Provincial Constable I.Q. Aujla v. Ontario Provincial Police, 1997 CanLII 22040

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

PROVINCIAL CONSTABLE I.Q. AUJLA

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Raymond G. Leclair, Member Alok Mukherjee, Member

Hearing Date: October 7, 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:

Raymond G. Leclair, Member Alok Mukherjee, Member

Appearances:

Bruce R. Shilton, Counsel for the Appellant

Inspector Michael Shard, Counsel for the Respondent

Hearing Date: October 7, 1996

General Background:

1. This is an appeal pursuant to section 65 of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the "Act") from the decision of Hearing Officer, Superintendent R.J. Fitches, rendered on October 3, 1995. The appeal arises from a penalty of dismissal imposed on Provincial Constable I.Q. Aujla following conviction on a charge of discreditable conduct in that, while off duty, he left a store with merchandise he had not paid for, contrary to section 1(a)(i) of the Code of Conduct contained in Ontario Regulation 927, R.R.O., 1990, as amended (the "Code").

The Facts:

2. The original Notice of Hearing served on the Appellant alleged that:

"On October 21, 1994 while off duty you attended at the SuperCentre store located on Queen Street in Brampton, Ontario. While in the SuperCentre you selected a quantity of merchandise, put some of this merchandise in shopping bags you had with you, and then exited the store with the merchandise without paying for it."

3. Evidence presented at the hearing established that on October 24, 1994 Constable Aujla went to the SuperCentre store for shopping, apparently with a list of items prepared by his spouse. However, upon entering the store he could not locate the list in the pockets of the parka he was wearing. He shopped from memory. As he was leaving the store with merchandise which he had paid for, he found the list. Thereupon, he returned to the store and picked up the additional items worth $85.43 - a combination of foods items, toys and a video - and placed them either in empty plastic bags or directly in the shopping cart.

4. Upon approaching the payment counter with the new merchandise, Constable Aujla states that he discovered that he did not have enough money to pay for the new purchases. He further claims that he had additional funds in a wallet which he had left in his car. Accordingly, it is his assertion that, he left the store with the shopping cart intending to return with money from the car to pay for the merchandise.

5. The store security guard claims that he had been watching the Appellant all the time he went through different aisles removing merchandise. When the security guard observed the Appellant leaving the store without paying for the purchases he followed the latter to his car, approached him and asked him to return to the store. When confronted by the security guard, the Appellant allegedly said: "You have made a mistake. I am a police officer."

6. However, on the security guard's insistence, the Appellant returned to the store with the shopping cart. They went to an office where the cart was emptied and unpaid for merchandise identified. At this point, the security guard called the local police. A Peel Regional Police Service officer responded to the call. The Appellant identified himself to the investigating officer as an O.P.P. Constable, repeated his version of his actions and his reason for leaving the store with the shopping cart. Constable Aujla was subsequently charged with theft.

7. The Peel officer then accompanied the Appellant to his car so that he could get the money he claimed to have left there. The Appellant searched in various places of his car but could not locate the wallet with the extra funds.

8. It was found that the Appellant had an automatic bank card with him and there was a bank machine on the store premises. The Appellant claimed that since he was confident that he had money, he did not think to withdraw money from the machine. He further claimed that he did find these funds when he returned to go home after being charged, and that it was only due to sheer nervousness and embarrassment that he had failed to locate the wallet when the investigating officer had escorted him to his car earlier.

9. The charge of theft against Constable Aujla did not proceed to a criminal trial. Instead, it was pursued through a local court diversion program. As a result, Constable Aujla was required to attend a session on the seriousness of shoplifting. The O.P.P. charged Constable Aujla with discreditable conduct on December 20, 1994 and Superintendent R.J. Fitches was appointed to conduct a hearing. On September 6, 1995, on the advice of his then counsel, Mr. W. Michael Temple, Q.C., the Appellant entered a plea of guilty.

10. The hearing was conducted on September 6, September 7 and October 3, 1995. In his decision rendered on October 3, 1995, Superintendent Fitches upheld the charge and imposed a penalty of dismissal.

The Appeal:

11. The appeal arises from the Hearing Officer's decision and is based on the grounds that:

12. there were problems with the cross-examination of the Appellant;

13. the findings of the Hearing Officer were unreasonable and not supported by the evidence;

14. the penalty of dismissal was harsh and exceeded the penalties imposed in cases of a similar nature.

15. At the outset of this appeal hearing, Mr. Shilton, for the Appellant, had requested an order to set aside the conviction and order a new hearing on the basis that the Hearing Officer's acceptance of a plea of guilty was improper, unacceptable and fatal. We denied this request and our reasons are set out in a separate decision.

16. Mr. Shilton now asks that the appeal be allowed and the penalty reduced.

The Arguments - Appellant's Position:

(a) Improper Questions

14. Mr. Shilton's first argument is that there were fundamental problems with the hearing. He asserts that prosecution engaged in, and the Hearing Officer allowed, improper questioning during the cross-examination of the Appellant.

15. He draws attention specifically to two questions asked of the Appellant during the second day of hearing.

Mr. Shard: Q. You indicated in your testimony that

you didn't place any of the items inside the bags that were already in the cart, that you placed them on top. How is it possible that Peter Frederick1 could be confused or mistaken about that?

A. I have no idea.

Mr. Shard: Q. I put it to you, Constable, that there is no way for Peter Frederick to be confused about whether or not you put theses items down in bags or not, and that you did put the items down in bags. (emphasis added)

A. No, I did not.2

16. Mr. Shilton says that these questions had severe implications for assessment of penalty. He argues it was not fair to ask the witness to explain the comments or conduct of a Prosecution witness, thereby boxing him in. He cites R. v. R. (A) (1994), 1994 CanLII 4524 (MB CA), 88 C.C.C. (3d) 184 in which the Manitoba Court of Appeal held at pages 188 and 189 that:

As a general rule, the opinion of an accused as to the veracity of a Crown witness is irrelevant . . .

Quite apart from the irrelevancy of the accused's opinion, this type of question is mischievous in that it tends to place an improper burden on the accused to account for another's conduct.

17. According to counsel for the Appellant, the Hearing Officer never addressed the issue of the propriety of these questions.

18. It is Mr. Shilton's contention that reliance on this type of cross-examination on the part of the Hearing Officer is unacceptable.

(b) Assessment of Evidence

19. Mr. Shilton's second argument is that the Hearing Officer's assessment of evidence was improper.

20. He points out that the Hearing Officer found the security guard's evidence to be "thorough and convincing". However, he argues that Superintendent Fitches failed to analyze the evidence for credibility.

21. Mr. Shilton says that the security guard's recollection of events after the Appellant was brought into the office and his shopping cart examined are at variance with those of the Appellant and the investigating officer. There are thus three different versions. He argues that the Hearing Officer did not resolve the discrepancy among them or give reasons for why he preferred the security guard's version over others'.

22. Their memory of which items were in shopping bags and which were not and, even, if the Appellant had empty shopping bags, differ as well. On this issue, Mr. Shilton submits that the security guard's testimony is not compelling. Even so, he asserts that the Hearing Officer reverses the burden of proof and holds the Appellant responsible. This, he contends, further undermines the credibility of the finding.

23. Mr. Shilton suggests that these factors call into question the credibility and reliability of the security guard's evidence. He suggests that this evidence is flawed, yet the Hearing Officer accepts it completely. On this basis, Mr. Shilton asks that the Hearing Officer's assessment of evidence and his finding be reviewed

24. Further, Mr. Shilton argues that the Appellant did not have a guilty mind. He gave a reasonable explanation for his action. However, having decided to accept the security guard as credible, the Hearing Officer, in stating the reasons for his finding, includes matters on which evidence is open to interpretation. Specifically, the Hearing Officer refers to "the empty shopping bags" and the Appellant's "concealment of the items within the shopping bags". On the other hand, he makes no mention of factors which go to show the Appellant's state of mind at the time he was engaged in the alleged conduct.

25. In particular he noted that according to the security guard's own testimony, he was calm and not furtive while in the store.

Mr. Shard: Q.With respect to the distance, again, as he approached the biscuits do you recall which way he would have been looking?

A.Again, at the product. And whilst concealing the product in the direction that the bag was. In terms of looking around again, he may have looked around. He was – he didn't seem nervous about it. There are some people that – if I can make reference to other people I've seen on the job, some are nervous and they're antsy, they're looking around. Others are quite calm. I'd say he was one of the few that were calm. Like, he wasn't in a hurry to get out, or that much concerned.3

26. Mr. Shilton contends that this shows the absence of a guilty mind. He argues that the Hearing Officer should have taken this into account while considering the basis for the guilty plea. He did not do so in his assessment of the evidence.

(c) Penalty

27. Mr. Shilton's third argument pertains to the issue of penalty. He submits that the penalty of dismissal was harsh, excessive and out of line with similar cases.

28. He suggests that this inappropriate penalty flowed from the flawed standards applied by the Prosecution and the Hearing Officer. The Prosecution's approach to the assessment of penalty is contained in the following submission by Inspector Shard, the Prosecutor:

Inspector Shard: … I can advise that to a great extent the severity of my penalty position, and probably the difference between my friend

and I, arise out of the intent issue. It is my basis of submission that Constable Aujla did have the intent to remove and steal those items. And it is clear that Constable Aujla has not admitted that here today.

My friend referred to a number of cases, and at numerous points indicated that the matter was worse because the individual showed no remorse and didn't volunteer - didn't acknowledge criminal offences. It's my submission that, depending on your findings, it is not necessarily worse.

It's my submission that this case is in line with those cases and that, again, there is no remorse. There is no admission of error and there is no admission of intent. I submit, sir, that the lack of that admission is significant. It's quite simply that the approach, saying that it's the security guard who was wrong, it is that sort of approach which does speak to the remorse.

29. And, again, that approach, which speaks to whether or not this is a single act of human frailty, and whether it is a single act, and then there are insights into the act through subsequent details.4

30. Mr. Shilton argues that it was improper for the Prosecution to give no weight to the plea of guilty and to the fact of the Appellant giving testimony. Further, he argues that a hearing cannot be used to support an aggravated case, as the Prosecution did in Inspector Shard's submission on penalty.

31. In effect, Mr. Shilton takes issue with the Prosecution's approach to the question of penalty. He acknowledges, however, that there is no evidence one way or another of what weight the Hearing Officer gave to Inspector Shard's approach.

32. Yet, at the same time he says that the Hearing Officer's own approach to penalty was flawed as well. He draws attention to the two factors that the Hearing Officer identified as going to mitigation. In his reasons for penalty, the Hearing Officer stated that:

In cases relevant to penalty in this matter two issues are relevant. Number one, evidence of medical or psychological difficulties may help mitigate the facts. Number two, evidence of a significant unblemished career and/or evidence of a good reputation may assist in defining the acts as abhorrent.5

33. It is Mr. Shilton's argument that the exclusion of all other considerations resulted in an inappropriate assessment of penalty. He points out that the Hearing Officer gave no consideration to the fact that there was no criminal finding of guilt and no conviction, and that he was dismissive of the Appellant's career of six years.

34. He argues that in the determination of penalty, the Hearing Officer gave no consideration to factors such as general deterrence, specific deterrence, progressive discipline, possibilities for rehabilitation, any established range of penalty, the Appellant's fitness to remain a police officer, and his usefulness as a witness.

35. While the Appellant did not have an extraordinary record of office, nor was it the opposite, deserving of a dismissive treatment by the Hearing Officer. It is Mr. Shilton's contention that the Appellant's usefulness to the O.P.P. has not ended and, therefore, cannot be summarily dismissed.

36. Mr. Shilton submits that unless the conduct deserves it, penalty should be progressive, and that dismissal should be reserved for the worst cases. He refers to R. v. Pruner [1979] 9 C.R. (3d) S-8 (Ont. C.A.). In this case, Lacourcière, J.A. states at page S-11:

. . . The appellant . . . had no previous criminal record at the time of the offence, and his pre-sentence report is rather favourable. While admittedly this was a most serious offence fraught with potential disaster, it cannot be said that it was the most serious offence of its kind. I should refer to a statement in a 11 Hals. (4th) 287, para. 481, on sentencing principles:

"As regards most offences, the policy of the law is to fix a maximum penalty, which is intended only for the worst cases, and to leave to the discretion of the judge the determination of the extent to which in a particular case the punishment awarded should approach to or recede from the maximum limit."

I stress the words "intended only for the worst cases" (now italicized).

37. It is Mr. Shilton's contention that fixing a maximum penalty on the basis of only two mitigating factors, both inapplicable to the Appellant, and by excluding consideration of all other factors, was wrong. He says the Hearing Officer should have applied a more comprehensive test.

38. Further, he says that in order to consider an appropriate range, the Hearing Officer should have looked at similar cases not only from the O.P.P. but other jurisdictions as well. He cites the following cases: Marsden and Metropolitan Toronto Police (1994), 2 O.P.R. 974 (OCCPS); Walker and Metropolitan Toronto Police (unreported, Hearing Officer Superintendent B. Nadeau, February 24, 1986); Simpson and Metropolitan Toronto Police (unreported, Hearing Officer Superintendent D. Wilson, May 11, 1990); Sills and Metropolitan Toronto Police (unreported, Hearing Officer Superintendent B. Nadeau, January 13, 1989; Kennedy and Metropolitan Toronto Police (unreported, Metropolitan Toronto Police Services Board, September 13, 1994); Kavanagh and Metropolitan Toronto Police (unreported, Hearing Officer Superintendent D. Wilson, June 12, 1992); Kelly and Metropolitan Toronto Police Services Board (unreported, Hearing Officer Superintendent D. Wilson, December 4, 1992); Guay and Metropolitan Toronto Police (unreported, Hearing Officer Judge L.C. Kozak, September 11, 1990); Moore and Metropolitan Toronto Police (unreported, Hearing Officer Superintendent G. Moduck, February 18, 1994); Campbell and Metropolitan Toronto Police (unreported, Hearing Officer Superintendent D. Wilson, May 11, 1992).

39. He notes, in particular, Moore and Metropolitan Toronto Police. In that case the officer was charged with misconduct away from the place of work. One of the grounds on which Prosecution sought the penalty of dismissal was that the conduct had brought, or was likely to bring, disrepute on the organization. In his reasons, the Hearing Officer found insufficient basis for this line of argument. At page 4 of his decision, he approvingly adopted the reasoning of a labour arbitration case which stated that there is an onus on the company to show that:

40. the conduct of the grievor harms the company reputation or product . . .

41. the grievor's behaviour renders the employee unable to perform his duties satisfactorily . . .

42. the grievor's behaviour leads to refusal, reluctance or inability of other employees to work with him . . .

43. the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the company and its employees . . .

44. places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing the work forces . . .

45. It is clearly Mr. Shilton's argument that the Hearing Officer in the present case failed to apply any of these kinds of tests while determining penalty. He submits that, in view of the fact that criminal charges were withdrawn, the evidence fell short and the Appellant is still capable of contributing useful service, the penalty of dismissal is excessive and unwarranted.

46. He now submits that should this appeal find the Appellant guilty of discreditable conduct with intent to steal, the appropriate penalty will be reduction in rank for six months to one year, but if he is found guilty of discreditable conduct without intent to steal, a lesser penalty would be the appropriate decision.

Respondent's Position:

(a) Improper Questions

42. Inspector Shard disagrees that the cross-examination of the Appellant was improper. He argues that while the questions put to the Appellant could have been better phrased, they were relevant as their purpose was to prove intent.

43. He contends that the Hearing Officer placed no undue importance on the Prosecutor's questions. He asks that the issue be considered in light of the standard laid down in R. v. R (A). The Manitoba Court of Appeal states at page 18:

The mere fact that an improper question was asked does not, however resolve the issue. As was said by the Ontario Court of Appeal in R. v. Daly (1992), 57 O.A.C. 70 at p. 75, 16 W.C.B. (2d) 622 (Ont. C.A.):

Improper cross-examination does not necessarily require reversal. The effect of the improper cross-examination must be considered in the context of the full cross-examination and the entire trial.

. . . The only remaining point is the judge's reaction to the answer given by the accused to the improper question. Having rejected the accused's explanation as raising no reasonable doubt, did he convict because there was no other? In other words, did he place a burden on the accused to explain why the complainant might have lied?

(b) Assessment of Evidence

44. Inspector Shard says that the Hearing Officer made his finding of the Appellant's credibility on the basis of many factors, and not only the cross-examination. In other words, even if the cross-examination is found to have been improper, it does not call for a reversal of the conviction.

45. Turning to the Hearing Officer's assessment of the evidence, Inspector Shard contends that it is not necessary for the Hearing Officer to state every factor considered in the finding, or to review every issue in the written decision. It is sufficient to state "some of the reasons".

46. With respect to the question of whether the Appellant intended to steal or not, it was the Hearing Officer's conclusion, having watched and heard both the Appellant and the security guard, that the security guard was more believable. Inspector Shard argues that this was not an unreasonable finding. While there were differences in the evidence of the two as to the order in which items were selected and placed in the shopping cart, the security guard went into greater detail and showed a clearer sense of the events than the Appellant.

47. Similarly, he contends, the Hearing Officer has considered the contradiction between the Appellant's and the security guard's version of the former's leaving the store and looking for money, and found the latter's version to be more credible.

48. On balance, according to Inspector Shard, the Hearing Officer did not find the Appellant's version of events feasible. In his written decision, he has given enough reasons for his finding. As such, the finding is reasonable and well supported by evidence.

(c) Penalty

49. Inspector Shard cites this Commission's decisions in Williams and Ontario Provincial Police, (December 4, 1995) and Trumbley and Pugh (1991), 2 O.P.R. 894 by way of authority as appropriate jurisprudence to assess the Appellant's future usefulness to the O.P.P., ability to reform or rehabilitate, and damage to the police service.

50. In Williams, the Commission held at page 15 of its decision that:

"The assertion that Constable Williams can be useful or an asset to the Ontario Provincial Police after a finding of misconduct is argued by his counsel with reference to a number of prior decisions. For this to be the case though, three elements must be considered with reference to these cases: 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 if the officer remain on the force."

51. And in Trumbley and Pugh, the Commission stated at page 904 of its decision that:

One of the major considerations, then, is reformation - the likelihood that the employee may continue such conduct in the future. In our view it was clearly appropriate for the presiding officer to consider the evidence of Constable Pugh on this issue of reformation or probable future conduct. He committed no error in so doing.

52. It is Inspector Shard's contention that the Hearing Officer took these factors into account in his determination of penalty. As to the need to consider the concept of progressive discipline, he argues that this has to be balanced against seriousness of the offence and, as such, does not have to apply in every situation. The same consideration, according to him, applies to the principle of looking at a range of penalties. He argues, citing Williams, that each case has to be assessed on its own terms, with flexibility at both ends of the range.

53. Finally, on the matter of there having been no criminal proceedings or convictions, Inspector Shard argues that this has no relevance to the disciplinary hearing in that different sets of facts are used in the two proceedings. In the present matter, he submits that the case-by-case approach recognized in the Commission's decision in Williams is the right approach.

54. As to an appropriate penalty should the Commission set aside the Hearing Officer's assessment, Inspector Shard suggests that the case of Simpson provides useful guidance in that the two cases are comparable as to the nature and seriousness of the offence. In that case, the penalty was reduction in rank.

55. By way of reply, Mr. Shilton questions the relevance of Williams. He argues that the factual situation in that case was different. There were at least six instances of misconduct with a cumulative effect, and there was no likelihood of P.C. Williams being reformed. As far as potential impact on the O.P.P. is concerned, should the Appellant continue to be a member, Mr. Shilton says that issue is absent in the present case as it was never addressed.

Decision:

56. Notwithstanding the concerns expressed by Mr. Shilton with respect to the cross-examination of his client, there is no question in our mind that Provincial Constable Aujla, in leaving the SuperCentre store with unpaid for merchandise, did act in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ontario Provincial Police. Removing goods or products from a place of business by anyone, without having first paid for them or without a good reason, is an offence. A particularly serious view must be taken when an officer of the law engages in such an act.

57. Provincial Constable Aujla admits to the act, though there may be variations in his version of the chain of events and that of other witnesses. His explanation of his intent does not minimize the seriousness of his action. As a police officer of some years standing he should have known better. If his action was not motivated by criminal intent or by psychological or emotional factors, then - to put the most generous interpretation on it - what he did was, at best, naïve and, at worst, showing extraordinary poor judgement.

58. It remains, then, to consider whether the penalty of dismissal for the Appellant's discreditable conduct was appropriate.

59. We recognize that the Hearing Officer, as the trier of fact, had the advantage over us. In rendering his decision, the Hearing Officer states:

When pursuing the evidence as presented, there are simply too many contradictions to overlook. The basis for the defence position is that Provincial Constable Aujla did not have the intent to steal.

When looking at the evidence presented by Mr. Frederick and Constable Hulzebosch, the picture is, to me, quite clear. Provincial Constable Aujla did, as admitted, remove these several items from the SuperCentre store, without paying for them. Contrary to his testimony and his explanations to Mr. Frederick, Constable Hulzebosch, and Mr. Travis, I am convinced that Provincial Constable Aujla intended to steal these items from the SuperCentre store. The presence of the empty shopping bags, his concealment of the items within the shopping bags, his leaving the store premises with unpaid

for merchandise, given his admitted experience with shoplifters during his tenure with Peel Regional Police, and his inability to locate the mysterious wallet and funds back at his car, all point to one thing; Provincial Constable Aujla had no intention to pay for these items. He had every intention to commit the criminal offence of theft.

In cases cited relevant to penalty in this matter two issues are relevant. Number one, evidence of medical or psychological difficulties may help mitigate the facts. Number two, evidence of significant unblemished career and/or evidence of a good reputation may assist in defining the acts as abhorrent.

In the case before me there is no record of long service. The career profile, although not overly negative, is not unblemished. Furthermore, there is no evidence before me which would indicate that Provincial Constable Aujla was under any significant stress, or similar psychological pressures. Taking all of the evidence into consideration, and being guided somewhat by previous cases as cited by prosecution and defence, the penalty of this tribunal is the immediate dismissal of Provincial Constable Aujla from the employ of the Ontario Provincial Police.6

60. Two factors appear to have been uppermost in the Hearing Officer's review of evidence. First, he was convinced that the Appellant did intend to steal. Second, the Hearing Officer concluded that shoplifting, especially by a police officer, was a "criminal offence" of the utmost seriousness.

61. He found the Appellant to be completely lacking in credibility and, further, falling short when measured against the two tests of mitigation that the Hearing Officer used. Finally, the Hearing Officer could find nothing positive in the Appellant's six year career with the O.P.P., although - as the use of multiple negatives in his statement show - he could find nothing particularly negative either.

62. It is on this basis that the Hearing Officer concluded that dismissal was the appropriate penalty. He was "guided somewhat" by precedent.

63. We agree with the Hearing Officer that the Appellant's action constituted a serious misconduct deserving of a severe penalty, whether it was intended or not.

64. On questions of intent and credibility, we would be loathe to second-guess the Hearing Officer, given that he had the benefit of hearing and observing the witnesses at first hand. On these matters it is wise for an appellate body to be guided by the assessment of the trier of fact, even though it may not be bound by such assessment.

65. We note, however, that the Hearing Officer used a rather narrow set of criteria to consider mitigation and, eventually, to determine penalty.

66. The fact is that the Appellant did plead guilty to the charge of discreditable conduct at the very beginning of the trial and that this was a first offence of a serious nature. On balance, he would appear to have had a relatively unblemished - though ordinary - work history with the O.P.P. The Hearing Officer does not take into account the likelihood of reformation or rehabilitation.

67. We are disturbed by the Hearing Officer's characterization of the misconduct as "criminal offence". Again, the fact is that there was no criminal trial or conviction. This was a disciplinary hearing. And, as counsel for the Respondent rightly points out, the two proceedings are different from one another. The characterization appears to indicate a certain colouring of the Hearing Officer's assessment of the offence.

68. Further, the reasons do not take into consideration the third factor noted in this Commission's decision in Williams, namely the damage to the reputation of the police force that would occur if the officer remained on the force. The charge against the Appellant is not only that his conduct was discreditable or disorderly, but also that it is likely to bring discredit upon the reputation of the Ontario Provincial Police. This part of the charge is not addressed

69. It is our conclusion that the Hearing Officer fails to take into account all factors in his decision on penalty and to provide sufficient reason for levelling the maximum penalty.

70. What the Appellant did was a serious offence deserving of censure. A police service must be seen to deal with such conduct by one of its members with clear disapproval.

71. That disapproval, however, must be balanced by a consideration of factors such a the employee's past history, recognition of the wrongful nature of the conduct, and likelihood of reform or rehabilitation. This the Hearing Officer failed to do.

72. Taking into account these factors and the character references, we believe that as severe penalty short of dismissal is more appropriate.

73. We, therefore, uphold the Appellant's conviction on the charge of discreditable conduct, and order that the penalty of dismissal be substituted with a reduction to the rank of Officer Fourth Class for a period of one year. Thereafter, Provincial Constable Aujla's progress through the ranks will be determined according to usual policies and procedures of the Ontario Provincial Police.

DATED THIS 12TH DAY OF MAY, 1997

Raymond G. Leclair Alok Mulkherjee Member, OCCPS Member, OCCPS