Constable Darlene Reilly v. Brockville Police Service, 1997 CanLII 22045

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE DARLENE REILLY Appellant

-and-

BROCKVILLE POLICE SERVICE Respondent

DECISION

Panel: Norman D. Boxall, Counsel for the Appellant Timothy D. Ray, Counsel for the Respondent

Hearing Date: March 17, 1997

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

Presiding Members: Murray W. Chitra. Chair Sam Cancilla, Member

Appearances: Norman D. Boxall, Counsel for the Appellant Timothy D. Ray, Counsel for the Respondent

Hearing Date: Monday, March 17, 1997

1This is an appeal from a disciplinary penalty imposed following a finding of discreditable conduct made against Constable Darlene Reilly.

Background:

2Darlene Reilly started employment with the Brockville Police Service (the "Service") on June 18, 1990 as a civilian dispatcher. After working in this position for a few years, she applied for a job as a uniformed police officer. She was successful, and on January 3, 1995 was sworn into this new role.

3The events which gave rise to this proceeding occurred 10 days after Constable Reilly completed her probationary period as a police officer.

4On the afternoon of Wednesday, April 10, 1996, while off duty, she was shopping at the Wal-Mart in Brockville. She was observed by store security staff placing three items in her purse. She left the store without paying.

5Constable Reilly was stopped in the parking lot and returned to the store where she was placed under arrest for shoplifting. The unpaid for items in her possession were a jar of jam, granola bars and fruit candies. Their total value was $6.10.

6While still at the store, Constable Reilly telephoned Sergeant John Morin at the Brockville Police Station to tell him of her situation. When he asked why she had taken the items she replied that it was near payday, that she did not have the money, and that the food was for her children. She acknowledged that this was not a proper excuse and that she did not want to lose her job. The following day she was suspended from duty with pay.

7A few months later Constable Reilly was permitted to enter a court diversion program. The result of this was that the theft charges were not proceeded with and no criminal conviction was entered against her.

8On June 3, 1996 Constable Reilly saw Dr. John Bradford, Director of Forensic Service of the Faculty of Medicine of the University of Ottawa for both evaluation and treatment.

9On June 12, 1996 Constable Reilly was served with notice that a disciplinary hearing would be held before Acting Deputy Chief Neil J. Sweeney (the "Hearing Officer") on September 19, 1996. The specific allegation against Constable Reilly was that she did:

... engage in discreditable conduct by acting in a disorderly manner or in a manner prejudicial to discipline, or likely to bring discredit upon the reputation of the Police Force, namely, on or about the 10th day of April, 1996, at the City of Brockville you did steal foodstuff, the property of Wal-Mart Canada Inc., contrary to section 1(a) of the Code of Conduct described in Regulation 927, Revised Regulations of Ontario, 1990.

10Constable Reilly was also advised in writing that were she to be convicted of this allegation that demotion or dismissal could be imposed as a penalty.

The Hearing:

11Constable Reilly appeared before the Hearing Officer on the appointed day.

12She pled guilty to the charge. An agreed statement of facts was read onto the record. A total of seven witnesses were called by Constable Reilly's lawyer. Six were either members of the Service, or former members of the Service who spoke to Constable Reilly's personality, work habits, family life and value as both a dispatcher and police officer.

13The seventh witness was Dr. Bradford. He testified that it was his opinion that in April of 1996 Constable Reilly was suffering from major depression. He concluded that the shoplifting was both a single event and symptomatic of this condition. He also concluded that Constable Reilly's disorder was treatable. He stated that she was under his care and that in his view her prognosis was excellent.

14In addition to the above, various reports, letters of reference and Constable Reilly's personnel file were entered as exhibits. Constable Reilly did not testify. No witnesses were called by the Prosecution.

15The Hearing Officer heard final submissions from both parties and received case law as to penalty. He rendered his judgment the same day.

The Hearing Officer's Decision:

16In his judgment, Acting Deputy Chief Sweeney reviewed the testimony of the various witnesses. Some of the observations of Constable Reilly's co-workers were noted and accepted and others discounted because of concerns about objectivity or demeanor. In particular, the testimony of Sergeant Bunt was rejected because of the suggestion that he had once been Constable Reilly's landlord and had a personal friendship with her.

17The Hearing Officer found some difficulty with a statement that Constable Reilly had made to Dr. Bradford during her initial interview to the effect that just prior to entering Wal-Mart she visited the bank machine and had $40 in her possession. He found this to be inconsistent with her earlier remarks to Sergeant John Morin. He concluded that Constable Reilly's shoplifting was a well thought out endeavor consistent with financial difficulties and not simply a mindless act.

18The Hearing Officer noted that psychiatry is an inexact science and that the report of Dr. Bradford did not weigh heavily in his deliberations. He stated that while it might explain conduct, it could not excuse it. He observed that in certain situations such a report might go to mitigate penalty.

19He clearly articulated the view that police officers must be held to a higher standard of conduct than members of the public or even civilian members of the police service. He expressed the opinion that little distinction should be made between conduct which takes place either on or off duty which places the integrity, honesty or character of an officer in doubt.

20The Hearing Officer noted the fact that Constable Reilly had been placed in a court diversion program but concluded that the factors taken into account by the criminal courts in such matters were different from those employed in a disciplinary hearing addressing employment concerns.

21Acting Deputy Chief Sweeney stated that there were four major factors to be taken into account in assessing penalty. They included: the seriousness of the offence, rehabilitation of subject officer, specific deterrence and general deterrence.

22He found the offence to be a serious one going to the "very fabric of policing" which compromised the police officer's effectiveness. He noted the fact that Constable Reilly had pled guilty but suggested that as a practical matter there were few options available to her and thus, her admission of responsibility did not weigh heavily on his decision.

23He also indicated that given the submissions of counsel, his observations of the officer, her record of service, and the results of the criminal charge, he need give little consideration to the issue of rehabilitation.

24He suggested that in matters of breach of public trust the deterrence factor must be paramount if police are to ensure public confidence. He noted that this is particularly the case in a small community with few police officers. He stated that, notwithstanding mitigating factors, some offences by their nature call for a serious penalty (i.e., reduction in rank by several levels). He found this to be such a case. However, he concluded that given the junior rank of Constable Reilly (i.e., 4th class constable) that the only penalty available was separation from the Service.

25The Hearing Officer directed that Constable Reilly resign within seven days or be dismissed.

The Appeal:

26Constable Reilly appealed this decision to the Brockville Police Services Board (the "Board").

27On October 10, 1997 the Board passed a motion pursuant to section 64 of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the "Act"). The effect of this motion was to require the Ontario Civilian Commission on Police Services (the "Commission") to hear Constable Darlene Reilly's appeal from the disciplinary penalty imposed upon her.

28It is this appeal which is the subject of this proceeding.

A) Preliminary Motion

At the commencement of the appeal, counsel for Constable Reilly brought a motion pursuant to section 63(2) of the Act to introduce additional evidence.

The evidence in question was original records from the Canadian Imperial Bank of Commerce showing an Instant Teller Withdrawal in the City of Brockville in the amount of $40 at 1357 hours on April 10, 1997 from a joint account, on which Constable Reilly had privileges.

Mr. Boxall asserts the information is important in that it confirms the account of events at Wal-Mart that Constable Reilly gave to Dr. Bradford and discounts the idea that she had financial difficulties. Mr. Ray, on behalf of the Respondent, argues that this information should not be received as it was both discoverable and available at the time of the original disciplinary hearing. He also suggests that it is of little value.

Section 63(2) of the Act permits the Commission to receive new or additional evidence on appeal "as it considers just". The Act does not set out what factors to take into account. However, the principles set out by Mr. Justice McIntyre of the Supreme Court of Canada in Palmer v. Her Majesty The Queen (1980) 1979 CanLII 8 (SCC), 1 S.C.R. 759 at page 775 provide useful guidance. In brief, these principles relate to due diligence, relevance, credibility, and significance.

Given the relevance placed by the Hearing Officer on the question of what monies were available to Constable Reilly, the seriousness of the penalty and the nature of the evidence tendered (i.e., banking records) we concluded that it would be "just" in the circumstances to grant the motion and admit the evidence.

B) Appellant's Position

The Appellant's arguments fall under two general categories.

The first relate to alleged errors in the finding of fact and assessing the evidence. Mr. Boxall suggested that the Hearing Officer erred in:

• concluding that Sergeant Bunt's friendship with Constable Reilly impaired his objectivity as a witness;
• finding that Constable Reilly had financial difficulties and that the shoplifting was a result of such problems; and
• placing insufficient weight on the evidence of Dr. Bradford.

The second series of concerns related to penalty. Mr. Boxall argues that the penalty imposed:

• was harsh, excessive and inconsistent with those imposed in similar cases;
• failed to take into account certain aspects of Constable Reilly's background; and
• was based on an incorrect assumption that this case warranted a reduction in several levels and because this was not available, dismissal must result.

In support of his argument with respect to penalty, counsel for the Appellant draws our attention to the following cases: Bradley and OPP (1989), 2 O.P.R. 832 (OPC), Sack and OPP (1987), 2 O.P.R. 784 (OPC), McGuire and OPP (1977), 1 O.P.R. 346 (OPC), Long and Colchester Police (1984), 2 O.P.R. 601 (OPC), Robertson and Metropolitan Toronto Police (1985), 2 O.P.R. 639 (OPC), Hrycyschyn and Ontario Provincial Police (1993), 2 O.P.R. 956 (OCCPS), Schofield and Metropolitan Toronto Police (1984), 2 O.P.R. 613 (OPC), Watson and Waterloo Regional Police Service (1989), 2 O.P.R. 814 (OPC), Spizziri and Ontario Provincial Police (1988), 2 O.P.R. 799 (OPC), Norton and OPP (1994), 2 O.P.R. 988 (OCCPS) and Re Trumbley and Fleming v. Metropolitan Toronto Police (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 (Ont. C.A.).

C) Respondent's Position

On behalf of the Respondent, Mr. Ray takes issue with the Appellant's submissions.

He asserts that the decision of the Hearing Officer was both correct and proper. He points out that police officers occupy positions of trust and as such are subject to more rigorous discipline than ordinary citizens.

He suggests that conduct or behaviour which places in doubt the integrity, honesty or moral character of an officer may weaken their effectiveness and may be incompatible with continued office. He argues that this is particularly the case in a small community.

Mr. Ray asserts that Constable Reilly's actions both "tears away at the very fabric of policing" and is incompatible with the continuation of her employment relationship. He suggests that in cases of theft the appropriate penalty should be dismissal unless the officer has a lengthy period of service, there is an unblemished employment record, or there is an explanation for the behaviour in question. He argues that none of these conditions are met in this case.

In support of his arguments, Mr. Ray draws our attention to Bellehumeur v. Discipline Committee of Quebec Bar Ass'n et al. (1983), 1983 CanLII 5299 (QC CS), 34 C.R. (3d) 279 (Que. S.C.), Ville De Granby and Fraternite Des Policies De Granby (1981), 1981 CanLII 4537 (QC LA), 3 L.A.C. (3d) 443 and Re Emergency Health Services Commission and Ambulance Paramedics of British Columbia, C.U.P.E. Local 873 (1987), 1987 CanLII 8822 (BC LA), 28 L.A.C. (3d) 77.

Decision:

The facts in this case are straightforward.

While off-duty, a junior police officer diagnosed as suffering from depression, shoplifted three items worth $6.10. This officer, otherwise, had a good record both as a dispatcher and police officer. During her almost six years with the Service she had gained the respect of her co-workers and immediate superiors.

The officer accepted responsibility for her actions. She was admitted into a court diversion program and does not bear a criminal record. She sought psychiatric assistance. In the meanwhile, she has been suspended from work for over a year.

There is some dispute about certain aspects of the evidence presented at the original disciplinary hearing. From our view of the record, it is clear that the Hearing Officer did not correctly describe the nature of the relationship between Constable Reilly and Sergeant Bunt (i.e., he was never her landlord). As well, it is clear that Constable Reilly told Sergeant Morin and Doctor Bradford slightly different stories about how much money she had in her pocket at the time of the incident.

29To our mind these are concerns without great significance. All of the Service witnesses, including Sergeant Bunt, spoke well of Constable Reilly and her abilities. As well, it is clear that Constable Reilly did shoplift and knew that it was wrong. Whether or not she had the means to pay for the goods at the time or not does not change the nature and quality of her mistake.

30In our view, the essential question in this case is the matter of penalty.

31Police officers, whether on duty or off, should not steal. Such behaviour is discreditable conduct and warrants discipline. Given the nature of their office, police officers must be held to a higher standard of conduct than members of the public. That being said, in each case, the appropriate penalty must be determined in light of a number of considerations.

32In Williams and OPP (December 4, 1995, OCCPS), the Commission identified three key elements to be taken into account. These include 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 remained on the force.

33There are also other factors which can be relevant, either mitigating or aggravating the penalty depending on the particular misconduct in question. They include the officer's:

• employment history and experience,
• recognition of the seriousness of the transgression, and
• handicap or other relevant personal circumstances

34Finally, other considerations could include provocation, the need for deterrence and concerns arising from management's approach to the misconduct in question.

35When imposing penalty it is also important to take into account prior disciplinary cases dealing with similar types of misconduct. The reason for this is simple. As the Commission stated at page 615 in its decision in Schofield and Metropolitan Toronto Police: "Consistency in the disciplinary process is often the earmark of fairness. The penalty must be consistent with the facts, and consistent with similar cases that have been dealt with on earlier occasions."

36In the context of this appeal there are three cases worth noting.

37The first is Sack and OPP. This 1987 decision concerned a constable with 21 years service and no previous disciplinary history. While off duty, he changed the price sticker on a radio cassette recorder at a Canadian Tire store. This reduced the price $130. He was charged with fraud, found guilty and received a conditional discharge.

38He was also charged with discreditable conduct and following a disciplinary hearing was ordered to resign within seven days or be dismissed. On appeal the penalty was reduced to 20 days forfeiture of leave or days off. The mitigating factors were the officer's good reputation in the community and long record of service. The judgment concluded by stating at page 784.3: "This single act is unexplained and totally out of character. This officer should not be dismissed for a singular, stupid act of human frailty."

39The second case is Spizziri and OPP. This 1988 decision concerned a constable with 17 years unblemished service who shoplifted a briefcase and two pairs of woman's pants worth $70 from Woolco. The officer was charged with theft and sentenced to 100 hours community service. There was psychiatric evidence to the effect that the officer was under significant stress at the time of the incident.

40At a subsequent disciplinary hearing for discreditable conduct Constable Spizziri was ordered to resign or be dismissed with seven days. On appeal, this penalty was modified to reduction in one rank for six months given the mitigating factors of length of service, unblemished record and mental turmoil at the time of the events in question. The psychiatric evidence was seen as an explanation of the shoplifting incident and not an excuse.

41The final case is McCoy and OPP. This 1989 decision concerned a constable with 15 years service and no prior disciplinary history. While off duty he shoplifted a cribbage board and set of pegs from a Sears store. The total value of the items was $8.68. He was charged with theft and acquitted at trial.

42Nevertheless, the officer was found guilty of discreditable conduct and ordered to forfeit 20 days vacation leave. This decision was appealed, largely on the basis of psychiatric evidence indicating that the officer was suffering from distress and anxiety which placed him frequently in a state of absent-mindedness. The appeal panel, as in Spizziri, saw this diagnosis as an explanation for the conduct and not a lawful excuse. It went on to conclude that given this information and the officer's unblemished record that the 20 day penalty would stand.

43How do these considerations apply to this case?

44It is evident that Constable Reilly's conduct was inappropriate, unacceptable and discreditable. However, in terms of criminal behaviour, it is at the lower end of the scale. This is particularly the case, given the absence of a conviction. In these circumstances it seems harsh to describe this act as one which tears away at the very fabric of policing.

45Further, notwithstanding the conclusions of the Hearing Officer, there would appear to be clear indications of rehabilitation. Constable Reilly has from the beginning acknowledged responsibility for her actions. There appears to be both acceptance and recognition of the seriousness of the transgression on her part.

46She has sought care for her depression. The treatment continues and according to medical evidence, her condition is in remission. Constable Reilly is described as a motivated and cooperative patient with an excellent prognosis.

47Constable Reilly's actions have damaged the reputation of the Service. That being said, there is clear evidence that her fellow officers are willing and able to continue to work with her and if necessary trust her with their lives. In a police force the size of Brockville's this is not an insignificant consideration.

48Constable Reilly's employment history is a good one. Both as a dispatcher and police officer she has shown initiative, interest in her chosen profession and hard work. Apart from this single incident she has been an asset to the Service for several years.

49Principles of deterrence suggest that a penalty is warranted in this case. Given the nature of the public trust inherent in this officer's employ it is evident that it should be meaningful. However, given the mitigating factors and previous cases dealing with similar acts of misconduct, termination would be excessive.

50Accordingly, we allow the appeal with respect to penalty and vary the disposition to forfeiture of 20 days off.