A Time for Change

 

 

Bob Fitches                                                                           Glen Donald

R.J. Fitches Inc.                                                                  Glen Donald Law   

Orillia, Ontario                                                                      London, Ontario

 

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The Discipline process that is currently in use in Ontario for pursuing allegations of police misconduct has remained virtually unchanged for decades.  While there have been some tweaks to the system, the basic procedures remain as they have always been.  It is time for a much needed change in how we deal with such things!

 

With the passage of time, several developments have caused the present system of discipline to become bogged down and consequently, less effective than it once might have been.  Let us not forget that the designers of the present system sought to balance a quick response to misconduct with the need for due process.  As time marched on, developments have eroded the efficacy of the model.  Included among the factors which have altered the landscape are:

 

·         The introduction of the trappings of the criminal law process which have caused the disciplinary process to buckle under the weight of the more cumbersome procedure(s);

·         The increased ease through which an ever vigilant public (armed with cell phone cameras) may make allegations of misconduct;

·         The occasional strained relationship that sometimes exists between officers' associations and police management.

 

On their own, none of these developments would be cause for alarm.  The cumulative effect, however, makes it such that hearings often now span several days; and more.  As a result, the costs to all parties for the preparation and presentation of their respective cases have risen exponentially so that now, police organizations and associations are faced with enormous legal bills; bills that can create significant financial hardships to each entity.  The acrimony between or among the parties to the proceedings often raises the temperature within the hearing room to levels never anticipated.  In situations where a public complainant opts to participate in the proceedings as a party – as is their right – the proceedings can often become extremely difficult to manage, thus adding to the length and cost of the proceedings.  Moreover, public complainants sometimes enter the process with unrealistic expectations relative to both the hearing itself and its likely outcomes.  When these expectations are left unfulfilled, they sometimes leave the proceedings with the sense that their concerns fell upon deaf ears. 

 

The system as we know it does little to enhance the community's trust in policing.  The present system often also causes long lasting difficulties in the relationship between the officer and her organization.  The combination of these realities is larger than the sum of its component parts and this is obviously an outcome that is neither sustainable nor in the public interest.

 

With this in mind, we were certain that there had to be a more productive way to deal with a large portion of police discipline cases.  It is time for a refocusing of priorities in the realm of police discipline. 

 

An ideal discipline system is one that modifies officer behaviour and/or organizational culture (where required) in order to ensure that communities are being provided with the level and quality of service to which all officers and police services strive to maintain in a timely, productive and cost-effective manner.  It is our view that this set of priorities is attainable within a system that also recognizes the difficult job that officers have sworn an oath to perform while maintaining (if not enhancing) the fine but necessary balance in the public's ongoing relationship with the police.

 

It is time to implement a conciliatory process within the police discipline system.  Such a system would allow for allegations of misconduct to be viewed within their proper context and thus allow for constructive and rehabilitative resolutions to disciplinary matters.  A system such as this would allow for some creative solutions which would have a net positive impact on the communities’ perception of policing and police discipline.  These types of solutions can be arrived at quickly and cost-effectively.  These are precisely the results that our system is designed to deliver.

 

At present, when an officer is alleged to have committed an act of misconduct, a Notice of Hearing is usually the document that results from the investigation.  Such a notice ultimately causes the officer to attend at a hearing, where the prosecutor will introduce evidence – much in the same way as police officers do in their day to day prosecution of provincial and federal statutes - in an effort to prove the allegation(s) on a balance of probabilities.  The officer, through counsel, and likely with the support of his or her association may quite properly put forth a defence, in fact or law, designed to see the officer found "not guilty".  This is the very definition of an adversarial system.  Even in cases where the allegations are admitted by the officer, there is often wide disagreement about the appropriate penalty.  Inadvertently, a system designed with fairness in mind creates discord and disharmony that, far too often, linger far beyond the end of the hearing itself.

 

The conduct of most police officers who find themselves facing disciplinary proceedings is often described as out of character for the officer in question.  The out of character behaviour is frequently seen to be the result of a stressful or unusual situation either at work or in the officer's personal life.  In such instances, a Conciliatory model would allow for an effort aimed at achieving a creative but appropriate resolution to a disciplinary matter without the acrimony and resentment that is so often once of the unintended consequences of the formal hearing process.  The innovation which we propose contemplates the participation of all parities – including the public complainant.    Our process will involve and engage the public complainant in order to first give them some understanding about the realities of both policing and of police discipline.  Imbued with a broader understanding of these realities, positive outcomes will not only be attainable but they can foster renewed public confidence not only in the realm of police discipline but in policing generally.

 

It is noteworthy that nothing about our proposal prevents a formal hearing from taking place in those instances where the matter(s) are not capable, for whatever reason, of being resolved during the attempt at conciliation.  Indeed, we recognize that there will be cases (those where nothing short of dismissal is acceptable from the perspective of the police service) where the conciliation model is unlikely to fully resolve the disciplinary matter.  The conciliatory approach serves a useful purpose even in cases which cannot be fully resolved.  In the limited number of cases where a full resolution has not occurred, the conciliation can narrow the issues to be litigated at the hearing proper.  The result is a shorter, more focused – and consequently - a less costly hearing.

 

From time to time, officers who are facing disciplinary actions retreat into the temporary safety of their solicitor-client relationship - they disengage from the realities of the prosecution that awaits and communication between the officer and his or her employer stops.  The officer, sometimes while suspended, waits for disclosure.  There can be further lengthy delays awaiting the hearing, which itself is subject to further adjournments.  Prosecutions, and the corresponding effect of being prosecuted, most often have the natural effect of polarizing the sides.  As a result conversations between the parties (opponents) ends.  If justice delayed is justice denied, there is very little justice in the current system.

 

The usual cost of the litigation (preparation and hearing) can generate invoices that would stagger the most hearty accounts payable department.  We believe that resolving a significant number of disciplinary cases in a fraction of the time and at a fraction of the cost is now realistic.  The implementation of such a system, even over a brief period of time, would result in savings of tens of thousands of dollars.  These potential savings would be a benefit to police services, associations and the public at large.

 

Above and beyond the actual cost savings, however, is the positive impact that Conciliation can have upon the individual officer and the resulting, exponentially positive impact upon the organization. 

 

When disciplinary proceedings become prolonged over several months or more, one result is enormous stress on the individual officer.  In turn, even subconsciously, his or her performance and overall wellbeing often suffers.  Consequently, the morale in the unit in which the officer is employed is effected as a disciplinary process hangs over the head of one of its colleagues.  Only the most remarkable individuals are able to maintain a positive outlook in the face of such a situation.  It goes without say that the quicker these matters can be resolved, the quicker the workplace can return to normal. 

 

As things now stand across Ontario, there are often excessive delays in getting matters before a hearing.  There is a host of reasons for such delays, but the availability of legal counsel (a reality not a criticism), is often at the root of these problems.  When conciliation serves to resolve a significant portion of the disciplinary matters, the result ought to be less backlog within the system.  In turn, the more serious matters (the dismissal cases) ought to be completed in a much more timely fashion. This can have the potential for reducing the pressures on the organizations and the associations and perhaps have the collateral effect of altering the narrative around the issue of suspensions with or without pay.  For if serious allegations of misconduct can be dealt with more quickly, the instances of officers being on suspension with pay for months or years awaiting their hearings can be drastically reduced.

 

There are some who would advocate for a ‘discipline now grieve later’ approach.  At first blush, this seems to lighten the load on the administration, in that discipline issues can be dealt with rather quickly and not all discipline would be challenged by way of a grievance.  One of the shortcomings to such an approach, in our view, is that it can either create or aggravate a negative relationship between associations and police administrators.  Such a system could very easily have a dramatic and unfortunate impact upon labour relations and a sense of cooperation within the police service and between and among the parties.  When one assesses the outcomes of labour relations tribunals and grievance settlement boards across the country, it is not difficult to conclude that the notion of deliberately creating such a scenario may not be in the best interests of any of the parties regularly or occasionally involved in the discipline process.

 

The method that we envision for employing Conciliation in the discipline process is quite simple.  It would begin by having the Chief of Police and the Association agree to request Conciliation of the disciplinary matters.  By design, the participation in Conciliation will have no negative impact on the rights of either party should the matter then require a formal hearing.  The whole notion of Conciliation is that it provides an ‘off ramp’ for the organization, the officer, the association and, where applicable, the public complainant, that would permit the disciplinary matters to be dealt with in a more creative, timely and thoughtful fashion.  Our proposal draws upon the experience, creativity, impartiality and common sense of two individuals whose core values align entirely with the fundamental principles at the root of police discipline.  This proposal has met with the strong approval and support of academics, Judges and colleagues for its forward thinking, progressive approach.  It presents the participants in the present system with the ability to do much more for much less, much more quickly.  We believe strongly that this methodology is timely, appropriate and truly worth exploring when disciplinary matters arise.

 

It truly is a time for change!

 

[Bob Fitches is a retired O.P.P. Superintendent who has spent over 20 years presiding over Police Services Act disciplinary hearings.  Bob can be reached at 1-888-325-6164]

 

[Glen Donald is a lawyer who has been giving advice to officers and associations relative to disciplinary matters for more than 13 years.  Glen can be reached at 519-679-9250]