Allen v. Hamilton-Wentworth Regional Police Service, 1995 CanLII 15420

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

POLICE CONSTABLE TERRY ALLEN

Appellant

-and-

HAMILTON-WENTWORTH REGIONAL POLICE SERVICE

-and-

ROBERT MIDDAUGH, CHIEF OF POLICE

Respondent

DECISION

Panel: Murray W. Chitra, Chair Alok Mukherjee, Member

Hearing Date: Monday, March 13, 1995

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:

Murray W. Chitra, Chair Alok Mukherjee, Member

Appearances:

Brad Boyce, Executive Officer, Hamilton-Wentworth Regional Police Association, Agent for the Appellant

Laurie Vechter, Counsel for the Chief, Hamilton-Wentworth Regional Police Service

Hearing Date: Monday, March 13, 1995

1. This is an appeal arising out of the decision of the Hamilton-Wentworth Police Services Board to confirm the penalty imposed upon Constable Terry Allen by Service Adjudicator Superintendent C. Jackson on April 21, 1993, that he forfeit 3 days' pay following his conviction of Neglect of Duty in that he failed to report a matter that was his duty to report, contrary to Section 1(c)(vi) of the Code of Offences contained in Regulation 927, R.R.O. 1990; and that he forfeit 15 days' off following his conviction of deceit in that he did knowingly make or sign a false statement in an official document or book, contrary to Section 1(d)(i) of the Code of Offences contained in Regulation 927, R.R.O. 1990.

The Facts:

2. The facts in this appeal are fairly straightforward and not contested.

3. On February 5, 1991, Provincial Constable Terry Allen was charged with two counts each of deceit and neglect of duty for actions arising from incidents on December 7 and December 13, 1990. The particulars are as follows.

Charge #1 On December 13, 1990 P.C. Terry Allen submitted an incident report #90-088460-9 stating that our Police Service had no previous contact with Alfred Cooper and Andre Carmichael. This is untrue as P.C. Allen had contact with these same two individuals on December 7, 1990 on a similar complaint.

Charge #2 On December 13, 1990 P.C. Terry Allen told Sgt. Wayne Clark that his two prisoners (Alfred Cooper and Andre Carmichael) were unknown to us as organized shoplifters. This is untrue as P.C. Allen knew his prisoners were involved in a similar crime on December 7, 1990. P.C. Allen did not mention to Sgt. Clark that Sgt. Watkins had recommended that P.C. Allen oppose bail. Sgt. Clark then released the two prisoners based on misleading statements by Constable Allen.

Charge #3 On December 7, 1990 P.C. Terry Allen was sent to Woolco Dept. Store at Eastgate Square. Constable Allen was told by Store Security of suspected shoplifting by two males. Constable Allen investigated but he did not submit an Incident Report as required by Position and Procedure Order R. 1(a) - Item A.1(a).

Charge #4 On Dec. 13/90 P.C. Terry Allen arrested two men (Cooper and Carmichael) for theft under $1,000.00 (shoplifting). The two men, Cooper and Carmichael, were taken to Central, processed and later released on a P.T.A. P.C. Terry Allen neglected to submit a Crown Sheet and other Court documents as required by Position and Procedure Order S. 9 Item 3(d).

4. Provincial Constable Allen was ordered to appear for a hearing before Superintendent C. Jackson. The hearing, originally scheduled for June 6, 1991, was eventually conducted on Tuesday, April 21 and Monday, April 27, 1992.

5. At the hearing, charges #2 and #4 were withdrawn, and P.C. Allen pleaded guilty to charges #1 and #3. A joint submission was made by prosecution and defence as to penalty, recommending 2 days' loss of pay on charge #3 and 3 days' loss of pay on charge #1.

6. In his reasons for sentencing the Hearing Officer indicated that he was unable to accept P.C. Allen's explanation that he did not clearly comprehend his obligation to report the incident of December 7th. Further, with respect to the events of December l3th, Superintendent Jackson concluded:

"The essence of the charge that P.C. Allen has pled to is "that he did knowingly make or sign a false stastement in an official document or book". I find that this is an error that ought not to be made by an officer of P.C. Allen's experience and leaves me with the conclusion that there was a deliberate attempt to conceal the failure to report a week prior. The information would have altered the course of how justice was administered on the criminal charge that was in fact laid. Although they have been withdrawn, charges #2 and #4 reflect that theory. The charges were withdrawn, however, the statement of particulars of those charges were read into the record by me when Constable Allen was originally arraigned."

7. He also noted a misconduct on the officer's record, three years prior for the offence of failing to report.

8. The Hearing Officer found himself unable to accept the penalty that was jointly recommended citing principles of deterrence, discipline and the need to see justice done. He imposed a penalty of forfeiture of 3 days' pay on charge #3 (Neglect of Duty), and a penalty of forfeiture of 15 days' pay on charge #1 (Deceit).

9. The penalty imposed by the Hearing Officer was appealed to the Hamilton-Wentworth Police Services Board on April 28, 1992. The Board conducted hearings on November 18 and December 16, 1992. After consideration of the facts and the legal issues involved, the Board dismissed the appeal and confirmed the penalty imposed by the Hearing Officer.

10. On January 29, 1993, the agent for Constable Allen notified the Commission of his intention to appeal the Board's decision.

The Arguments:

11. In his submission, the Appellant states that the Police Services Board failed to give due consideration to the fact that the Hearing Officer made an error in principle; ignored or gave little weight to the joint submission as to penalty; and placed judgement on matters that had been withdrawn. Specifically, it is submitted that:

12. the Police Services Board erred in finding that the penalty imposed by the Hearing Officer did not demonstrate an error in principle in failing to give sufficient weight to the fact that the appellant pled guilty to each offence and provided an explanation in each case outlining mitigating factors.

13. the Police Services Board erred in finding that the penalty imposed was just and reasonable having regard to all the circumstances in each case;

14. the Police Services Board erred in failing to consider the fact that the Hearing Officer ignored the joint submission of the prosecution and defence as to appropriate penalty.

15. the Police Services Board erred in finding that the Hearing Officer gave proper weight to previous penalties imposed on members of the Service;

16. the Police Services Board erred in failing to find that the Hearing Officer misapprehended the facts when he came to a conclusion that the appellant deliberately attempted to conceal facts as there was no evidence or basis for that finding.

17. the Police Services Board erred in failing to find that the Hearing Officer erred in principle when he considered and applied extraneous information relating to two additional charge sheets which were withdrawn by the prosecution, and

18. the Police Services Board erred in failing to find that the Hearing Officer did not give sufficient weight to the previous record of the appellant which included at least five commendations and above average performance reviews.

19. The Appellant requests that the penalty imposed by the

Hearing Officer, and confirmed by the Police Services Board, be substituted by the penalty recommended in the joint submission.

13. The Respondent Police Service opposes the appeal on the following grounds:

14. A plea of guilty only serves to mitigate the severity of a penalty to be imposed where, in the discretion of the Hearing Officer or appellate tribunal, the plea was timely, significantly reduced the expense, inconvenience and uncertainty of a trial procedure, and was made other than in response to a clear or overwhelming case for the prosecution.

15. A plea of guilty supported by an explanation only serves to mitigate the severity of a penalty to be imposed where, in the discretion of the Hearing Officer or appellate tribunal, the plea and explanation indicate the contriteness of the accused and some diminished capacity or culpability for the offences for which the plea is entered.

16. A plea of guilty, with or without an explanation, does not automatically operate to mitigate a sentence to be otherwise imposed, and may be offset by other principles of sentencing which support the imposition of an exemplary penalty.

17. The Police Services Board sat as an appellate tribunal, albeit with original jurisdiction, under the Police Services Act. In so sitting, the Police Services Board was exercising an appellate function, and therefore, was obliged to assess the fitness of the sentence, rather than determining whether it would have imposed the same sentence.

18. For purposes of appellate review, a sentence is fit if there is equality between the penalty inflicted and the gravity of the offence.

19. An appellate tribunal should only interfere with a sentence imposed if a principle of sentencing has been misapplied with the result that the sentence imposed is outside the range of sentencing for that type of offence.

20. The sentencing principles of deterrence, social disapproval, retribution, reformation and rehabilitation are reflected in the reasons of the Hearing Officer, wherein reliance on deterrence, discipline, justice seem to be done and the personal circumstances of the accused was indicated.

21. Similar offences have attracted penalties ranging from reprimands to compulsory resignation or dismissal, which have been confirmed by the Commission.

22. A joint submission in respect of a penalty does not bind a Hearing Officer, who has discretion in determining the appropriate penalty in any case where a conviction has been registered, or an appellate tribunal in reviewing the fitness of a sentence imposed.

23. The accused adduced no evidence before the Police Services Board to establish that the penalty imposed by the Hearing Officer was inconsistent with other penalties imposed on members of the Hamilton-Wentworth Regional Police.

24. The plea of guilty in respect of charge #1 permitted the Hearing Officer and the Police Services Board the reasonable inference that the accused deliberately attempted to conceal the fact of an earlier prior contact with the two suspects, and that the accused's prior conviction for a similar offence and his eight years of police experience were a sufficient evidentiary basis for this determination, which was within the discretion of both the Hearing Officer and the Police Services Board to make.

25. The Hearing Officer placed no meaningful reliance on the charges which were withdrawn, and therefore no error of principle occurred either in the decision of the Hearing Officer, or in the decision of the Police Services Board not to interfere with the sentence imposed.

26. The Hearing Officer and the Police Services Board have the discretion to give only such weight to the service record of the accused as seems appropriate in light of the severity of the offences and the prior disciplinary record of the accused.

27. In his oral submission, Mr. Boyce, for the Appellant, while reiterating the position put forth

28. in the Appellant's Factum, cited Ruby, Sentencing, p. 74, to emphasize that the Hearing

29. Officer, though not bound by the joint submission, nonetheless had a duty to give weight to

30. it. Further, he drew attention to McGuire (l977), l O.P.R. 346 (Ontario Police Commission),

31. McDermott (l985), 2 O.P.R. 656 (Ontario Police Commission), Leeder (l970), l O.P.R. 37

32. (Ontario Police Commission), Lynn (l980), 2 O.P.R. 475 (Ontario Police Commission) and

33. McDonald (l980), 2 O.P.R. 477 (Ontario Police Commission)

34. to suggest that the penalty for deceit imposed on Constable Allen was not consistent with

35. penalties in other cases where the offence was more serious.

36. Ms. Vechter, for the Respondent Chief of Police, in her oral submission, cited Godfrey v. Ontario Police Commission (l99l), S.O.R. (3d) l63 (Divisional Court) and Galloway (l986), 2 O.P.R. 73l (Ontario Police Commission) to suggest that the Hearing Officer's decision was not subject to review since there had been no error in principle.

37. She pointed out that some of the cases cited by the agent for the Appellant were quite old; since they were rendered, societal values may have changed resulting in a different set of expectations for the way police are policed. To the extent that the sentence was within the accepted range, and took into account all the principles of sentencing, there was no ground to alter it. Finally, she proposed that the expertise of the Hearing Officer, an experienced senior officer of the Service, and of bodies like the Police Services Board, needed to be recognized in the area of the Service policing itself.

38. While she acknowledged that the Hearing Officer does make reference to the withdrawn charges, she questioned that this had any bearing on his decision. Rather, she argued that he had drawn "reasonable inferences" based on his expertise as a senior police officer.

The Decision:

26. As we have noted, this appeal was brought before the Commission on July 29, 1993. It is regrettable that a hearing has not been possible until now. We believe that speedy response and resolution of such matters are essential to ensure a fair appeal process.

27. Turning to the matter at hand, both parties have advanced arguments in support of their position that require serious attention.

28. The Commission must be slow to set aside the conclusions a Hearing Officer has reached after a lengthy process of hearing and analyzing evidence. Such conclusions should be altered only when there is a manifest error in principle.

29. From our perspective the arguments for confirming the original penalty are that:

a) The Hearing Officer is not obliged to accept the joint submission for sentencing.

b) Guilty plea by the accused was given due consideration.

c) The reference to the withdrawn charges made no material

difference to the penalty imposed.

d) The Hearing Officer applied his expert knowledge in theorizing about motivation behind and magnitude of Constable Allen's actions.

30. The arguments for altering the penalty are that:

a) Reasons should have been given for not accepting the joint submission as to an appropriate sentence.

b) The penalty is not in line with those imposed in other similar cases.

c) No explicit weight was given to the guilty plea.

d) The Hearing Officer's speculation as to what may have happened with respect to charge #3 had no basis in fact.

e) The references to the withdrawn charges introduced extraneous consideration into the decision.

31. We accept the notion that a Hearing Officer is not bound by a joint submission as to sentence. However, if a Hearing Officer chooses to depart from what is proposed, it is essential that he or she provide clear and cogent reasons.

32. Further, we agree that a Hearing Officer is free to interpret evidence and make factual findings using the benefit of his or her experience. However, it is evident that this must not involve the taking into account of extraneous considerations.

33. In this case, the reasons provided for the departure from the jointly proposed sentence are sparse. There is no acknowledgement of the officer's decision to accept the consequences of his actions and plead guilty. Further, we cannot help but believe that the Hearing Officer's characterization of events was seriously coloured by the two charges which were withdrawn.

34. This was clearly inappropriate and appears to have resulted in the imposition of a penalty of a greater magnitude than warranted.

35. For these reasons, the penalty imposed upon P.C. Terry Allen by Service Adjudicator Superintendent C. Jackson on April 21, 1993, that he forfeit 3 days' pay following his conviction of Neglect of Duty in that he failed to report a matter that was his duty to report, contrary to Section 1. (c)(vi) of the Code of Offences contained in Regulation 791, R.R.O. 1980; and that he forfeit 15 days' off following his conviction of deceit in that he did knowingly make or sign a false statement in an official document or book, contrary to Section 1. (d)(i) of the Code of Offences contained in Regulation 791, R.R.O. 1980 is set aside.

36. It is ordered that Constable Terry Allen lose 2 days' pay on a charge of Neglect of Duty and 3 days' pay on a charge of deceit.

DATED THIS THE 4TH DAY OF MAY, 1995.

Murray W. Chitra, Chair