ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
NICOLA CIRILLO
Appellant
-and-
YORK REGION POLICE FORCE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Ruth K. Corbett, Member
Hearing Date: May 2l, l99l
Hearing Location: Toronto, Ontario
Ontario Civilian Police Commission
250 Dundas Street West, Suite 605
Toronto, Ontario M7A 2T3
Tel: 416-314-3004
Fax: 416-314-0198
Website: www.ocpc.ca
Presiding Members:
W.D. Drinkwalter, Q.C., Chairman
Ruth K. Corbett, Member
Appearances:
B. Shilton, Solicitor for the Appellant
Constable Cirillo Ed Oakes with Phyllis Carlyle for the Respondent
Also present were two representatives of the Police
Association
Hearing Date: May 2l, l99l
This is an appeal from the penalty of dismissalimposed upon Constable Cirillo when he was convicted of onecount of deceit and one count of discreditable conduct.
On October l4th, l989 Constable Cirillo stopped amotor vehicle for a seatbelt infraction. One Frank Basile was a passenger in the vehicle and was known to Cirillo froman earlier occurrence as a result of which Basile had pleadedguilty to charges of possession of a narcotic for the purposeof trafficking.
Shortly thereafter the same vehicle was stopped byConstables Lutz and MacBride. Cirillo arrived and looked in the rear seat of the car. He came out of the vehicle with a piece of paper containing a white powder which was believedto be cocaine. Basile was arrested and charged with possession of the cocaine.
Both Lutz and Cirillo recorded in their notebooks that Lutz had found the cocaine rather than Cirillo.
Cirillo was charged with deceit with respect to theentry he made in his memo book; deceit with respect to avoice entry in the Force Records Branch; and discreditableconduct based upon the deceit.
Constable Lutz was charged with deceit relating tothe voice entry arrest report; deceit with respect to havingadvised Detective Sergeant Dennis Mulholland and DetectiveGreg Olson who were investigating the circumstances in question, that the voice entry had been made by Cirillo whenin fact it had been made by Lutz; and discreditable conductbased upon the former allegations.
Cirillo was charged and penalized first. Lutz was charged and penalized later. Cirillo was ordered to be dismissed. Lutz was ordered to remain at the rank of Third Class Constable for an additional year "and to continue withyour self-help program".
The Appeal:
On behalf of Constable Cirillo it is argued thatwhen the matter was appealed to the Police Services Board,the Board ought to have considered the penalty imposed onLutz and ought to have reduced Constable Cirillo's penaltybecause of the obvious disparity; that the Trials Officer andthe Board failed to give appropriate weight to the fact thatCirillo had pleaded guilty; and finally, that the order ofdismissal is harsh and unjust.
When the Cirillo matter came to trial, the trialbegan and then was adjourned to another day. When the trial was scheduled to recommence Constable Cirillo pleaded guiltyto two counts and the other was withdrawn. Cirillo throughout had taken the position that he did not make thevoice entry in question but admitted his guilt with respectto the other two counts. When the investigation was finallyconcluded it was clear that the false voice entry had beenmade by Lutz and not by Cirillo.
When Constable Lutz came to trial, the chargerelating to his allegation that the voice entry had been madeby Cirillo was withdrawn and he pleaded guilty to the othertwo counts.
One further fact that ought to be considered is thefact that Basile never came to trial on the charge ofpossession of a narcotic. Basile had maintained throughoutthat the drug was not his and further, he alleged that thedrug had been "planted" by Cirillo. Because of the deceit practiced by these two officers and the obvious loss ofcredibility, the charge against Basile was withdrawn. Thus,the allegation that Cirillo had planted the drug has neverbeen tested.
The question of whether an officer can be convictedof two disciplinary offences relating to the same set offacts was not argued. In this case Cirillo stands convicted of deceit for having made a false entry and also convicted ofdiscreditable conduct based upon the same facts. This is a matter which gives the Commission some concern but in thecase before us the issue was not argued and it would have noeffect on the penalty in any case. So long as all therelevant facts are put before the tribunal, the penalty willrelate to those facts regardless of whether they are encompassed in one or two or three counts.
While an order for immediate dismissal is the most serious penalty that can be imposed upon a police officer, itis nevertheless amply justified by the facts in this casestanding alone. In addition to the facts, however, indetermining the appropriate penalty one must consider theofficers' record of performance, remorse or reformation, andthe question of parity. In this case we have two officers conspiring to falsify records, one of whom is ordered dismissed and the other frozen at the rank of Third Class Constable for a period of one year with a companion orderthat he continue treatment.
Constable Cirillo's record of performance includesa series of commendations as well as a series of criticisms.
What emerges from the record is that Constable Cirillo wasvigorous and enthusiastic to a fault. The fault is that his enthusiasm is not tempered by an understanding that he mustconduct himself within the rules. Excess enthusiasm may beacceptable, indeed it may even be encouraged, in the world ofsports where players and competitors are often encouraged tocheat. Such excess enthusiasm has no place whatever in thearea of law enforcement.
Mr. Cirillo joined the Force in June of l987 and byOctober l4th, l989 he was a Second Class Constable. In spiteof the criticisms of his performance, he had not learned thathis enthusiasm must be tempered by honesty and integrity.His record of performance coupled with the commission of thisoffence establish his unfitness to hold the office of constable.
The next matter to be considered, then, is thequestion of reformation. In the Fall of l989 Cirillo's conduct is amply illustrated by the commission of the acthere in question and the fact that Cirillo pleaded guilty toa charge of discreditable conduct relating to an event inSeptember l989. Cirillo and Lutz had stopped a motor vehiclefor a seatbelt infraction. Cirillo took a young lady fromthe car to the cruiser where he questioned her extensivelyabout her sex life.
The accused's record of performance does not mitigate the penalty that would otherwise be appropriate.There was nothing in the record to indicate any remorse or reformation.
The one matter remaining to be considered, then, isthe obvious disparity between the penalty imposed on Lutz andthe penalty imposed on Cirillo. It is argued on behalf ofCirillo that the matter was instigated by Lutz and thatCirillo merely went along with the proposal to assist afellow officer. It was argued by Lutz at his trial that hewas junior to Cirillo and accordingly following the lead of asenior officer. Cirillo's service had been approximately l8months longer than that of Lutz.
It is argued on behalf of Cirillo that he hadnothing to gain and no obvious motive for this conduct. The other side of that coin is, of course, that if Cirillo wouldfalsify records for no obvious gain or benefit how far wouldhe go if he could see some gain or benefit flowing to himselffrom misconduct?
The factor that distinguishes Lutz and Cirillo isthe matter of remorse and reformation.
When penalty was imposed upon Lutz by the HearingOfficer, Superintendent Craine, he accepted, "reluctantly", ajoint submission by the Prosecuting Officer, InspectorMennie, and Constable Hill who was acting on behalf of Lutz.
The transcript of that hearing is very short and there areno details given with respect to the type of help that Lutzhad sought and was receiving. Both the Prosecuting Officerand Constable Lutz' agent indicate that Lutz was receiving"professional counselling" but beyond that they express agreat reluctance to "get into any detail" on the issue. The Hearing Officer makes it plain that he trusts and relies uponthe Prosecuting Officer and Mr. Lutz' agent. In any event,what is clear is that Constable Lutz had admitted to himself that he had a problem and had sought help. There is nothingin the record with respect to Cirillo to indicate that he hasadmitted to himself that he is not qualified to be a policeofficer and is prepared to do something about it. Quite thecontrary is true with respect to Constable Lutz.
There is nothing in the record with respect toremorse or reformation which would mitigate the otherwiseappropriate penalty.
For the above reasons the appeal is dismissed.
DATED THIS 22ND DAY OF MAY, 1991.
per ______________________________________W.D. Drinkwalter, Q.C., Chairman