Constable Alan Drennan v. Hamilton-Wentworth Regional Police Service, 1996 CanLII 17298

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE ALAN DRENNAN

Appellant

-and-

HAMILTON-WENTWORTH REGIONAL POLICE SERVICE Respondent

DECISION

Panel: Alok Mukherjee, Member Dean Peachey, Member

Hearing Date: Monday, January 8, 1996

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:

Alok Mukherjee, Member Dean Peachey, Member

Appearances:

Doug Allan, Hamilton-Wentworth Police Association, Agent for the Appellant

David Beck, Regional Municipality of Hamilton-Wentworth, Legal Services Department, Counsel for the Respondent

Hearing Date: Monday, January 8, 1996

1. This is an appeal from a decision of the Hamilton-Wentworth Regional Police Services

2. Board to confirm a penalty imposed on the Appellant of forfeiture of seventy-two (72) hours time off following his conviction for Discreditable Conduct in that he used profane, abusive or insulting language that relates to a person on the basis of sex, contrary to section 1(a)(i.2) of the Code of Offences, contained at R.R.O. 1990, Regulation 927.

The Facts:

3. On March 1, 1994, Constable Drennan was charged with misconduct for having allegedly used profane, abusive, or insulting language related to a person's sex toward a female colleague, Constable H. The original charge sheet alleged that four instances of such behaviour toward Constable H. occurred between July 25, 1993 and August 21, 1993.

4. Constable Drennan was ordered to appear for a hearing on March 18, 1994, before Deputy Chief Christine Silverberg. After a series of adjournments, the disciplinary hearing commenced on July 26, and continued for thirteen days in July, August, September, and October of that year. On October 6, 1994, Constable Drennan pleaded guilty to one of the instances, and the charge sheet was amended to delete the other three allegations.

5. The incident on which the amended charge was based took place in the Dundas Police Facility around a table between the locker rooms and the kitchen area on July 25, 1993, as the officers were gathering for morning parade.

6. Constable Drennan was sitting beside Constable H., and addressed her as "Deep throat H____." Several other officers were present to hear the comment, including the Shift Sergeant.

7. Deputy Chief Silverberg heard various arguments with respect to appropriate penalty and on October 11 imposed a forfeiture of seventy-two (72) hours time off.

8. In delivering the penalty, the Hearing Officer summarized counsel's statement of general principles for determining penalty in employer-employee relationships: specific deterrence, general deterrence, and rehabilitation of the offending party. She recognized that she was dealing with a relatively new provision of the regulation, and that there was no specific standard for basing penalty. Deputy Chief Silverberg acknowledged a letter of apology that Constable Drennan had written to the Chief on the day on which he entered a guilty plea, and noted that Constable Drennan had apologized previously to Constable H. in person in the presence of an Inspector. The Hearing Officer accepted the Inspector's testimony that the apology appeared to be sincere.

9. She considered and rejected counsel's argument that the penalty should be mitigated by Constable Drennan's guilty plea, reasoning that coming after two week's of hearing time the plea did not save the police service significant time and resources, nor did it prevent Constable H. and other witnesses the agony of participating in the proceedings.

10. The Hearing Officer considered and rejected the arguments of Constable Drennan's agent that sentence should be mitigated because Constable H. had "problems" and displayed traits that needed to be addressed by the administration. She found the attempt by defense counsel to discredit Constable H. to be "overzealous" and that the inquiries into her background "failed to establish relevance to the misconduct in question or to her credibility." The Hearing Officer based this finding on Constable H.'s demonstration of cognitive abilities during testimony, her accuracy and consistency throughout cross-examination, and the testimony of her patrol partner and that of another constable. The Hearing Officer also found that in the months immediately prior to the incident Constable Drennan and Constable H. appeared to be getting along fairly well, and that Constable Drennan had made comments that were supportive of Constable H.

11. The Hearing Officer also found that the comment "Deep throat H_____" was legitimately understood by Constable H. as a disgusting and vulgar reference, that it was viewed as inappropriate by the Shift Sergeant who overheard the comment, and that Constable H. communicated to Constable Drennan that the comment was unwelcome at the time that it was uttered. She accepted the testimony of Constable H. that the comment negatively affected her ability to communicate honestly with Constable Drennan and to have confidence that she would receive backup if needed; it created job stress and physical symptoms of feeling sick to her stomach and headaches; and as time went on she started to feel isolated, segregated and discriminated against in a way that she would not have experienced if she were a male officer. The Hearing Officer also accepted the testimony of another female constable that as a result of the incident Constable H. did not feel that she had support from other squad members and "felt stuck in a corner having to fight her way out."

12. The Hearing Officer found that in the squad where the incident took place "the work environment is one in which there are a lot of 'off-colour' jokes, 'crude' jokes, 'vulgar' jokes, 'racist' jokes, and 'sexist' jokes." She found that Constable Drennan took his duties seriously, was often first to back officers up, was an unofficial leader on the squad, and contributed to its esprit de corps. She also found that Constable Drennan was often considered the "joker" of the group, and often was more vulgar in his expression than were others. While there was evidence that Constable Drennan's comment was unwelcome, she stated that she found no evidence that this incident of misconduct formed a pattern or was repetitive.

13. She noted that neither party to the disciplinary hearing offered anything from Constable Drennan's record to assist her in her decision, and that his agent had indicated that she should make her penalty decision solely on the evidence derived from trial.

14. Based on the evidence presented to her, the Hearing Officer observed that there is a tremendous pressure on women in policing to ignore sexual harassment, to somehow cope with it or accept it because to confront it means "a negative impact on working relationships, long-term consequences for everything from performance appraisal to promotion and potentially soured peer relationships and ostracism." Toward the end of the decision, the Hearing Officer made other comments on the effect of "sexual harassment" on relationships in the workplace, and reviewed several disciplinary decisions related to sexual harassment, using the term "sexual harassment" frequently in the latter part of her decision.

The Arguments:

15. Mr. Allan, for the Appellant, presented four arguments:

16. The Board erred in not giving sufficient weight to the fact that the Appellant pleaded guilty to the offence and apologized for his actions both orally and in writing. He noted that Constable Drennan pleaded guilty when the prosecution finished presenting its case and the evidence was fully known, and thus took the first opportunity to plead guilty to an amended charge.

17. The penalty imposed was unjust and unreasonable, and was imposed without comparison to appropriate cases. He presented cases that he argued would provide an appropriate comparison base:

P.C. Michael Walt (Board of Inquiry, April 6, 1994) in which an officer alleged to have used the terms "niggers" and "bitch" with a member of the public received a reprimand.

P.C. Owen Culleton (Board of Inquiry, July 19, 1993) in which an officer who was found guilty of misconduct for having made disparaging remarks to a member of the public regarding his religion received a reprimand.

3. Although the "deep throat" comment constituted misconduct, the Hearing Officer erred in defining this behaviour as "sexual harassment" at sentencing and based her sentence on comparisons to cases of sexual harassment. The Appellant argued that although the other cases referred to by the Hearing Officer constituted sexual harassment as defined by the Human Rights Code R.S.O. 1990, Chapter H.19 as either a pattern of recurring behaviour or a poisoned or hostile working environment, Constable Drennan's single comment should not be construed as sexual harassment. The severity of penalty therefore should not be based upon comparisons to cases of sexual harassment.

He cited the arbitration case of Metro Toronto Police Services Board v. John Brynildsen (Arbitrator Professor Jan Hunter, April 26, 1994) where it was found that a single sexual overture did not constitute sexual harassment, a view that is generally reinforced in the Judith Keene text Human Rights in Ontario, 2nd ed. (Toronto:

He also noted that the Hamilton-Wentworth Police Service did not have a sexual harassment policy or definition in place at the time of the incident. At the disciplinary hearing testimony was presented that off-colour joking and sexual innuendo were common among officers, that such behaviour was not disciplined by superiors, and that Constable H. admitted participating in such behaviour.

4. The Police Services Board erred in not hearing the officer's record at the time of his appeal to the Board. He also argued that Constable Drennan's record since the hearing would serve to enlighten the Commission if it were to be entered.

The Respondent's Arguments:

16. Mr. Beck, for the Respondent, opposed the request to enter the officer's record on the grounds that the Appellant had specifically declined to have his record entered at the time when submissions were made for sentencing, and the officer's performance since the time of sentencing was not relevant to determining whether the Hearing Officer's decision was properly made.

17. He also cited the 1979 decision of the Supreme Court of Canada, in Palmer v. The Queen (1980) 1979 CanLII 8 (SCC), 1 S.C.R. 759 (S.C.C.).

18. The Commission denied the Appellant's request to enter new evidence as such evidence is not deemed necessary or relevant to assessing the appropriateness of the penalty imposed by the Hearing Officer and confirmed by the Board.

19. In response to the Appellant's argument that consideration should be given to the guilty plea, Mr. Beck argued that a guilty plea may mitigate in sentencing if the plea is made in a timely fashion and avoids the time, expense, and agony of a trial. In this case however, he argued that the plea did not save time or agony. It came after many days of a stressful trial, one where, in rendering her decision, the Hearing Officer stated that Constable H. had "experienced hell" in the course of testifying and being cross-examined. Mr. Beck argued that the question of whether the penalty was fair and reasonable is difficult to answer because there is not a ready comparison to similar cases from police services. Therefore, he proposed that we look at other misconduct cases, and cited the following Commission decisions: Constable Richard Ashby (1990) O.P.R. 882, Constable David Dempsey (1991) O.P.R. 909, Constable Robert Gibson (1986) O.P.R. 707, Constable Edward King (1992) O.P.R. 923 and Detective Sergeant Richard Brayshaw (1992) O.P.R. 937.

20. Mr. Beck also argued that in rendering her decision, the Hearing Officer correctly noted the impact of the behaviour on the person who was its target.

21. Responding to the argument that the Hearing Officer erred in using a definition of sexual harassment in this case, he pointed to a textbook Sexual Harassment in the Workplace, 2nd ed. by Arjun P. Aggarwal (Toronto: Butterworths, 1991), which states at page 57 "It has been well established that sexual harassment is a form of discrimination based on sex". With respect to so-called joking behaviour, the same source asserts, "Crude and bad jokes with sexual reference are not specifically forbidden by anti-discrimination laws. However, such joking behaviour may constitute sexual harassment if it creates, as a condition of employment, a work environment that undermines the employee's sexual dignity as a man or woman."

22. He also referenced the decision of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 (S.C.C.) which states at paragraph 44439 "The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment."

23. Finally, Mr. Beck referred to Section 24701 of the Canada Labour Code, R.S.C. 1985, C.L-2 as amended which defines sexual harassment as "any conduct, comment, gesture, or contact of a sexual nature that a) is likely to cause offence or humiliation to any employee..." He argued that the Hearing Officer was in fact clear in her sentencing decision that she was dealing with a single offence, and indicated that she had considered an even more severe penalty.

24. He also argued that at the time of sentencing, the Appellant fully anticipated receiving a significant penalty for the misconduct, and that the Appellant's agent at that time had recommended a forfeiture of three days of time off, in contrast to the current position that the penalty should be replaced with a reprimand.

25. In reply to these arguments, Mr. Allan noted that the Code of Offences does not use the term "sexual harassment," and that the Canada Labour Code applies to federal employees, in a manner similar to how the Police Services Act applies to police officers in Canada.

Consideration of the Issues:

26. The primary provision against which the Appellant's conduct is assessed found at section (1)(a)(i.2) of the Code of Offences states as follows:

27. Any chief of police or other police officer commits an offence against discipline if he or she is guilty of,

(a) DISCREDITABLE CONDUCT, that is to say, if he or she,

(i.2) uses profane, abusive or insulting language that relates to a person's race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, or handicap

27. The source for this wording is to be found in sections 5, 7 and 10 of the Human Rights Code ("the Code"). Section 5 declares that:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, race of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.

28. Section 7(2) of the Code deals specifically with sexual harassment:

(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

Section 10(1)(f) of the Code defines harassment.

(f) "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

Section 39(2)(e) of the Code makes very clear the liability of management for its failure to take punitive or preventive action where conduct under the above sections is concerned.

39.(2)The parties to a proceeding before a board of inquiry are,

(e) where the complaint is of alleged conduct constituting harassment under subsection 3(2) or subsection 5(2) or of alleged conduct under section 7, any person who, in the opinion of the board, knew or was in possession of facts from which he or she ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.

29. This liability clearly requires management to take preventive or disciplinary action in order to avoid liability. Section (1)(a)(i.2) of the Code of Offences provides direction as to the manner in which this management responsibility is to be discharged in police services once a misconduct is found to have been committed.

30. In so far as the section covers all grounds prohibited under the Code, it encompasses components of sections 5 as well as 7 cited above. By being confined to "profane, abusive or insulting language" only, the subsection would appear to have a narrower focus than the Code which covers comment as well as conduct. At the same time, however, by not describing the offensive conduct as harassment, it avoids the restrictive definition of "harassment" provided in the Code.

31. The restriction stems from the use of the phrase "course of" in the definition. Adjudicators have taken that phrase to mean that a single vexatious comment or conduct does not constitute harassment. Thus, in Brynildsen, Professor Ian A. Hunter decided that a single remark of a sexist nature "did not constitute sexual harassment, either as defined by the Ontario Human Rights Code R.S.O. 1990 (c. 19) nor [sic] as defined by Force policy." (page 12)

32. Keene points out in Human Rights in Ontario at page 225:

The view that more than one event is necessary to establish sexual harassment under subsection 7(2) was expressed by the first board to consider that provision, Cuff v. Gypsy Restaurant. In a case decided after Cuff, Purdy v. Marwick Manufacturing Co., the board found (without comment) that section 6(2) had been breached as a result of a single incident. Most cases, however, have involved at least one repetition of "vexatious" behaviour, and it is suggested that Cuff represents the correct approach.

33. As Keene notes, there are exceptions. The Ontario Human Rights Commission, in its "Policy Statement on Sexual Harassment and Inappropriate Gender-Related Comment and Conduct", points out that while a single event may not be seen as "a course of vexatious comment or conduct", it may still be a breach of the Code. It states at page 3:

One incident may not meet the definition of harassment under the Code for the purposes of filing a complaint . . ., but may be sufficient to equal a breach of sections 1, 2, 3, 5 or 6 under a "poisoned environment" analysis.

Persistent and frequent comments or conduct are not necessary prerequisites for there to be a violation of the Code.

Depending on the impact of the comments or conduct on the individual(s), one instance may be sufficient to create a "poisoned environment" for a specific employee or group of employees in a workplace.

34. The discussion of poisoned environment in the "Policy Statement" is to be noted as well at page 6:

Sections 1, 2, 3, 5 and 6 of the Code, which provide protection from sex discrimination in general, can be the basis for a claim that the inappropriate behaviour creates a "poisoned environment". A poisoned environment means unequal treatment for one person or a group of persons. It results in unequal terms and conditions of employment, accommodation, the provision of services, contracting, or membership in vocational associations. In an employment situation, for example, a poisoned environment can interfere with one's work performance and cause emotional or psychological stress not experienced by other employees.

In determining whether there is a poisoned environment, the key is to look at the impact of the comments or conduct on the individual rather than the number of times the behaviour occurred. A poisoned environment can be created by the comments or actions of any person regardless of his or her position or status, including a co-worker, supervisor, manager, co-tenant, etc.

35. This Policy Statement provides useful and important guidance in interpreting section (1)(a)(i.2) of the Code of Offences. Where the alleged offence under this section involves a single use of "profane, abusive or insulting language" as in the present case, the determination of misconduct need not be in terms of harassment as defined in the Code; rather, the determination may be made by applying a "poisoned environment" analysis as explained above.

36. Second, when an offence has been found, the standard to be applied to assess penalty should be what the "Policy Statement" calls "full substantive equality". As the "Policy Statement" clarifies at page 4:

The substantive model of equality looks to the effect or result of the differential treatment rather than treating everyone in the same manner.

37. The standard of "substantive equality" recognizes that comments or conduct that are related, for example, to the gender of the recipient, can have a greater impact on a female recipient than if the recipient were a male because of the unequal position of women and men in society and the workplace. As such, there ought to be less concern for the intent of the perpetrator than for the impact on the victim.

38. In Brayshaw the Commission upheld the validity of this approach. While dismissing the appeal of conviction on two charges of Discreditable Conduct for sexually harassing two civilian members of the force, the Commission held that at page 944:

The effect of such behaviour on the victim is an appropriate consideration when imposing penalty. We cannot find that the Presiding Officer gave inappropriate weight to this consideration.

39. A similar view was taken as well by the Hearing Officer in Inspector Lionel Ulrich (Decision of Staff Superintendent Robert Brown, 28 January, 1994) where the charge was of Discreditable Conduct relating to the sexual harassment of six female members. The Hearing Officer stated at page 2:

There is no doubt in my mind at all, that all six complainants have been deeply affected by Inspector Ulrich's conduct and all suffered varying levels of psychological and emotional stress.

This conduct is all the more appalling as it comes from a Senior Officer who is charged with the care and nurturing of his subordinates. I have no doubt that during the three and one half years tensions and stress ran very high among the females of the Ingersoll Police Service.

40. It is our conclusion that section (1)(a)(i.2) of the Code of Offences must be interpreted having regard not only to section 7(2) of the Human Rights Code but section 5(2) as well.

Decision:

41. We note, first of all, that the penalty decision of the Hearing Officer is one of the more detailed, precise, and thorough decisions that have come to our attention. She resisted suggestions for an impromptu pronouncement of penalty immediately upon the conclusion of submissions for sentencing. When she reconvened the hearing five days later, her penalty decision articulated a set of ten findings of evidence, gave attention to contextual factors and, recognizing that there was no precedent within her police service for this charge, attempted to ascertain what penalties had been employed in other organizations. In thus conducting her duties, she demonstrated an exemplary standard of performance for Hearing Officers.

42. We dismiss the argument that the Hearing Officer failed to give sufficient weight to the Appellant's guilty plea and apologies. In her decision, the Hearing Officer clearly discussed these factors, and stated her confidence that Constable Drennan intended to conduct himself differently in the future. There is no evidence to us that her reasoning was flawed or that she failed to give adequate consideration.

43. We also dismiss the argument that the Hearing Officer erred in considering cases of "sexual harassment" in determining penalty. First, we must be clear that the Hearing Officer did not state that the Appellant's case was like any of the other cases considered. We must also be clear that the Appellant pleaded guilty to Discreditable Conduct for "using profane, abusive, or insulting language that relates to a person's ... sex." Whether his action fits or does not precisely fit the various definitions of sexual harassment that are in use is immaterial to the guilty plea. His action fits the definition under the Code of Offences. Given the newness of this section of the Code of Offences at the time of the disciplinary hearing and the lack of equivalent cases, it is not unreasonable for the Hearing Officer to look more broadly at cases related to sexual harassment and misconduct. She should not be faulted for discussing what she considered to be the best comparisons. Indeed, she might be open to greater criticism if she had not looked for any guidance beyond her own experience.

44. With respect to the Appellant's argument that the penalty was significantly harsher than for other "single-incident" offences, it is clear that there have been such cases where the penalty was significantly lighter. There has been a wide range of penalties invoked by employers and tribunals, reflecting the disparate perceptions of the severity that undoubtedly exist. This is an area that is in flux, and will likely continue to shift in the foreseeable future. The rapid evolution of employment discipline presents a real challenge if one is to avoid arbitrary decisions.

45. Consideration that some people have imposed lighter penalties must be balanced by the fact that this single incident did not occur as a one-time interaction between strangers. It occurred within the context of an on-going relationship and significantly affected the quality of working relationships, as well as having substantial impact upon Constable H., all of which was adequately considered by the Hearing Officer. Given that the Hearing Officer was dealing with a relatively new offence under the revised Code of Offences, she should have some opportunity to establish a standard for the Hamilton-Wentworth Regional Police Service in this matter.

46. Thus, for the most part, we find the Hearing Officer's findings to be carefully considered, consistent with the evidence of the portion of the transcript that was supplied to us, and thorough.

47. However, we are in agreement with the point raised by the Appellant that at the time of the incident a culture of inappropriate conversation existed within the Hamilton-Wentworth Regional Police Service and that such behaviour was routinely not disciplined by the management of the Service. The Service had not adopted a policy on sexual harassment, nor taken other significant steps to confront this problem or bring it to the attention of the members of the Service. Although the Hearing Officer stated in her decision that this culture existed, it is not apparent that this finding and a concomitant management responsibility factored into the penalty awarded.

48. To be sure, administering a significant penalty under the auspices of general deterrence is part of developing a new management response. However, if an employee is to be subjected to a significant penalty, he or she ought reasonably to know that prosecution and penalty are a likely result of engaging in the behaviour. The Hearing Officer found, and we agree, that Constable Drennan ought reasonably to have known that his comment was inappropriate and unwelcome. We are not persuaded, however, that in the circumstances described in the evidence, that at the time he uttered the comment, Constable Drennan had any inkling that it might result in prosecution or a significant penalty being administered by the Service. This does not absolve the officer of responsibility for his conduct. It does, however, say that the management of the police service must share some of the responsibility for allowing what would appear to us to have been a work environment that was from time to time hostile -- it subjected female employees to inappropriate and unprofessional treatment.

49. Accordingly, we reduce the penalty to a forfeiture of forty-five (45) hours time off. Because the management of the Hamilton-Wentworth Police Service is not the subject of these proceedings, we are not in a position to make an order with regard to management responsibility. However, the events described in this case give us cause for concern about the policies and procedures in place at the time of the events giving rise to this case. We trust that this situation has been remedied, and would stress the importance of police services throughout the province undertaking steps to:

a. review the adequacy of internal procedures to prevent the use of profane, abusive or insulting language that relates to a person's race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, or handicap, or, should such procedures be absent, take steps to develop them;

b. advise and educate all members of the police service regarding these procedures;

c. impress upon supervisory and managerial personnel the legal responsibility for taking action; and,

d. train such personnel to enforce the procedure and the law in an effective and prompt manner.

50. We apologize to the parties for the delay in issuing this decision. As noted by the parties, this appeal contained unique characteristics. Accordingly, we desired to devote to it the time and attention that it deserved.

DATED THE 6TH DAY OF AUGUST, 1996.

Alok Mukherjee Dean Peachey Member, OCCPS Member, OCCPS