OTTAWA POLICE SERVICE DISCIPLINE HEARING

Transcription

1 OTTAWA POLICE SERVICE DISCIPLINE HEARING IN THE MATTER OF ONTARIO REGULATION 268/10 MADE UNDER THE POLICE SERVICES ACT, RSO 1990, AND AMENDMENTS THERETO; AND IN THE MATTER OF THE OTTAWA POLICE SERVICE AND CONSTABLE SEAN RALPH #6038 CHARGE: DISCREDITABLE CONDUCT X2 INSUBORDINATION DISPOSITION WTH REASONS Before: Superintendent Chris Perkins Halton Regional Police Service Appearances: Counsel for the Prosecution: Ms. Christiane Huneault Ottawa Police Service Counsel for the Defence: Mr. Mike Lamothe Ottawa Police Association Hearing Date: December O.P.S. & Constable S. Ralph January 2017 Page 1

2 THE HEARING Constable Sean Ralph has pleaded guilty and been found guilty of three counts of misconduct, in that he: Committed discreditable conduct, in that on or about July 22 nd, 2015, he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ottawa Police Service, in that he failed to serve or notify of 2 Provincial Offence Notice Warnings he produced, contrary to section 2(1)(a)(xi) of the prescribed Code of Conduct, Ontario Regulation 268/10, as amended, and therefore contrary to section 80(1) of the Police Services Act. And further that he: Committed discreditable conduct, in that between February 12th, 2015 and August 28th, 2015, he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ottawa Police Service, when he produced Provincial Offence Notice Warnings in which no evidence to support the offence was apparent or existed, contrary to section 2(1)(a)(xi) of the prescribed Code of Conduct, Ontario Regulation 268/10, as amended, and therefore contrary to section 80(1) of the Police Services Act. And further that he: Committed Insubordination, in that between January 7th, 2015 and November 6th, 2015, he did, without lawful excuse, disobey a lawful order namely Ottawa Police Policy #2.02 on Duty books/note taking, pertaining to the making of electronic or written notes to document the offence stipulated on Provincial Offence Notices, contrary to section 2(1)(b)(ii) of the prescribed Code of Conduct, Ontario Regulation 268/10, as amended, and therefore contrary to section 80(1) of the Police Services Act. AGREED STATEMENT OF FACTS Constable Sean Ralph and Charles Bordeleau, Chief of Police of the Ottawa Police Service, through counsel, agree to and admit the following facts: The respondent officer, Constable Sean Ralph #6038, is a sworn member of the Ottawa Police Service (OPS). Constable Ralph originally joined the OPS as a special constable in 1999; Constable Ralph became a sworn member in On November 3 rd, 2015, the OPS Professional Standards Section (PSS) conducted a quality assurance audit related to issuing Provincial Offence Notice (PON) warnings to members of the public. The goal of this audit was to verify that OPS members were both properly warning drivers and using sound practices during PON traffic stops. O.P.S. & Constable S. Ralph January 2017 Page 2

3 The PON audit identified issues with Constable Ralph s PON warnings and was referred to PSS for further investigation. PSS subsequently detected inconsistencies in Constable Ralph s conduct when issuing PONs to the public. Specifically, Constable Ralph did not follow OPS policies and procedures, including Policy 6.13 Provincial Offence Notices and Policy 2.02 Duty Books/Note Taking. On February 12 th, 2015, Constable Ralph engaged in a traffic stop for the offence of disobey official sign. Constable Ralph entered one charge and two warnings on the PON system: PON Z for the offence of disobey official sign, s.86 Ottawa City Bylaw ; PON Z for the offence of fail to surrender insurance card, s.3(1) CAIA; and PON Z for the offence of fail to surrender permit, s.7(5)(a) HTA. Constable Ralph informed the driver of the charge for failing to obey the official sign, which the driver acknowledged (PON Z). The driver indicated he provided the officer with all required documents and denied being warned about the permit; the officer s duty book did not contain the basis for this warning. Constable Ralph had no apparent evidence to support the offence of fail to surrender permit (PON Z). On February 13 th, 2015, Constable Ralph engaged in a traffic stop for the offence of drive in designated bus lane. Subsequently, Constable Ralph entered three warnings on the PON system: PON Z for the offence of disobey official sign, s86 Ottawa Bylaw ; PON Z for the offence of fail to surrender insurance card, s3(1) CAIA; and PON Z for the offence of fail to surrender permit, s7(5)(a) HTA. Constable Ralph warned the driver of the designated bus lane, which the driver acknowledged (PON Z). The driver indicated she provided all required documents to the officer and denied failing to surrender the insurance card or the permit; the basis for these warnings was not indicated in the officer s duty book. Constable Ralph issued PON Z and PON Z without apparent evidence to support the offence. On March 27 th, 2015, Constable Ralph engaged in a traffic stop for the offence of no validation on plate. Constable Ralph entered three warnings on the PON system: PON Z for the offence of fail to surrender insurance card, s3(1) CAIA; O.P.S. & Constable S. Ralph January 2017 Page 3

4 PON Z for the offence of no currently validated permit, s7(1)(a) HTA; and PON Z for the offence of no validation on plate, s7(1)(c)(i) HTA. Constable Ralph informed the driver of the expired validation sticker and permit, which the driver acknowledged (PON Z and PON Z). The driver indicated she provided all required documents to the officer and denied failing to surrender the insurance card; the basis for this warning was not indicated in the officer s duty book. Constable Ralph had no apparent evidence to support the offence of fail to surrender insurance card (PON Z). On July 22 nd, 2015, Constable Ralph engaged in a traffic stop for the offence of speeding. Subsequently, Constable Ralph entered two charges and one warning on the PON system: PON Z for the offence of speeding, s128 HTA; PON Z for the offence of fail to surrender insurance card, s3(1) CAIA; and PON Z for the offence of fail to surrender permit, s7(5)(a) HTA. Constable Ralph informed the driver of the speeding charge, which the driver acknowledged (PON Z). The driver provided the license to the officer and after initially searching for the other documents, the officer indicated the insurance and permit were not needed. The officer acknowledged the driver was not served with the charge of fail to surrender insurance card. In addition, the driver denied being warned about the permit and the officer s duty book does not indicate if this warning was issued. Constable Ralph failed to serve or notify the driver with PON Z and PON Z. On July 22 nd, 2015, Constable Ralph engaged in a traffic stop for the offence of speeding. Constable Ralph entered one charge and one warning on the PON system: PON Z for the offence of speeding, s128 HTA; and PON Z for the offence of fail to surrender permit, s7(5)(a) HTA. Constable Ralph informed the driver of the speeding charge, which the driver acknowledged (PON Z). The driver indicated she provided all required documents to the officer and denied being warned about the permit; the basis for this warning was not indicated in the officer s duty book. Constable Ralph had no apparent evidence to support the offence of fail to surrender permit (PON Z). O.P.S. & Constable S. Ralph January 2017 Page 4

5 On July 25 th, 2015, Constable Ralph engaged in a traffic stop for the offence of disobey official sign. Subsequently, Constable Ralph entered one charge and two warnings on the PON system: PON Z for the offence of disobey official sign, s86 City of Ottawa Bylaw ; PON Z for the offence of fail to sign ownership in ink, s8(1) HTA; and PON Z for the offence of fail to surrender permit, s7(5)(a) HTA. Constable Ralph informed the driver of the disobey official sign charge, which the driver acknowledged (PON Z). The driver also acknowledged that the ownership was not signed in ink (PON Z). The driver indicated he provided all required documents to the officer and denied being warned about failing to surrender the permit; the basis for this warning was not indicated in the officer s duty book. Constable Ralph had no apparent evidence to support the offence of fail to surrender permit (PON Z). On August 28 th, 2015, Constable Ralph engaged in a traffic stop for the offence of drive without proper headlights. Subsequently, Constable Ralph entered one charge and two warnings on the PON system: PON Z for the offence of drive without proper headlights, s62(1) HTA; PON Z for the offence of fail to surrender insurance card, s3(1) CAIA; and PON Z for the offence of fail to surrender insurance card, s3(1) CAIA. Constable Ralph warned the driver about the malfunctioning headlight, which the driver acknowledged (PON Z). The driver indicated she provided all required documents to the officer and denied being warned about failing to surrender the insurance card; the basis for this warning was not indicated in the officer s duty book. Constable Ralph had no apparent evidence to support the offence of fail to surrender insurance card (PON Z). In addition to the above, between January 7 th, 2015 and November 6 th, 2015, Constable Ralph issued 55 PONs without making notes in his duty book or on the e-ticket itself. Constable Ralph has one prior Police Services Act charge for insubordination dated January 30 th, On several occasions Constable Ralph has received letters of recognition from the Chief of Police for attending work regularly and maintaining good health. O.P.S. & Constable S. Ralph January 2017 Page 5

6 Based on the foregoing facts, on 19 December 2016, Constable Ralph appeared before Superintendent Chris Perkins of the Halton Regional Police Service and pleaded guilty to two counts of discreditable conduct as specified in Section 2 (1) (a) (xi) of the Schedule, Code of Conduct, Ontario Regulation 268/10, and one count of insubordination as specified in Section 2(1)(b)(ii) of the prescribed Code of Conduct, Ontario Regulation 268/10, as amended, and is thereby guilty of misconduct (x3) contrary to Section 80 (1) (a) of the Police Services Act, R.S.O SUBMISSIONS ON DISPOSITION Constable Ralph and the prosecutor acting on behalf of Charles Bordeleau, Chief of Police, jointly agree that the appropriate penalty for the misconduct set out above is the reduction in rank from First Class to Second Class Constable for a period of nine (9) months. Once misconduct has been established, it is proper for the Tribunal to consider, where relevant, a variety of factors in determining an appropriate disposition. These include the following considerations: 1. Public Interest 2. Seriousness of the Misconduct 3. Remorse 4. Employment History 5. Ability to Reform or Rehabilitate the Officer 6. Need for Specific and General Deterrence 7. Damage to the Reputation of the Service 8. Handicap or Other Relevant Circumstances 9. Effect on the Officer and his/her Family 10. Management s Approach to the Misconduct 11. Consistency in Penalty 12. Effect of Publicity The prosecution submits that the objectives of discipline are to correct unacceptable behaviour, to deter others from similar behaviour and to assure the public that the police are under control. The considered factors may be relevant to aggravating or mitigating an appropriate penalty. The prosecution submits that the proposed joint position on penalty addresses these important penalty factors, and provided a summary of which factors to draw to the Tribunal s attention, and these were adopted by the defence. They are as follows: Public Interest One of the objectives of police discipline is the protection of the public. Any penalty imposed by a hearing officer must impress upon the public that misconduct on an officer s part attracts appropriate sanctions. One of the Legislative purposes of the Police Services Act is to increase confidence in the provision of police services in O.P.S. & Constable S. Ralph January 2017 Page 6

7 Ontario, including disciplinary matters. It is imperative that the public have faith in police officers in order for the police service to effectively carry out its function. Public interest requires that all person s interests must be protected; the officer, the public and the persons affected. Constable Ralph s standard of conduct in this matter fell well below the reasonable expectation the public and the Service has of its police officers. It is unacceptable when a police officer intentionally misrepresents the truth. The community in general will be shocked to find out that Constable Ralph intentionally issued a total of seven (7) Provincial Offence Notice Warnings without any evidence to support the offences. In addition, Constable Ralph failed to serve or notify members of the public with two PON warnings. The public will be especially shocked to find out Constable Ralph failed to keep any notes to document fifty five (55) PON warnings he issued between January 7, 2015 and November 6, These facts will no doubt affect the confidence of community members who trust officers to enforce laws in a truthful manner and properly document the facts surrounding an event. Seriousness of the Misconduct Constable Ralph s decision on seven (7) separate occasions to issue PON warnings without any evidence to support the offences is serious in nature. This misconduct resulted in inaccurate PON warnings being uploaded into the electronic OPS records management system. It is also deemed serious the fact Constable Ralph repeatedly failed, over an extended period of time, to make notes for offences on PONs that he legitimately issued. This is not misconduct that can be explained as an isolated momentary lapse of judgment. There is no excuse for his behavior. Constable Ralph will now be McNeil positive and will be subjected to cross examination on the facts surrounding his misconduct in an attempt to impeach his credibility and reliability. There is no doubt this type of misconduct will have an impact on the officer s ability to give evidence in future matters and as a result creates additional risks in the future to investigations he may be involved with. Recognition of the Seriousness of Misconduct Constable Ralph has pleaded guilty at the very first opportunity and by doing so acknowledges responsibility for his actions. This is a significant mitigating factor and it should be acknowledged that he has accepted responsibility for his behaviour. Constable Ralph fully cooperated with the Professional Standards investigation and advised PSS that he understands his actions were inappropriate and he takes full responsibility for them. As well, Constable Ralph has recognized the potential impact of his actions on the drivers that were issued false PONs. O.P.S. & Constable S. Ralph January 2017 Page 7

8 Potential to Reform or Rehabilitate the Police Officer Constable Ralph was hired by the Ottawa Police in 1999 as a special constable and in 2002 was hired as a sworn member. Although his actions in this case were misguided, there is no reason to believe that his behaviour will re-occur. Constable Ralph has one previous incident of serious misconduct dating back to January 30 th, 2015 where he conducted three unauthorized queries of the Records Management System. Constable Ralph was ordered to forfeit 48 hours. Specific and General Deterrence Police officers are held to a higher standard. The Ottawa Police Service does not condone behavior as exhibited by Constable Ralph. The penalty in this case should send a clear message to the public and all officers in the service that this type of conduct is not acceptable and will not be tolerated. The public must be reassured that they will be dealt with by the police in an honest and professional manner. Therefore Constable Ralph s misconduct must be met with serious consequences. The penalty must be serious enough to deter him from ever considering acting in a similar manner again and appearing before this Tribunal. The penalty must be a reminder to Constable Ralph that he must ensure there is sufficient evidence when issuing PON warnings and that he must follow established policies with respect to duty book notes. As for general deterrence, the penalty must be serious enough to send a message to other officers in order to deter them from this type of conduct. The Service wants to send a clear message that the misrepresentation of information when issuing PON warnings will not be tolerated and that the Service expects all officers to follow policy regarding duty book notes. Reputation of the Police Force and Effect of Publicity The misconduct exhibited by Constable Ralph will come to the attention of the public and other Ottawa Police Service members. The disciplinary decision will be posted on the Ottawa Police Service webpage for members and the public to read. This incident has the potential to have a serious effect on the reputation of the police service. The actions of Constable Ralph will no doubt affect the confidence of members of the community in all future interactions with the police. The community has a basic expectation that police officers are acting in an honest manner and will only issue Provincial Offence Notice Warnings that are supported by evidence. Consistency of Disposition The prosecution asserts there is no exact fit for these particular circumstances in case law decisions and asks the Tribunal to consider the following previous OPS decisions: O.P.S. & Constable S. Ralph January 2017 Page 8

9 In the case of Constable Covic and OPS (June 17, 2016), the officer issued 4 PON warnings to 2 separate individuals for infractions that had not taken place. The officer demonstrated remorse and took full responsibility for his actions. The Service and Defence submitted a joint position on sentencing. The Hearing Officer accepted the joint position on penalty and ordered a demotion of 7 months. In the case of Constable Tierney and OPS (July 11, 2016), the officer issued 15 PON warnings to 9 separate individuals for infractions that had not taken place. He failed to take notes on 154 PON warnings and failed to serve 5 legitimate warnings. The officer demonstrated remorse and took full responsibility for his actions. The Service and Defence submitted a joint position on sentencing. The Hearing Officer accepted a joint position on penalty and ordered a demotion of 12 months. In the case of Constable Ellis and OPS (September 7, 2016) the officer issued 33 PON without evidence to 31 separate individuals. Constable Ellis failed to serve and/or verbally warn 8 different drivers of valid PONS warnings. In addition, the officer also failed to make any notes on 5 valid PONs. The officer pleaded guilty on his first appearance. The Hearing Officer accepted a joint position on penalty of a demotion for a period of 18 months. In the case of Constable Danson and OPS (October 11, 2016) the officer failed to serve and/or verbally warn 3 different drivers of 5 valid PONS warnings. The officer pleaded guilty to Discreditable Conduct. The Hearing Officer accepted the joint position on penalty and ordered a demotion for a period of 4 months. The prosecution submits that these cases should be considered when assessing disposition with respect to Constable Ralph. In the case before the Tribunal, it submits that the proposed penalty is within the acceptable range for cases involving the misrepresentation of facts. Conclusion The prosecution submits the suggested penalty reflects both the mitigating and aggravating factors applicable in this case. The officer has acknowledged the misconduct and pleaded guilty. This eliminates the need for a trial that would have involved calling members of the public and fellow officers to testify. The misconduct of Constable Ralph was serious and not in keeping with the expectations of the Ottawa Police Service; the reputation of the police service has been tarnished in the mind of the public, the numerous involved drivers and other police officers. Constable Ralph has one incident of previous misconduct on his file. The prosecution submits that the jointly recommended penalty of a demotion for nine (9) months will serve to reassure the public that the police are accountable, and officers who breach their trust are dealt with appropriately. O.P.S. & Constable S. Ralph January 2017 Page 9

10 Defence Comments Constable Ralph was administratively moved in March 2016 from his Traffic Escort Services position as a result of this internal inquiry. In November 2015, Constable Ralph was counselled about the importance of note taking. He indicates that no supervisor had ever spoken to him about notes. At his November 2016 PSS interview, the investigator acknowledged Constable Ralph s impeccable note taking during that past year (2015 to 2016). This indicates Constable Ralph has moved forward in his note taking skill over the last year. Constable Ralph reports stress on his family for the preceding nine months regarding the unknown and when the matter would be brought to hearing. ANALYSIS The law is clear in how a suitable disposition shall apply when misconduct has been established, and guides the Tribunal with five principles to consider: 1. The penalty must concur with the actual purpose of police discipline: The police service s interest in maintaining discipline The rights of the respondent officer to be treated fairly The public interest, confidence and expectations of high standards 2. The process must focus more on rehabilitation and correction than punishment. 3. The penalty meted out should be the most favourable in the circumstances. 4. The penalty should be proportionate to the circumstances and balance aggravating and mitigating factors. 5. Police officers are held to a higher standard of conduct compared to others. In determining a suitable disposition in this matter, the Tribunal has heard submissions representing the position of both parties and has given careful consideration to this information. After a finding of guilt, the Tribunal must determine if the proposed sanction achieves the objectives as set out above; balancing all of these factors will assist in the final decision. The misconduct relative to this charge has been adequately described by the prosecution and the defence has acquiesced to its substance. Additionally, the joint submission on penalty has established aggravating and mitigating factors that speak to the appropriateness of the proposed penalty. The well entrenched penalty factors described in the jurisprudence of police discipline; the public interest, the nature of the misconduct, and the damage to the reputation of the police service all relate, in my view, to the concept of public trust in policing, and our willingness and ability to address wrong doing when it surfaces. O.P.S. & Constable S. Ralph January 2017 Page 10

11 We are fortunate in Canada to defer to the tenet of policing by consent. The application of our authority to police our fellow citizens is derived from the implicit consent of those fellow citizens. The statutory office of Constable is provided with tremendous powers bestowed upon us by the very public we serve. This consent then is inherently connected with the tremendous level of trust provided us. Police officers perform difficult and sometimes disagreeable tasks on a daily basis, the circumstances of which seldom come to the attention of the general public. By contrast, acts of misconduct such as those committed by Constable Ralph receive considerable attention, are not easily forgotten, and serve to tarnish the image of policing. The fact that Constable Ralph was charged was widely reported in the media. They were present at his guilty plea and heard the facts of the case. No doubt they will also report on the outcome of this matter. In addition to the prejudice to overall discipline, the reputation of the Service has also been damaged. As has been well articulated in the joint submission regarding penalty, Constable Ralph s misconduct will have had a damaging effect on the reputation of the Ottawa Police Service and on the policing community generally. That public trust in policing remains fragile and the actions of an individual officer can influence many. Public support for policing ebbs and flows, dependent on a variety of influences. While support and trust must continually be earned, it takes very little to erode it. I concur with the joint submission that the public would be shocked to hear that Constable Ralph deliberately, and over a course of time, misrepresented facts while engaged in the normal course of his duties. While it was never established before this Tribunal, the motive for the misconduct can be inferred. That it had to do in some fashion with performance metrics is certain. This then also serves to undermine the performance of Constable Ralph s peers, who have not engaged in such behavior, and diminishes their efforts to aspire to a particular level of productivity. Constable Ralph will now be bound by the ruling in Regina v McNeil; the burden on the Crown to disclose records of police misconduct. The ultimate impact of this with respect to Constable Ralph is unknown, but the implication is clear; this has the potential to significantly affect any future cases in which he may become involved. Accordingly, the impact Constable Ralph s misconduct has had on the relationship between the public trust and the Ottawa Police Service, and the policing community in general, is a significant aggravating factor. Constable Ralph has pleaded guilty at Count #3 in relation to the failure to make any notes in some fifty five (55) PON instances over the course of ten months. The purpose of a police officer recording notes is to provide a clear and creditable record of the officer s actions and observations of various matters and may be of O.P.S. & Constable S. Ralph January 2017 Page 11

12 significant use at a later time to refresh their memory, and/or to provide an accurate record of an event. I m troubled by any assertion that no supervisor had ever spoken to him about his notes. I m left with the inference here that Constable Ralph may have been unaware of the importance of accurate note keeping. I find this somewhat incredible; the accurate recording of facts is the bread and butter of policing, and would have been instilled in Constable Ralph at the most basic level of police training. It is however, encouraging to hear that a PSS investigator saw fit to comment on Constable Ralph s impeccable notes since November of Cleary, Constable Ralph has found some inspiration in this regard and I find this is a mitigating element in this case. The administration of the police disciplinary process demands that the issue of specific and general deterrents are addressed. I don t believe the Tribunal need dwell on the specific deterrent in this case; there is no reason to believe Constable Ralph will reoffend and find himself once again before a Tribunal. With respect to general deterrents, some consideration must be given to the result of this matter being made known among the broader population of police officers. Honesty and integrity are fundamental elements of the policing profession. There must be unequivocal condemnation by the employer that when police officers fall short of the legitimate expectations of exemplary behavior, their conduct will quite rightly be examined and subjected to discipline. Constable Ralph has recognized the seriousness of the misconduct and has pleaded guilty at his first opportunity. He was cooperative with the investigation and readily admitted his impropriety. This is to his credit, and will prevent a full Police Services Act hearing, and the need for members of the public to give evidence. This is a mitigating consideration. Constable Ralph still has roughly half his career ahead of him, and no doubt he has much to offer the Ottawa Police Service and the citizens of Ottawa. He can now put this experience behind him and move forward. While the issue of adverse publicity has been considered, given that Constable Ralph represents the police service, there is also some consideration to be given to the effect this will have had on him personally. This unsavory period of his public service will have had some impact on his reputation; in the eyes of his colleagues, his associates, his family and members of the local community who know him. He has experienced a significant period of uncertainty while awaiting the outcome of this case, this is especially so given his readiness to accept both responsibility and his penalty. Notwithstanding he is the sole author of this situation, it should also in my view, be considered as representing some degree of mitigation. DISPOSITION The prosecution and defence are jointly recommending the imposition of a penalty of a reduction in rank from First Class Constable to Second Class Constable. I find the demotion recommended is fair, measured and appropriate in the circumstances, taking O.P.S. & Constable S. Ralph January 2017 Page 12

13 into account all of the aggravating and mitigating factors associated with the misconduct, and with respect to the consistency of previous dispositions. Constable Ralph, please stand. You will be demoted in rank to Second Class Constable for a period of nine (9) months in accordance with Section 85(1)(c) of the Police Services Act. Superintendent Chris Perkins Halton Regional Police Service 21 February 2017 O.P.S. & Constable S. Ralph January 2017 Page 13