Police officer accused of incompetence wins in appeal court

Lawsuits against police and police-related pertinent court decisions.

Police officer accused of incompetence wins in appeal court

Postby Thomas » Sun Aug 21, 2016 4:46 am

Police officer accused of incompetence eager to return to work after appeal court decision

An officer the Ottawa police had asked to resign because of poor performance is now eager to get back to work after winning his appeal and $15,000 in legal costs at Ontario’s top court.

The court decision made in favour of Const. Emmanuel Diafwila is the latest in a long and complicated legal saga between Diafwila and the police force.

Diafwila was hired as a fourth-class constable in 2006 and, in total, received about 1,100 hours of training over several years — more than double the amount given to new recruits.

In 2009, he was informed that efforts would be made to improve his performance but after coaching by other officers and a stint in a desk job, Ottawa police “gave up” and he was placed on leave.

In March 2013, Diafwila, then 32, was ordered to resign or be fired for unsatisfactory work performance under the Police Services Act. The hearing officer in Diafwila’s case concluded that despite efforts at training and mentoring, the officer was “simply not suited to many if not most aspects of policing.”

Examples at the hearing included asking witnesses leading questions, placing a woman resisting arrest on her face in the back seat of a cruiser, being unable to work handcuffs and running stop signs.

Diafwila appealed to the Ontario Civilian Police Commission, which ordered in March 2014 that he be reinstated as a second-class constable.

The commission found that the original hearing officer erred in fact and law. It found the force didn’t comply with its own policies before trying to fire Diafwila — for example, not completing performance reviews, giving him a chance to respond to reports or resolving a complaint of workplace harassment.

The OCPC decision was appealed by Ottawa police to the Divisional Court.

In March 2015, the Divisional Court set aside the commission’s “perverse” decision, finding it was over-enforcing a regulation that set out what needed to be done by the police force before an officer could be fired for on-the-job performance.

And then on Tuesday, Diafwila’s legal battle with the force took another twist.

A Court of Appeal for Ontario panel allowed Diafwila’s appeal of the Divisional Court ruling.

Allowing the appeal has the effect of reinstating Diafwila, wrote Justice Bradley Miller. He noted the constable succeeded on “administrative law grounds” in the appeal heard in January.

A spokeswoman for Ottawa police said the force will not make any comment until it has a chance to review the ruling.

“I do not pronounce on the ultimate issue – his fitness to serve as a police officer,” Miller wrote. “That remains an ongoing matter within the purview of the (Ottawa Police Service), for the OPS to address according to the policies that it created but did not, in this instance, follow.”

However, the appeal court decision noted that “there were concerns about his technical policing skills and his ability to make sound, independent decisions in the patrol setting.”

Diafwila’s lawyer, Paul Champ, said the decision is a win not only for his client but for all police officers in Ontario.

“For my client, it means that he is fully reinstated and able to carry out his duties as a police officer,” Champ said. “If in the future performance of his duties, the Ottawa police has any concerns about his performance, they will need to raise them with him in accordance with their policies.

“The decision is also, however, important for all police officers across Ontario for the same reason.”

Diafwila, the first officer asked to quit over performance issues, “absolutely” wants to resume a policing career.

“He’s very committed to community service – that’s always really been his passion,” Champ said, adding that his client and those officers who testified on his behalf feel he’s a good officer.

“He’s anxious to get back to work and show what he can do.”

The police service’s final avenue of appeal would be to the Supreme Court of Canada.

http://ottawacitizen.com/news/local-new ... t-decision
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