supt. (Ret d) Robert J. Fitches, undated) is a decision that imposed the forfeiture of eight days for a similar act of excessive force but also included a criminal conviction for assault. 19. Constable Bargh (Bargh and Ottawa Police Service (Supt. (Ret d) Robert Fitches, November 16, 2007) involved knee strikes to the head and shoulder area of a grounded subject and Supt. Fitches disposition was, again, a forfeiture of eight days. In his dec ision in Lord and Ottawa Police Service (Supt. (Ret d) Robert J. Fitches, December 17, 2009), 12 days were forfeited for applying force deemed unreasonable, however, there were previous discipline issues, as well as compounding charges of neglect of duty and discreditable conduct which were taken into account. 20. Of particular relevance for consistency of disposition is the decision by Superintendent Don Sweet within Maseruka and Ottawa Police Service, (Supt. Don Sweet, November 29, 2016), wherein Constable Maseruka was found guilty of unnecessary exercise of authority for throwing a subject down two stairs, striking him upon arrest, and later grounding his handcuffed prisoner, with force. Constable Maseruka had similar policing experience (eight years) as Constable Boldirev, acknowledged and accepted responsibility for his misconduct, had no previous history of misconduct, and had commendations for community involvement and policing. The disposition was the forfeit of seven days and one off duty day for use of force training. Ke y Issues. 21. Although finding the misconduct to be on the serious end of the scale, I have taken into 8

9 consideration several mitigating factors in reaching a disposition. Constable Boldirev acknowledges and accepts his actions and the harm that they have done himself and the Service. His guilty plea is viewed as further acceptance and removes the onus on M.H. from appearing before this hearing to testify. Furthermore, there is no previous history of discipline and a positive employment history spanning seven years. 22. As for aggravating factors, the seriousness of the misconduct itself demands a disposition that will send a clear message of deterrence to all Ottawa Police Service officers that there has to be and will be severe consequences for using excessive force while carrying out police duties, partic ularly on prisoners in their custody and care. The tarnishing of the reputation of the Ottawa Police Service and the judiciary repercussions of having possession of controlled substances and counterfeit money charges dismissed by the courts also land clearly on the side of aggravating factors. Part IV: Disposition on Penalty. Disposition. 23. I have taken into thoughtful consideration the joint submission of the facts, the arguments of the Prosecution, previous cases, and the disposition principles to come to a fair and fitting decision. Misconduct has been proven on clear and convincing evidence. The joint submission on penalty has been of particular assistance in reaching a decision and I see no argument or sound reason to vary from the joint submission. 24. Constable Boldirev please stand. You will forfeit seven days (56 hours) in accordance with section 85(1)(f) of the Police Services Act. 25. Further, you will attend, while off duty, the Ottawa Police Service s Professional Development Centre for one day of use of force training in accordance to section 85(7)(b) of the Police Services Act. This is to be completed within three months of this decision. 9

10 Dated at Ottawa, this 21 st day of March, Superintendent Chris Renwick Hearing Officer. 10

11 Appendix A: Book of Authorities. Tab 1: Carson and Pembroke Police Service. (O.C.C.P.S. #06-02, 9 March 2006). Tab 2: Bright v. Konkle, (Board of Inquiry, Ontario Police Services Act). Tab 3: Batista and Smith and Ottawa Police Service (O.C.C.P.S. #07-06, 8 May, 2007). Tab 4: Cardinal and Ottawa Police Service (Supt. (Ret d) Robert J. Fitches). Tab 5: Bargh and Ottawa Police Service (Supt. (Ret d) Robert J. Fitches, 17 November 2007). Tab 6: Lord and Ottawa Police Service (Supt. (Ret d) Robert J. Fitches, 17 December 2009). Tab 7: Jacobs and Ottawa Police Service (Supt. Skinner, 16 November 2012). Tab 8: Maseruka and Ottawa Police Service (Supt. Don Sweet, 29 November 2016). 11