ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE CHARLES MORDEN
Appellant
-and-
PEEL REGIONAL POLICE SERVICE
Respondent
DECISION
Panel: Karlene J. Hussey, Member Raymond J. Silenzi, Member
Hearing Date: November 29, 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:
Karlene J. Hussey, Member
Raymond J. Silenzi, Member
Appearances:
Ian J. Roland, Counsel for the Appellant
Ken Harris, Counsel for the Respondent
Stu Campbell, President, Peel Regional Police Association
Hearing Date: November 29, 1996
General Background:
This is an appeal arising from the decision of Superintendent D. Banting on August 25, 1995 in which he assessed the penalty of dismissal on Police Constable Charles Morden.
Constable Morden pled guilty before Superintendent Banting to the disciplinary offence of Discreditable Conduct contrary to section 1(a)(vii) of the Code of Offences contained in Regulation 927 of the R.R.O. 1990, as amended (the "Code").
The specific provision of the Code is the following:
Any … 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,
(vii) is guilty of an indictable offence or an offence punishable upon summary conviction under the Criminal Code (Canada) …
This disciplinary action related to three convictions imposed in May of 1995 on charges of assault contrary to section 266 of the Criminal Code. Constable Morden pled guilty to these offences and received a sentence of 14 days community service plus 2 years probation.
Constable Morden now appeals the penalty of dismissal imposed by Superintendent Banting under the Police Services Act, R.S.O. 1990, c. P.15 (the "Act").
The Facts:
All three offences took place in the years 1988 and 1989, prior to the time Constable Morden was sworn in as a police officer. He became a member of the police force in July, 1990. The three charges were filed in December, 1994, some four years after he commenced his employment with the Peel Regional Police Service. The facts are not in dispute.
The first incident was in June or July of 1988. The Appellant and a female friend were riding a dirt bike. They approached a hill and the friend requested that Morden let her off the bike. He refused, proceeded, and the bike overturned. Later that day he complained to the friend that his leg was sore, called her a "stupid bitch" and said he could have broken his leg in the fall. She responded in an "off-hand manner". He was displeased with her response and slapped her on the cheek. He did this in the presence of his girlfriend S.O1.
The second incident was on June 28, 1988. Charles Morden and S.O. were in a parked car and began to argue. S.O. tried to exit but the Appellant pulled her back into the vehicle and the argument escalated. The Appellant struck S.O. on her right cheek causing three scratches.
The third incident happened in October or November of 1989. Charles Morden and S.O. had then become engaged. He picked her up at work on an occasion and was teased by her co-workers about his jealous behaviour the night before. Shortly after leaving S.O.'s workplace the Appellant struck S.O. on her face and this resulted in a black eye. They both concocted a story about the injury and this was not divulged until S.O. and the Appellant were divorced. The Appellant and S.O. were married in June, 1990. They separated in August, 1990 and subsequently divorced.
The Appellant's Position:
Mr. Roland, on behalf of Constable Morden, challenges the decision of the Hearing Officer on four grounds.
a) The Hearing Officer relied on a document he described as a protocol entitled "A Response to Woman Abuse in the Region of Peel" for the purpose of:
i. accentuating the significance of "woman abuse";
ii. assessing the public's ability to maintain confidence in the service.
b) This document was never presented to the Appellant or his Counsel, nor was it ever put before the Hearing Officer or even referred to at the hearing. It is a fundamental breach of natural justice and contrary to the obligation of audi alteram partem for the Hearing Officer to have gone outside the evidence and submissions.
c) By introducing this "evidence" following the conclusion of the hearing, the Hearing Officer stepped outside of his quasi-judicial role and became party to the proceeding.
d) Decisions rendered in disciplinary proceedings, which are by nature quasi-criminal and in personam, should not be governed by policy factors but rather should be resolved on the basis of the evidence of the offence charged and the law applicable thereto.
Re Gloucester Police Force and Tremblay (1983), 1983 CanLII 1736 (ON HCJ), 42 O.R. (2d) 395 (Ont. Div. Crt.) at p. 396-397.
The Hearing Officer erred in applying his own personal prejudice or biases to the relative seriousness of assaults between men and women and men to men. He failed to apply an objective standard to the relative seriousness of Discreditable Conduct to the penalty process.
The Hearing Officer failed to take into account the fact that these offences occurred five to seven years earlier and prior to Constable Morden's employment as a police officer and that by pleading guilty Constable Morden demonstrated contrition.
a) The principle to determining an appropriate disciplinary penalty requires that like offences receive similar penalties. More serious assaults have resulted in significantly less serious penalties.
Cooke v. Picknell (Board of Inquiry, August 3, 1993)
Yuen v. Cornwall & Fiume (Board of Inquiry, August 29, 1985)
Huard v. Romualdi & Doucette (Board of Inquiry, September 24, 1993)
Gojdos v. Cooper (Board of Inquiry, August 16, 1995 and September 23, 1995)
b) The Peel Regional Police Service has set a penalty standard for Discreditable Conduct for a criminal conviction of assault while off duty which it has not followed in this case. In the latter regard, Mr. Roland draws our attention to a prior penalty of 10 days forfeiture of pay imposed on Constable Morden in 1993 following a finding of Discreditable
Conduct arising from two other assault convictions.
- Mr. Roland suggests that progressive discipline in the appropriate penalty. He asserts that it is this case is inappropriate because the assaults occurred before Constable Morden's employment and the Hearing Officer correctly concluded that this is a "stand alone" matter for the purpose of determining disproportionate to treat the "stand alone" finding of misconduct in this case to require a penalty of dismissal as compared to the penalty assessed against Constable Morden in 1993 for the same offence.
Respondent's Position:
Mr. Harris for the Respondent submitted that the Appellant's entire record of employment should be examined. In addition to the three charges which are the subject of the appeal, Constable Morden has been convicted of the following:
In August, 1991 Constable Morden was charged with two counts of assault and on November 27,1992 was found guilty, pursuant to section 266 of the Criminal Code of Canada. He was assessed a $750 fine and two years probation.
On January 26, 1993 Constable Morden was found guilty of Discreditable Conduct contrary to section 1(a)(vii) of the Code. The penalty was forfeiture of ten days off.
On January 10, 1994 Constable Morden was found guilty of Breach of Recognizance pursuant to section 145(3) of the Criminal Code.
On March 4, 1994 Constable Morden was found guilty of Discreditable Conduct contrary to section 1(a)(vii) of the Code.
This record, Mr. Harris submits, indicates Constable Morden's lack of respect for the rule of law and a clear violation of his oath of office. Counsel also argued that the convictions which are the subject of the appeal need not be treated as "stand alone" offences merely because they escaped the process of justice until now.
Mr. Harris disputes the Appellant's assertion that the Hearing Officer used a document which was not in evidence as the basis for his decision. He submitted that the production of the protocol was of no importance as it was the principle enunciated in the document that was of importance and this principle may be found in other sources including society's expressed aversion towards the abuse of women, the Criminal Code and the civil law sanctions against assault.
Decision:
Introduction of New Evidence
- We are unable to agree with the Appellant's position that the Hearing Officer, Superintendent D. Banting, introduced new evidence to the proceedings when, in his decision, he referred to the document entitled "A Response to Woman Abuse in the Region of Peel". We are of the view that Superintendent Banting applied his knowledge and understanding of the workings of the Peel Regional Police Service and concluded that Constable Morden's position would be severely compromised especially in that police department, which is strongly concerned with woman abuse. The courts have approved the practice of a hearing officer relying on his or her specialized knowledge and understanding of the workings of the police force. In Nason v. Hamilton-Wentworth Regional Board of Commissioners of Police (unreported, Ont. Co. Ct., 31 August 1984), that Court had the following to say:
It was further argued, although not very strenuously, that a reasonable apprehension of bias could be inferred by the fact that the chairman applied his own personal knowledge of the procedures in the Police Department. The Statutory Powers Procedure Act R.S.O. 1980 Chapter 484 [now R.S.O. 1990, c. S.22, s. 16(b)] allows a tribunal to take judicial notice of facts within its scientific or specialized knowledge. Indeed members of the Police Force are authorized and used to try offences under the Police Act in many instances because of their specialized knowledge and experience of the particular force or department. On the evidence in this matter there was no application by the chairman of his personal knowledge in any way which, in my view, could have any bearing on the guilt or innocence of the appellant. (p. 5)
- The particular reference used by the Hearing Officer is an excerpt from the preamble and is completely consistent with the argument used by counsel for the Appellant in his oral submission that spousal abuse should be treated as seriously as any other assault. We find that the use of that reference was purely illustrative as it served to demonstrate the concern of the Hearing Officer that Constable Morden had lost his effectiveness as a police officer with the Peel Regional Police Service.
Failure to Apply Objective Standard
The Hearing Officer characterized the seriousness of assaults between men and women as "far more loathsome than man to man assault". While we do not agree with his analysis we do not find this to be an overriding error which would negate his conclusions. In considering the factors to be weighed in assessing penalty for Discreditable Conduct we are guided by the decision of this Commission in Williams and Ontario Provincial Police (December 4, 1995) which considered three elementsin that case: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police force that would occur should the officer remain on the force.
We have examined the reasons for the decision and have concluded that notwithstanding the application of his subjective views, Superintendent Banting also properly considered objectively the factors enunciated in Williams.
Circumstantial Factors and Appropriateness of the Penalty
Counsel for the Appellant asserts that Constable Morden was not in breach of his oath as the assaults occurred prior to his employment and because of the chronology, the principle of progressive discipline does not apply. Also, Constable Morden has demonstrated contrition by pleading guilty. Counsel has cited four cases in support of his position that the penalty is disproportionately harsh. We did not find the cases to be completely on point as they do not deal with similar charges under the Code, namely, Discreditable Conduct for convictions under the Criminal Code of Canada.
It is a serious matter for a police officer to commit a criminal offence. This Commission has ruled that a hearing officer may order dismissal in a situation where a police officer has committed serious misconduct, and his or her usefulness as a police officer has been annulled: Marsden and Metropolitan Toronto Police (1993), 2 O.P.R. 974. In order to assess Constable Morden's usefulness as a police officer, the Commission must not only consider the particular offences for which he has been convicted, but must also consider his employment history.
The evaluations of Constable Morden are very favourable and show that he is well regarded by his peers.
However, Constable Morden has amassed a sizeable number of criminal convictions and that fact is not altered by the timing of the convictions. This has a serious impact on his credibility and on his ability to exercise his duties as a police officer. By way of illustration, the duties of a police officer are set out under section 42(I) of the Act and they include:
a) preserving the peace;
b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;
c) assisting victims of crime;
d) apprehending criminals and other offenders and others who may lawfully be taken into custody.
Co-extensive to duties (b) and (d) for example, is the additional duty, when called upon, to serve as a witness to the prosecution. His credibility under those circumstances would be subject to attack. Further, a police officer who has been convicted of numerous criminal offences, particularly offences against the person, loses the ability to prevent and encourage prevention of crimes effectively.
Constable Morden is compromised in his efforts to assist victims of crime, having created victims himself. The ability of such an officer to carry out his duties would be severely impaired.
Moreover, if a police officer who is unable to carry out their duties effectively is retained on the force and given the same responsibilities as every other officer, in the eyes of the public, the effectiveness of the service as a whole and, therefore, the administration of the law will be brought into disrepute. Where the public has no faith in the police service to carry out its function effectively the police service loses its ability to preserve the peace and protect society from crime.
We find, therefore, that the Hearing Officer's conclusion that Constable Morden cannot remain in the police service is both proper and acceptable.
Accordingly, the Appeal is hereby dismissed.
DATED THIS 20TH DAY OF MARCH, 1997.
Karlene J. Hussey Raymond J. Silenzi Member, OCCPS Member, OCCPS