Ontario Provincial Police v. Favretto [Indexed as: Ontario (Provincial Police) v. Favretto]
72 O.R. (3d) 681
[2004] O.J. No. 4248
Court of Appeal for Ontario,
McMurtry C.J.O, Borins and Feldman JJ.A.
October 20, 2004
*Application for leave to appeal to the Supreme Court of Canada was dismissed with costs April 28, 2005 (McLachlin C.J., Binnie and Charron JJ.)
Police -- Appeal of disciplinary penalty -- Standard of appellate review -- Reasonableness standard -- Officer convicted of charge of discreditable conduct -- Hearing Officer imposing penalty of dismissal -- Officer appealing to Ontario Civilian Commission on Police Services -- Commission varying penalty -- Ontario Provincial Police appealing to Divisional Court -- Divisional Court allowing appeal and reinstating disciplinary penalty of dismissal -- Court of Appeal reversing decision of Divisional Court and restoring decision of Commission -- Police Services Act, R.S.O. 1990, c. P.15.
On April 21, 1996, Constable Favretto was on duty at the Ontario Provincial Police ("OPP") Still River Detachment. An incident occurred in which he aimed his firearm at another officer. He was charged with unlawfully pointing [page682] a firearm, contrary to the Criminal Code, R.S.C. 1985, c. C-46. The charge was dismissed, the trial judge finding that at the time of the incident, Favretto was in a state of non-insane automatism. Favretto was also charged under the Police Services Act and found guilty of discreditable conduct contrary to the Code of Conduct. The Hearing Officer imposed a penalty of dismissal. The Hearing Officer concluded that although Favretto appeared to be a truly good and decent person who appeared to have a truly earnest desire to serve the people of the province as a police officer, because of the seriousness of his behaviour, a consideration of rehabilitation or reform was not acceptable.
Favretto appealed to the Ontario Civilian Commission on Police Services (the "Commission"), and it upheld the finding of misconduct but overturned the penalty and ordered that Favretto be demoted to Third Class Constable for two years before returning to the rank of First Class Constable. The Commission found that the Hearing Officer failed to give proper weight to the mitigating factor of provocation and to the serious problems with Constable Favretto's work environment at the detachment at Still River. The Commission held that while the environment did not excuse Constable Favretto's behaviour, it was an "important mitigating factor" which was both "significant and compelling when the penalty of dismissal is being reviewed", and that the Hearing Officer failed to give it proper weight. Further, the Commission held that the Hearing Officer had erred by not giving consideration to rehabilitation and by his application of previous disciplinary decisions and penalties imposed on officers accused of similar misconduct.
The OPP appealed to the Divisional Court, and the court granted the appeal and restored the penalty of the Hearing Officer. The Divisional Court held that the decision of the Commission to vary the penalty imposed by the Hearing Officer did not meet the standard of reasonableness. The Divisional Court held that it was unreasonable for the Commission to hold that the "key question" was whether Constable Favretto could be rehabilitated.
Leave to appeal having been granted, Favretto appealed to the Court of Appeal.
Held, the appeal should be allowed.
On an appeal under s. 71(2) of the Police Services Act from the penalty imposed by the Commission on an appeal from the Hearing Officer, the Divisional Court's role was: (1) to review the decision of the Commission to determine if it was reasonable; and (2) to extend to the Commission's decision the judicial deference required by that standard. In determining whether the decision was reasonable, the Divisional Court did not enter into a "probing examination" to determine whether the Commission's reasons "taken as a whole are tenable as support for the decision", as directed by the Supreme Court of Canada in Ryan v. Law Society (New Brunswick). The Divisional Court did not properly analyze the decision of the Commission in coming to the conclusion that its decision did not meet the standard of "reasonableness simpliciter". The Divisional Court's analysis focused more on the Hearing Officer's reasons than on those of the Commission and, in effect, concluded that the Hearing Officer's decision was the "correct" decision. In all of the circumstances, particularly the evidence of the good character of the appellant which was accepted by the Hearing Officer, the decision of the Commission could be fairly characterized as reasonable. Accordingly, the order of the Divisional Court should be set aside and the order of the Commission reinstated.
APPEAL from an order of the Divisional Court (O'Driscoll, Then and Benotto JJ.), 2003 15638 (ON SCDC), [2003] O.J. No. 5052, 179 O.A.C. 262 allowing an appeal from a decision of the Ontario Civilian Commission on Police Services and restoring the judgment of the Hearing Officer.
Cases referred to Browne v. Ontario (Civilian Commission on Police Services) (2001), 2001 3051 (ON CA), 56 O.R. (3d) 673, 207 D.L.R. (4th) 415 (C.A.); [page683] Burnham v. Ackroyd (Chief of Police), 1987 42 (SCC), [1987] 2 S.C.R. 572, 24 O.A.C. 367, 45 D.L.R. (4th) 309, 81 N.R. 207, 32 C.R.R. 250, 37 C.C.C. (3d) 115, affg (1986), 1986 146 (ON CA), 55 O.R. (2d) 570, 15 O.A.C. 279, 29 D.L.R. (4th) 557, 24 C.R.R. 333 (C.A.) (sub nom. Burnham v. Toronto Police Force, Trumbley and Fleming (Re); Trumbley and Pugh v. Metropolitan Toronto Police); Consolidated-Bathurst Packaging Ltd. v. International Woodworkers, Local 2-69, 1990 132 (SCC), [1990] 1 S.C.R. 282, 73 O.R. (2d) 676n, 38 O.A.C. 321, 68 D.L.R. (4th) 524, 105 N.R. 161, 90 C.L.L.C. 14,007 (sub nom. I.W.A. v. Consolidated-Bathurst Pkg.); Domtar Inc. v. Québec (Commission d'appel en matière de lésions professionnelles), 1993 106 (SCC), [1993] 2 S.C.R. 756, 105 D.L.R. (4th) 385, 154 N.R. 104, 49 C.C.E.L. 1; Groot v. Peel Regional Police (April 5, 2002, O.C.C. P.S.); Harwood and Ontario Provincial Police (1996), 3 O.P.R. 1086 (O.C.C.P.S.); Nothing and Ontario Provincial Police (1996), 3 O.P.R. 1081 (O.C.C.P.S.); Ottawa-Carleton (Regional Police Services) v. Guenette, [1999] O.J. No. 3039 (Div. Ct.); Peel (Regional Municipality) Police Service v. Besco, [2002] O.J. No. 853 (Div. Ct.); Ryan v. Law Society (New Brunswick), [2003] 1 S.C.R. 247, 257 N.B.R. (2d) 207, 223 D.L.R. (4th) 577, 302 N.R. 1, 674 A.P.R. 207, 2003 SCC 20, 31 C.P.C. (5th) 1, [2003] S.C.J. No. 17; Tremblay v. Quebec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952, 90 D.L.R. (4th) 609 136 N.R. 5, 47 O.A.C. 169, 3 Admin. L.R. (2d) 173 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 86 [as am.] Police Services Act, R.S.O. 1990, c. P.15, ss. 68, 70, 71, 76 [as am.]
David Scott and Andre Ducasse, for appellant. Ted Carlton, for respondent.
The judgment of the court was delivered by
1MCMURTRY C.J.O.: -- The appellant, Constable A.L. Favretto, appeals the decision of the Divisional Court dated December 2, 2003. The Divisional Court allowed the appeal of the Ontario Provincial Police (the "respondent") from the decision of the Ontario Civilian Commission on Police Services (the "Commission"), and reinstated the disciplinary penalty of dismissal imposed upon Constable Favretto by the Hearing Officer. The Commission had varied the Hearing Officer's decision on penalty and ordered that Constable Favretto be demoted to Third Class Constable for a period of two years before returning to the rank of First Class Constable.
2Police discipline is governed in Ontario by Part V of the Police Services Act, R.S.O. 1990, c. P.15. While the Commission has a role in the processing of public complaints, the responsibilities for conducting discipline hearings rests with the "chief of police" or, in the case of the Ontario Provincial Police, the [page684] Commissioner. Section 76 of the Police Services Act allows the Commissioner to designate the Adjudicator or Hearing Officer.
Background
3On April 25, 1996, Constable Favretto was charged with unlawfully pointing a firearm, contrary to s. 86(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The charge arose out of an incident that occurred on April 21, 1996 while Constable Favretto was on duty at the O.P.P. Still River Detachment.
4The charge was dismissed, the trial judge finding that at the time of the incident, Constable Favretto was in a state of non-insane automatism. The acquittal was upheld on an appeal to the Ontario Superior Court of Justice.
5Constable Favretto was also charged with discreditable conduct contrary to the Code of Conduct under the Police Services Act. The Hearing Officer found Constable Favretto guilty of misconduct and imposed a penalty of dismissal within seven days, unless Constable Favretto resigned before that time.
6On February 13, 2002, the Commission upheld the finding of misconduct but overturned the penalty imposed by the Hearing Officer and ordered that Constable Favretto be demoted to Third Class Constable for two years before returning to the rank of First Class Constable. In reviewing and considering the penalty imposed by the Hearing Officer, the Commission found that the Hearing Officer erred:
(a) by failing to give proper weight to the mitigating effect of provocation;
(b) by failing to consider Constable Favretto's reasonable prospects for rehabilitation; and
(c) in his application of previous penalty decisions.
7The respondent appealed to the Divisional Court, which on December 2, 2003, allowed its appeal and reinstated the Hearing Officer's penalty of dismissal. That judgment of the Divisional Court was stayed on consent and leave to appeal was granted by this court.
Incident Giving Rise to Proceedings
8In his reasons, the appeal judge in the criminal proceedings summarized the events surrounding the incident as follows:
On the day in question [Constable Favretto] was very tired, having worked 15 hours on a previous shift, and was under pressure from a superior to [page685] complete certain reports. As he was engaged at that task, [his fellow officer] Foster was repeatedly asking that he take a break and go with him to a restaurant. [Constable Favretto] ignored those requests and kept at his task.
Foster took out his baton, held it as one would a sword in a fencing match, and waved it around in the vicinity of Favretto's head, while making comments such as "Al, how's it going -- having fun?". There is no suggestion that Foster intended to harm [Constable Favretto] -- he was engaging in horseplay while Favretto was concentrating on his computer.
[Constable Favretto's] evidence was that he heard the sound of something going through the air behind his head. He saw Foster with his baton out and apparently swinging it at him. The next thing he recalls he had his service revolver out and it was pointed at Foster. He does not dispute Foster's evidence that his finger was on the trigger. Favretto does not recall drawing his revolver or pointing it at [Constable Foster]. When he realized what he was doing he re-holstered his weapon. Although he cannot recall doing so, he went back to work on his report for 15 minutes before leaving with Foster to go for coffee.
9The Hearing Officer found that from Constable Favretto's perspective he was "experiencing some unpleasant situations at the hands of some of his colleagues". He further found that Constable Favretto had been "provoked by the unfriendly, antagonistic behaviour of his co-workers".
10The Commission agreed that Constable Favretto was the subject of a series of personal attacks over a prolonged period of time by his co-workers. The Commission outlined several examples of these personal attacks which are supported by the evidence given by Constable Favretto's co-workers at the disciplinary hearing. For example, this evidence revealed that he was called derogatory names such as "Still River Spy""Keener""Weird Al""Al the kiddies pal""Favrelli" and "Favretti" (variations of Constable Favretto's ethnic surname).
11Constable Rod Roberts gave evidence that he used bolt-cutters to remove Constable Favretto's lock from a locker, removed his community services materials and placed them on Constable Favretto's desk along with the lock and a note that read "heed this warning" and "leave our stuff alone". This constable also removed and destroyed community service boards which Constable Favretto had made and placed in the detachment.
12Both the appellant and a fellow officer gave evidence that firecrackers were set off in Constable Favretto's office. Constable Favretto's supervisor, Sergeant Kramer, testified that he had advised Constable Favretto that if a situation arose where he required assistance or back-up, his fellow officers may not back him up. Sergeant Kramer also testified that there was a general dislike of Constable Favretto in the detachment. [page686]
13Constable Foster, at whom the appellant had aimed his service revolver, testified that he and the appellant had a good working relationship and that the appellant confided in him regularly, but that the appellant was not treated well by other members of the detachment. At the criminal trial, Constable Foster described the treatment received by the appellant as the "riding and harassment band wagon".
14On the day prior to the incident giving rise to this matter, Constable Favretto had worked a 15-hour shift. He returned to work at 7:00 a.m. on Sunday, April 21, 1996. That afternoon, he was working on an incident report. He had received two telephone calls from his supervisor in the Parry Sound detachment regarding the report and felt a sense of "pressure" to complete the report.
15Constable Foster testified at the disciplinary hearing that he asked the appellant if he wanted to go out for coffee. He stated that he then picked up his police baton and began waving it like a sword around Constable Favretto's head, in a fencing motion. He continued asking the appellant if he wanted to go for coffee. The appellant then drew his firearm with his right hand and pointed it at his left shoulder area. Constable Foster let go of his baton and returned to his chair. The appellant then re-holstered his gun and resumed his paperwork. Constable Foster indicated that Constable Favretto remained expressionless and did not say anything during the entire sequence of events and that he appeared to be "looking through" him. At the appellant's criminal trial, Constable Foster testified that when he had waved his baton around in front of Constable Favretto's face, he said"Al, how's it going, having fun?". Constable Foster also testified at the criminal trial that Constable Favretto appeared to be in a trance-like state throughout the entire incident.
16Constable Foster and Constable Favretto left to go for coffee approximately 10 minutes later. In the police cruiser, they discussed the matter and Constable Favretto apologized to Constable Foster.
17Excerpts of transcripts of the criminal proceedings were before the Hearing Officer at the appellant's disciplinary hearing. The appellant testified at the criminal trial that this treatment caused him stress and anxiety and he ultimately sought medical attention and was prescribed medication for stomach aches and for trouble sleeping. He further testified that he had a good relationship with Constable Foster and that he was the only member of the detachment that he trusted.
Expert Evidence
18The appellant was interviewed by Dr. Basil C.L. Orchard, M.D., a practising psychiatrist, on May 12, 1999. Dr. Orchard [page687] had previously assessed Constable Favretto and had testified at his criminal trial. At the hearing, Dr. Orchard testified that Constable Favretto did not suffer from any mental disease or personality disorder. He gave evidence that he had experienced a dissociative state on April 21, 1996 as the result of stresses that he faced in the workplace. He indicated that the swinging of the baton by Constable Foster caused the dissociation.
19Furthermore, it was Dr. Orchard's opinion that Constable Favretto is fit and able to return to normal duties with the Ontario Provincial Police or any other police work. He testified that it was unlikely that a further episode of dissociation would occur.
20The appellant was also interviewed and assessed by Dr. Keith Travis, Ph.D., a practising psychologist, on June 2 and 3, 1999. Dr. Travis testified that, in his opinion, Constable Favretto's actions on April 21, 1996 could be explained by the "interruption theory". The interruption theory suggests that when a well-organized sequence of behaviour has been interrupted, it will be followed by an increased psychological arousal that can be followed by an emotional expression. In other words, Constable Favretto became "emotionally overloaded by the complexities of the situation".
21Dr. Travis further testified that while Constable Favretto was not yet ready for reassignment to the full range of uniformed police duties, with proper preparation, he could be ready within several weeks. He indicated that he found "no convincing contrary indication to a resumption of policing duties".
22Dr. Klassen, a psychiatrist, testified on behalf of the respondent. Although Dr. Klassen admitted that he had never personally met with the appellant, he testified that in his opinion, Constable Favretto was not in a dissociative state during the incident of April 21, 1996. However, although he would not give a definitive opinion, Dr. Klassen agreed that the appellant could be returned to work with the respondent.
The Legislative Scheme
23Pursuant to the Police Services Act, the allegation of discreditable conduct against a police officer is heard by a Hearing Officer. Both a finding of guilt and the issue of penalty can be appealed by the police officer to the Ontario Civilian Commission on Police Services (the "Commission").
24The relevant sections with respect to an appeal to the Commission by a police officer and an appeal from a decision of the Commission to the Divisional Court are as follows: [page688]
Appeal to Commission
70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held by the chief of police under subsection 64(7) or by the board under subsection 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.
Commission to hold hearing on notice from police officer
(2) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a police officer.
Appeal on the record
(5) A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.
Powers of Commission
(6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be.
Appeal to Divisional Court
71(1) A party to a hearing held by the Commission under subsection 65(9) or section 70 may appeal the Commission's decision to the Divisional Court within 30 days of receiving notice of the Commission's decision.
Grounds for appeal
(2) An appeal may be made on a question that is not a question of fact alone, from a penalty imposed or from any other action taken, or all of them.
The Decision of the Hearing Officer
25The Hearing Officer, retired Superintendent Fitches, released his decision on July 27, 2000. He found Constable Favretto guilty of discreditable conduct.
26The Hearing Officer did not accept that Constable Favretto's actions occurred during a state of non-insane automatism. He described the pointing of the pistol as "clearly discreditable".
27The penalty decision under the authority of s. 68 of the Police Services Act was delivered on October 26, 2000. The Hearing Officer imposed a penalty of dismissal from the Ontario Provincial Police in seven days unless Constable Favretto resigned before that time.
28At the outset of his reasons for the penalty imposed on the appellant, the Hearing Officer made the following comments:
Due to the nature of the misconduct in this case and the nature of the individual officers as clearly illustrated to me throughout the hearing, I feel it is [page689] imperative that I make comment on the subject officer and his inherent admirable qualities.
From all of the information that I have had to review, Provincial Constable Favretto appears to be a truly good person. I am convinced that he has a good heart and, in fact would like to make a difference in the lives of those around him. Even while under suspension, Constable Favretto has volunteered his time and energy to worthy causes in his community.
29In imposing the penalty of dismissal, the Hearing Officer stated that "Constable Favretto's behaviour was not only dangerous; it was potentially lethal". With respect to rehabilitation, the Hearing Officer made the following comment:
Because of the seriousness of Provincial Constable Favretto's behaviour, the distance between what he did and what may have been acceptable is simply too far for me to consider rehabilitation or reform. The potential results of unsuccessful rehabilitation or reform are too frightening to contemplate.
30The Hearing Officer concluded his reasons as follows:
I must confess that I never imagined a situation in which I would have to terminate the services of a good and decent person who appears to have a truly earnest desire to serve the people of this province as a police officer. Unfortunately, that is precisely the situation in which I find myself.
Provincial Constable Favretto's behaviour has demonstrated very clearly to me that despite all his extremely good and admirable qualities, the Ontario Provincial Police cannot safely retain his services as a Provincial Constable.
The Decision of the Ontario Civilian Commission on Police Services
31As stated earlier, the Commission dismissed the appeal with respect to the finding of discreditable conduct while allowing the appeal as to the penalty.
32In the discharge of its appeal function, the Commission viewed its statutory mandate in what appears to be excessively narrow terms given its broad review powers under the Police Services Act, stating that:
Our role or function is not merely to substitute our opinion for the decision of the Hearing Officer. In order to determine whether or not the above criteria have been satisfied in essence, we must pose the question "Are the conclusions of the Hearing Officer void of evidentiary foundation?".
33However, the Commission also noted in its Reasons that its role in reviewing penalties imposed by a Hearing Officer was to ensure that the relevant factors had been taken into account and properly weighed. The Commission stated that while it was "hesitant to substitute its own thoughts on the fairness of a penalty for those of the Hearing Officer who heard the evidence, assessed the witnesses, and is close to the needs of the force and [page690] of the community", it pointed out that "the Commission may vary a penalty if the penalty is unreasonable, would amount to injustice or unfairness or if all relevant factors have not been fairly or impartially considered".
34In my view, the Commission in the result did not feel itself bound by its earlier statement that it would not interfere with the conclusions of the Hearing Officer unless they were "void of evidentiary foundation".
35In its decision, the Commission focused on the issues of provocation, rehabilitation and consistency of penalties.
Provocation
36The Commission found that the Hearing Officer failed to give proper weight to the mitigating factor of provocation and to the serious problems with Constable Favretto's work environment at the detachment at Still River. Specifically, in reviewing the evidence presented before the Hearing Officer at the disciplinary hearing and at the criminal trial, the Commission found that the following "significant and compelling" factors, among others, played a role in the April 21, 1996 incident and should have been taken into account in assessing whether the penalty of dismissal was appropriate in the circumstances. It described the provocation as follows:
-- the drawing of a loaded pistol by Constable Favretto and pointing it at Constable Foster was immediately preceded by Constable Foster waving his baton over Constable Favretto's head. Given the past actions of his co-workers, Constable Favretto did not perceive this as an innocent act;
-- there had been several instances of inappropriate conduct by fellow officers, which was confirmed by Constable Foster and others, including name-calling and fellow officers "riding him";
-- the work environment for Constable Favretto became highly charged and emotional; and
-- Constable Favretto was "centred out" and made to feel unwelcome.
37In reviewing the decision of the Hearing Officer, the Commission considered the findings made by the Hearing Officer with respect to Constable Favretto's work environment and found that his comments illustrated a "lack of proper emphasis [. . . ] on the work environment at the Still River Detachment [page691] which we believe played a significant role in laying the foundation for the April 21, 1996 incident". The Commission held that while the environment did not excuse Constable Favretto's behaviour, it was an "important mitigating factor" which was both "significant and compelling when the penalty of dismissal is being reviewed" and that the Hearing Officer failed to give it proper weight.
Rehabilitation
38Relying on the decision of this court in Burnham v. Ackroyd (Chief of Police) (1986), 1986 146 (ON CA), 55 O.R. (2d) 570, 29 D.L.R. (4th) 557 (C.A.), the Commission stated that the key issue to be addressed is whether or not the employee can be "rehabilitated and reformed to the extent that he can be an asset to the O.P.P. and the general community as a police officer" and wrote:
The Hearing Officer gave no consideration or weight to the issue of Constable Favretto's rehabilitation since he believed that his misconduct was far too serious. We believe that rehabilitation is a very important and significant factor when considering an appropriate penalty and the Hearing Officer erred in this regard.
The community has a significant investment in every police officer and before an officer is dismissed, every attempt should be made to consider whether or not rehabilitation is possible. This is of significant importance when the subject officer has had a clear record and good performance evaluations. Unless the offence is so egregious and unmitigated, the opportunity to reform should be a significant consideration. This was not the case with Constable Favretto. With the exception of this incident, he had demonstrated strong skills as a police officer which earned him the respect and gratitude of the community which he has served.
The Hearing Officer demonstrated overwhelming concern and caution as to whether or not the behaviour of Constable Favretto would repeat itself should he remain a police officer. This concern and caution has not gone unnoticed by the Commission and it is of paramount importance to us as well. However, a review of his employment record and the many exhibits filed on his behalf concerning his character and career achievements, both on and off duty, reflect a person of sound moral and stable integrity, other than on the occasion of this incident.
Looking at his career in its totality, this event would appear to be an isolated incident in an otherwise good career.
The testimony of Dr. Orchard and Dr. Travis has also been carefully reviewed. In his medical testimony at the disciplinary hearing, Dr. Orchard reconfirmed his opinion that Constable Favretto was fit and able to return to normal duties with the OPP or any other police work.
In his medical testimony at the disciplinary hearing, Dr. Travis concurred but recommended the assistance of a detailed return to work plan. Based upon the testimony of Dr. Orchard and Dr. Travis, we are satisfied that Constable Favretto can be rehabilitated with a penalty tailored to provide the Officer the opportunity to do so[.][page692]
The Commission also noted Constable Favretto's presence at the appeal hearing and his demeanor indicated he was sincerely remorseful for his actions. Given his past achievements with the OPP and the community and the strong mitigating factors in this case, it is appropriate that he be given an opportunity to redeem himself and demonstrate that his misconduct was a momentary departure from an otherwise good career. The varied penalty will still have its consequences both financial and otherwise, but discreditable conduct carries a cost that must be incurred. We are also emphasizing that but for the extraordinary mitigating factors in this case, the Commission may not have been so readily disposed to vary this penalty.
Consistency of penalty
39The Commission found that the Hearing Officer erred in his application of previous disciplinary decisions and penalties imposed on officers accused of similar misconduct.
40In its reasons for decision, the Commission referred to the cases of Harwood and Ontario Provincial Police (1996), 3 O.P.R. 1086 (O.C.C.P.S.) and Nothing and Ontario Provincial Police (1996), 3 O.P.R. 1081 (O.C.C.P.S.). In these two cases, which arose out of the same incident, the two officers were at the kitchen table consuming alcohol and playing cards. Both officers were intoxicated. An argument ensued and Constable Harwood picked up his gun and pointed it at Constable Nothing. The gun was not loaded. Thereafter, Constable Nothing pulled out his gun, put a bullet in it, pointed it at Constable Harwood and pulled the trigger. He then placed the gun to his own head and pulled the trigger twice. Both officers were charged and convicted of discreditable conduct. However, Constable Nothing was dismissed, while Constable Harwood was demoted to Third Class Constable.
41The Commission found that taking into account the mitigating factor of provocation, the appellant's case was more similar to the case of Constable Harwood and, as such, the appropriate penalty was demotion to Third Class Constable.
The Decision of the Divisional Court
42The Divisional Court held that the appropriate standard of review governing the appeal of the decision of the Commission to the Divisional Court was one of reasonableness.
43The Divisional Court acknowledged that the Commission had a wide scope to review the penalty imposed by the Hearing Officer pursuant to s. 70(1) of the Police Services Act, but held that the decision of the Commission to vary the penalty imposed by the Hearing Officer did not meet the standard of reasonableness. The Divisional Court therefore allowed the respondent's appeal and reinstated the Hearing Officer's penalty of dismissal. [page693]
44On the issue of the appellant's reasonable prospects for rehabilitation, the Divisional Court agreed with the conclusion of the Hearing Officer that some actions by a police officer can be so serious that they justify that little weight be given to an officer's prospects for rehabilitation in determining an appropriate penalty for misconduct. In so doing, the Divisional Court relied upon the Nothing decision, but did not refer to the Harwood decision. The Divisional Court held that it was unreasonable for the Commission to hold that the "key question" was whether Constable Favretto can be rehabilitated.
Issues and Argument
45The appellant raises the following questions of law in this appeal:
(a) Whether the Divisional Court erred in applying what amounted to a correctness standard of review to the decision of the Commission, even though the Divisional Court recognized that the appropriate standard of review was reasonableness;
(b) Whether the Divisional Court erred in determining that the decision of the Commission with respect to the penalty imposed upon Constable Favretto was unreasonable.
46The appellant makes the following submissions in support of its argument:
(a) The Divisional Court made no reference to the Commission's discussion and analysis of the issues of provocation and the appellant's work environment but only discussed the Hearing Officer's analysis of these issues, holding that he had properly considered them.
(b) The Divisional Court concurred with the Hearing Officer's application of previous discipline cases but did not consider how this issue was addressed by the Commission, despite the fact that the Commission discussed this issue in detail in its written reasons.
(c) The provision, which gives authority to the Divisional Court to hear an appeal from a decision of the Commission, does not grant jurisdiction to the Divisional Court to hold a de novo review of the decision of the Hearing Officer, and substitute its views for those of the Commission, which, unlike the Divisional Court, is a specialized tribunal. [page694]
(d) In reviews by the Divisional Court under s. 71 of the Police Services Act in two previous cases, namely Ottawa-Carleton (Regional Police Services) v. Guenette, [1999] O.J. No. 3039 (Div. Ct.) and Peel (Regional Municipality) Police Service v. Besco, [2002] O.J. No. 853 (Div. Ct.), the Divisional Court limited its inquiry to determining whether the Commission had arrived at a reasonable conclusion rather than embarking on an analysis to determine whether the decision of the Hearing Officer was correct.
(e) The issues to be decided in reviewing a penalty imposed for a disciplinary matter fall squarely within the specialized expertise and authority of the Commission. The Commission is familiar with municipal police matters, law enforcement issues and prescribed standards of police services. It has particular expertise in dealing with disciplinary matters unique to police services. In this respect, the appellant referred to the decision of this Court in Browne v. Ontario (Civilian Commission on Police Services) (2001), 56 O.R. (3d) 673, 2001 3051 (ON CA), 207 D.L.R. (4th) 415 (C.A.), at p. 697 O.R.:
. . . the specialized expertise of the tribunal cannot be doubted, as the range of its assigned statutory duties demonstrates. Under the [Police Services] Act, the Commission is empowered to hear appeals; suspend or remove the chief of police or members of the board; disband the police force; appoint an administrator to perform specified functions; conduct investigations; conduct inquiries under the direction of the Lieutenant Governor in Council; conduct inquiries on its own motion; conduct reviews under s. 72; and make recommendations regarding the policies or services of a police force.
(f) When the applicable standard of review is reasonableness, the reviewing Court's role is not to posit alternate interpretations of the evidence; rather, it is to determine whether the tribunal's decision is unreasonable.
47The respondent makes the following submissions in support of its argument:
(a) While the Commission has the power to vary penalties imposed for police misconduct under s. 70 of the Police Services Act, the Commission does not have the power to impose the penalty it believes to be correct but only to vary penalties imposed by a Hearing Officer that are unreasonable.
(b) In the case of Groot v. Peel Regional Police (April 5, 2002, O.C.C.P.S.), the Commission did not disturb a finding of dismissal despite the prospects for rehabilitation of an officer [page695] who had acquired two university degrees while on suspension. The Commission stated:
That being said, the Hearing Officer appears to have concluded that this alone, in the absence of other significant mitigating factors, was insufficient in her mind to warrant a penalty other than dismissal. While we might have concluded otherwise, if the matter was ours to determine in the first instance, we are not satisfied that this assessment is so patently unreasonable or incorrect in principle that it should not be permitted to stand.
(c) The Commission's own standard of review accepts, at a minimum, the standard of reasonableness simpliciter. Penalties imposed by a Hearing Officer that are reasonable are not to be disturbed. Penalties imposed by a Hearing Officer that are unreasonable or unfit can be varied. In both cases, the focus is not on what penalty the Commission believes to be correct, but whether the penalty at first instance is a reasonable one.
Analysis
48In the context of the respondent's reliance on Groot, it should be emphasized that tribunals are not bound by their previous decisions. The principle of stare decisis does not apply to administrative tribunals. In Domtar Inc. v. Québec (Commission d'appel en matière de lésions professionnelles), 1993 106 (SCC), [1993] 2 S.C.R. 756, 105 D.L.R. (4th) 385, at p. 799 S.C.R., L'Heureux-Dubé J., speaking for the court, in referring to Gonthier J.'s reasoning in Consolidated-Bathurst Packaging Ltd. v. International Woodworkers, Local 2-69, 1990 132 (SCC), [1990] 1 S.C.R. 282, 68 D.L.R. (4th) 524, and in Tremblay v. Québec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952, 90 D.L.R. (4th) 609, states:
This Court has also recognized that the search for consistency is not an absolute one. Thus, . . . it was held that the members of an administrative tribunal were not bound by any stare decisis rule . . . .
49With respect to the determination of whether a decision of a tribunal was unreasonable, the Supreme Court of Canada held in Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, at paras. 50-56:
At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the fundamentally different process of reviewing a decision for correctness. When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct. In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary [page696] responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision maker is merely afforded a "margin of error" around what the court believes is the correct result.
How will a reviewing court know whether a decision is reasonable given that it may not first inquire into its correctness?. The answer is that a reviewing court must look to the reasons given by the tribunal.
A decision will be unreasonable only if there is no line of analysis within the given reasons that would reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. [. . .] This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling.
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons taken as a whole are tenable as support for the decision. At all times, a court applying a test of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decisions which do not affect the decisions as a whole.
(Emphasis added)
50The Divisional Court's jurisdiction in this case was on appeal from the Commission's decision as to penalty (s. 71(2) of the Act). In my view, given that the Divisional Court agreed that the appropriate standard of review on such an appeal was one of reasonableness, the proper approach for the Divisional Court would have been for it to review the decision of the Commission to determine if it was reasonable. This would require the court to determine if the Commission properly considered all relevant factors in determining the appropriate penalty, including the opinion and reasons of the Hearing Officer, who also has expertise in these matters.
51In this case, the Commission embarked on a careful analysis of all of the relevant factors in determining an appropriate disciplinary penalty. With respect, this analysis was largely ignored by the Divisional Court. The Commission is a specialized administrative tribunal that has been given broad powers on an appeal from a decision of a Hearing Officer to "confirm, vary or revoke the decision being appealed" or to "substitute its own decision for that of the chief of police", which would include a decision by a Hearing Officer to impose a penalty of dismissal (ss. 70(2), (5), (6)). [page697]
52On an appeal under s. 71(2) of the Act from the penalty imposed by the Commission on an appeal from the Hearing Officer, the Divisional Court's role was (i) to review the decision of the Commission to determine if it was reasonable and (ii) to extend to the Commission's decision the judicial deference required by that standard.
53In its review of the decision of the Commission, the Divisional Court made only one specific reference to the "reasonableness" of the Commission's decision, as follows:
The Commission focused its decision on the issue of rehabilitation. In the Commission's view, the "key question" which needed to be considered was whether or not Constable Favretto "can" be rehabilitated. In light of the seriousness of the actions and potentially lethal force this was an unreasonable approach.
54The Commission placed a significant emphasis on the issue of rehabilitation because of the appellant's demonstrated overall good character, which was also emphasized by the Hearing Officer, who stated that the Appellant "appears to be truly a good person".
55I am of the opinion that the Divisional Court's analysis focused more on the Hearing Officer's reasons than on those of the Commission and in effect concluded that the Hearing Officer's decision was the "correct" decision. It did not enter into a "probing examination" to determine whether the Commission's reasons "taken as a whole are tenable as support for the decision" as directed by the Supreme Court of Canada in Ryan v. Law Society (New Brunswick).
Conclusion
56In conclusion, I am of the respectful opinion that the Divisional Court did not properly analyze the decision of the Commission in coming to the conclusion that its decision did not meet the standard of "reasonableness simpliciter". I am further of the view that in all of the circumstances, particularly the evidence of the good character of the appellant which was accepted by the Hearing Officer, that the decision of the Commission can be fairly characterized as reasonable.
57The order of the Divisional Court dated December 2, 2003 is therefore set aside and the order of the Commission dated February 13, 2002 is reinstated.
58Counsel for both the appellant and the respondent submitted that they would not be asking for costs if successful, and accordingly there will be no order as to costs.
Order accordingly. [page698]
