Pubdate: Mon, 11 Feb 2008
Source: Ottawa Citizen (CN ON)
Copyright: 2008 The Ottawa Citizen
Contact: http://www.canada.com/ottawacitizen/letters.html
Website: http://www.canada.com/ottawacitizen/
Details: http://www.mapinc.org/media/326
Author: Andrew Seymour

FULL PAY - FOR NO WORK

Officer's Appeal Of Dismissal Could Drag On For Years

More than a year after Const. Kevin Hall was ordered fired from the
Ottawa police for stealing drugs to feed his crack cocaine habit, he's
still being paid his $71,000 annual salary -- and could continue to do
so for the foreseeable future.

The 44-year-old officer has filed a second appeal of his dismissal
from the police department, asking Ontario's divisional court to
overturn a December 2006 decision that he resign within seven days or
be fired -- a ruling that was upheld two months ago by a civilian
commission that oversees police services in the province.

But in a potentially precedent-setting move that could affect Const.
Hall and other suspended officers like him across Ontario, Ottawa
police have filed a motion asking the court to uphold the disciplinary
hearing decision so they can immediately stop paying his salary and
benefits pending the outcome of the most recent appeal.

The motion, which is scheduled to be heard March 6 in an Ottawa
courtroom, is asking for Const. Hall's appeal to be dismissed outright
on the grounds that he has failed to file all the necessary paperwork
to support the appeal.

If that argument is rejected, Ottawa police are asking the court to
remove their obligation to pay Const. Hall during the appeals process,
which could take up to two more years to complete.

"Two tribunals in Ontario have decided that this man should be
dismissed," said Vince Westwick, director of the Ottawa police's
professional standards section. "Our argument is that the dismissal
should go ahead."

But the association representing Ottawa police officers said it
strongly opposes the police department's motion, accusing the service
of trying to find a way around the Ontario Police Services Act, which
includes provisions preventing officers from being suspended without
pay.

"He hasn't been fired as of yet. He is still technically a member of
the police service," Ottawa police association president Charles Momy
said.

"He has a right to an appeals process. The law says that any members
who are suspended will be paid,"

Mr. Momy said, adding a decision in the police service's favour could
have provincewide ramifications.

It's a precedent that could eventually affect the case of another
Ottawa officer, Const. Alec Moraru, who has also continued to collect
his pay for nearly a year while he appeals his February 2007 dismissal.

Unlike Const. Hall, who was never criminally charged, Const. Moraru
was convicted in criminal court in April 2006 on charges of theft,
assault and uttering a threat after he stole cheese, chocolate bars
and shaving lotion from a Strandherd Drive Loblaws store in December
2004. During the incident, the 13-year veteran also claimed to have a
gun when chased by a store loss-prevention officer. He was handed a
12-month conditional discharge following the conviction.

An appeal of Const. Moraru's dismissal is expected to be heard by the
Ontario Civilian Commission on Police Services on Feb. 22. A decision
in the case isn't likely for several months.

Currently, the law only allows officers who are imprisoned to be
suspended without pay.

Const. Hall's Toronto lawyer, Ken Jull, believes that the police
service will have to present "significant evidence" if they expect the
court ruling to depart from the existing practice that allows
suspended officers to collect their pay until the appeals process is
exhausted.

"I can see it if this appeal was frivolous and without merit. That's
not this case," said Mr. Jull, adding the civilian commission
recognized that Const. Hall suffered from a disability in the form of
his drug addiction, which now puts the onus on the police service to
accommodate his disability under Ontario's Human Rights Code, not
dismiss him.

Mr. Jull, who believes Const. Hall has a strong case for
reinstatement, said the officer has been drug-free for several years
and is willing to take random drug tests -- an "extraordinary
mechanism" to protect the police service and the public.

"This is not a case of someone who tested positive last week and is
saying 'give me my job back'," said Mr. Jull.

Mr. Westwick said the police service is in no way seeking to challenge
the Police Services Act legislation relating to suspensions, even if
police departments are frequently frustrated because the law prevents
them from suspending members without pay when they feel it is warranted.

"We're not addressing the suspension issue at all," said Mr. Westwick.
"That's in the law and there is nothing we can do about it."

Mr. Westwick said the Ottawa police are only attempting to provide the
court "options" to expedite the appeals process. He said this is the
first time the service has made a motion asking a court to allow them
to stop paying a suspended officer while they fight an appeal.

"We're not out to deny him any rights in any way," said Mr. Westwick,
adding it has already taken more than two months just to get a court
date to hear the police service's motion. "We're trying to say to the
court, 'move this matter along and here are some ways you can do it'."

But Ottawa police Chief Vern White believes police departments need
some type of mechanism to allow officers to be suspended without pay
when it is warranted.

Chief White said he would like to be able to apply to an outside
agency, such as the civilian commission, to have an officer suspended
without pay in cases where the public is "outraged."

Const. Hall, who was a first class constable at the time he was
ordered dismissed, admitted during the disciplinary hearing to taking
crack cocaine from motorists he stopped as well as from the evidence
locker for his personal use. He was never criminally charged.

After being ordered dismissed, Const. Hall filed an appeal with the
Ontario Civilian Commission on Police Services, which upheld the
original ruling.

Following that decision, Const. Hall then filed a second appeal with
the divisional court. The divisional court deals with appeals of
decisions reached by administrative hearings and tribunals.

In his appeal, Const. Hall argued the hearing officer did not give
proper consideration to the fact that drug addiction is considered a
disability under the Ontario Human Rights Code.
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