The OPP officer who detained a GuelphToday reporter at a fatal collision scene last December committed misconduct when he seized the reporter's equipment, says the official investigation into the incident.
The officer, in part, committed an unlawful act and violated reporter Richard Vivian's Charter of Rights and Freedoms in confiscating a memory card from the reporter's camera.
Those are the findings of a Public Complaint Investigation Report into the incident prepared by civilian investigator Randy Martin on behalf of the OPP's professional standards unit. GuelphToday filed a complaint about the incident in March.
The full report can be found here.
On Dec. 20, 2023, while reporting on the scene of a fatal vehicle/pedestrian collision on the Hanlon Parkway and College Avenue, Vivian was berated and detained by an officer on scene and told he would be arrested if he didn’t turn his camera over. The camera was taken, eventually returned, but its SD memory card was confiscated before being returned the next day.
"The search although incident to detention and for the sole purpose to confirm evidence was unlawful, without a warrant and done without the coroner’s direction. Therefore, the allegation of Discreditable Conduct is substantiated," states the report.
A second count of discreditable conduct into the aggressive and critical way the officer spoke to Vivian "did not raise to the level of misconduct" but "should be
addressed at the detachment level through the provisions of performance management."
A third count, of unlawfull or excessive use of authority in detaining Vivian, was dismissed.
Any punishment for the officer stemming from the report has yet to be determined.
The OPP commissioner says the incident does not warrant a discipline hearing, and that punishment could include:
• Non-disciplinary corrective counselling with the officer involved and training;
• Reprimand and documentation in the officer’s personnel file;
• The loss of a number of paid hours from the officer involved;
• Or a combination of any of the above.
The officer took Vivian's camera, which was later returned without the SD card, on order by the coroner on scene, who felt photos could be part of his investigation into the death.
In January, GuelphToday filed a formal complaint with the OPP, alleging the officer had acted unlawfully or with unnecessary exercise of authority in detaining Vivian and in confiscating his equipment.
There was also concerns about the manner in which the officer dealt with Vivian, which was caught on audio recording.
The investigation, which involved interviews with and reports from several witnesses and those directly involved, found the officer guilty of misconduct for seizing Vivian’s camera, but not for detaining him.
“It is my decision that the misconduct was not of a serious nature and this matter can be addressed without holding a hearing,” superintendent T. Dobbin wrote in the letter on behalf of commissioner Thomas Carrique in response to the investigation's findings.
“I feel this conduct can be managed without the necessity of holding a formal disciplinary healing,” he said.
GuelphToday has 30 days to request a review of the investigation if it so wishes.
“We are pleased that the investigation confirms that the officer was in the wrong and overstepped his boundaries in confiscating a reporter’s equipment while covering a news event and will be held accountable, to some degree, for that misconduct,” said GuelphToday editor Tony Saxon, who filed the complaint on behalf of GuelphToday.
“Reporters doing their jobs should be treated professionally and respectfully. Richard Vivian was not. We still contend there was no need to confiscate his camera or detain him."
Saxon said Vivian was a reporter doing his job. There was no clear barrier indicating he should not have stood where he was, he was not intentionally taking photos of the deceased and GuelphToday, like most media outlets, does not run photos of victims of fatal accidents, which was all explained to the officer at the scene.
“We still contend that the officer let his emotions get the better of him, as proven by the recording, and the interaction went downhill from there," Saxon said.
Although it questions the accuracy of some of the evidence, GuelphToday and its parent company Village Media has not yet decided if it will ask for a review of the investigator’s findings and decision.
While the officer claimed the coroner had directed any cameras on the scene be confiscated, no one could remember his exact wording, and coroner Dr. Paul Mendonca claimed he did not give any such direction. The investigation also found Mendonca’s written report contrasted with his informal comments to the Professional Standards Unit investigator regarding what was said on the scene.
The officer also seized and viewed its contents before informing Mendonca.
The investigation report says Mendonca “did not directly provide authority” for the officer to search the camera, and that he “knew that he conducted a warrantless, nonconsensual search of Mr. Vivian's camera. Mr. Vivian had a reasonable expectation of privacy and was entitled to the protection of Section 8 of the Charter of Rights and Freedoms for the images on his camera.”
It goes on to say the search “was unlawful, without a warrant and done without the coroner’s direction.”
Regarding Vivian’s detention, the PSU deemed the officer “executed his duties in good faith as he reasonably believed he had the lawful authority under the Coroners Act under the direction of Dr. Mendonca … although Mr. Vivian’s Section 8 Charter rights were breached, the purpose was lawful."
Included in the evidence was a partial recording of a conversation between the officer and Vivian, which prompted the PSU to investigate a third allegation of misconduct based on what was said.
During the conversation, the officer “berated Mr. Vivian, questioned his morals, and told him that his actions were 'disgusting,'" the report states.
It goes on to say he “should not have allowed his judgment of Mr. Vivian’s motives and actions to interfere with his obligation to maintain a positive professional image.”
The PSU deemed the officer's comments did not equate to misconduct, but said his interactions with Vivian “should be addressed at the detachment level through the provisions of performance management.”
