ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE DAVID GUENETTE Appellant
-and-
OTTAWA-CARLETON REGIONAL POLICE SERVICE Respondent
DECISION
Panel: Karlene Hussey, Member Sam Cancilla, Member
Hearing Date: Tuesday, July 21, 1998 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 Hussey, Member Sam Cancilla, Member
Appearances: Allan R. O’Brien, Counsel for the Appellant Timothy D. Ray, Counsel for the Respondent
Hearing Date: Tuesday, July 21, 1998
- Constable David Guenette appeals the penalty of dismissal imposed by Superintendent Robert Fitches (the “Hearing Officer”) following a finding of discreditable conduct under Section 1(a)(1) of the Code of Conduct contained in Regulation 927 of R.R.O. 1990 as amended (the “Code”). Constable Guenette also makes application for leave to adduce further evidence.
Facts:
The events giving rise to these proceedings occurred on March 30 1995, at approximately 11:30 p.m. While on duty and in uniform, Constable Guenette entered the lobby of a Royal Bank branch in Ottawa. There was one other person, M.O., present at that time using one of the two automated teller machines located in the lobby.
After completing his transaction, M.O. exited the lobby and inadvertently left his bank card in the automated teller machine. This meant that the machine was still in an activated position. Constable Guenette withdrew $200.00 in cash from M.O.’s account. He then left taking the money with him.
Constable Guenette was subsequently charged with the criminal offence of theft. He agreed to admit responsibility for the offence, participate in a diversion program, make full restitution and perform community service. By so doing, Constable Guenette avoided a criminal record.
The Disciplinary Hearing:
Constable Guenette was charged under the Code with the disciplinary offence of discreditable conduct. The specific allegation was that he withdrew money from M.O.’s account without permission. He was advised that the penalty of demotion or dismissal could be imposed if he were found guilty of the charges. He pled not guilty.
At the disciplinary hearing evidence from a surveillance videotape, electronic journals of bank machine transactions and the record of M.O.’s account were presented. Expert witnesses were called and they provided evidence on video surveillance cameras and their synchronization with the automated machines. M.O. was also called as a witness.
Constable Guenette offered no explanation for his actions nor did he present evidence on the disposition of the criminal case and the fact that he participated in the diversion program. Counsel for the Service raised questions relating to these issues and Constable Guenette’s lawyer objected. Counsel for the Service argued that Constable Guenette took no responsibility for his actions.
On November 21, 1997 the Hearing Officer found Constable Guenette guilty of discreditable conduct.
On December 19, 1997 submissions were made regarding penalty. Constable Guenette’s record revealed that he had been a member of the Ottawa-Carleton Regional Police Service (the “Service”) for sixteen years. During that time his employment was without incident with the exception of counseling for driving incidents. There was no evidence of good character produced on Constable Guenette’s behalf.
In his decision, the Hearing Officer found that Constable Guenette’s action had so diminished his usefulness as a police officer that he could no longer remain on the force. He also found that there was no evidence of mitigating circumstances and no evidence presented that either the community or his peers on the Service were willing to overlook Constable Guenette’s actions and support him being retained in his position.
The Hearing Officer referred to cases dealing with similar disciplinary infractions and noted that in those cases there was evidence of community support, good character and mitigating circumstances which was not present in this situation. He concluded that given the lack of this type of evidence his only choice was to impose a penalty of resignation within seven days and failing that, dismissal.
The Appeal:
The Appeal raises two issues.
First, counsel for the Appellant brings a motion to introduce new and additional evidence which he suggests is critical to the matter of penalty. Second, he argues that the disciplinary penalty imposed is too severe.
Preliminary Motion:
Counsel for the Appellant requested permission, pursuant to section 70(5) of the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “Act”) to submit new evidence which had not been introduced at the disciplinary hearing.
This new evidence included 14 letters of support from members of the community, 22 letters of support from police officers and a letter dated March 6,1998 from the co-ordinator of the adult pre-charge diversion program of the Salvation Army Correctional Resource Centre.
In support of this application, the Appellant offered two affidavits. The first was that of Dr. Kunjukrishman, Associate Professor of Psychiatry and Director of Education at the University of Ottawa, Faculty of Medicine and Assistant Director of the Forensic Program of the Royal Ottawa Hospital. The second was that of Michael Edelson who acted as lawyer for Constable Guenette at both the criminal proceedings and disciplinary hearing.
Counsel for the Appellant argued that the new evidence was relevant and crucial given the seriousness of the charge and the subsequent penalty. He argued that the affidavit of Dr. Kunjukrishman contained compelling medical reasons to allow the introduction into evidence of the letters of support for Constable Guenette. Dr. Kunjukrishman stated:
In my opinion, Constable Guenette has been suffering from symptoms of moderate depression and anxiety for the last 2 ½ years related to legal problems and marital problems. As a result of these symptoms, he has experienced lack of motivation and a sense of shame and embarrassment and hypersensitivity about social contact. This most probably prompted certain social avoidance and unconscious denial leading to his reluctance to obtain character references and witnesses prior to his sentencing in November 1997.
Counsel for the Appellant also argued that the Affidavit of Michael Edelson supported the findings of Dr. Kunjukrishman that Constable Guenette exhibited signs of depression. Mr. Edelson observed that Constable Guenette was distracted and unable to concentrate on even simple tasks assigned to him to ensure that he made full answer and defence. Despite the fact that Constable Guenette was asked repeatedly, he failed to produce a list of potential witnesses from in and outside of the Service that would attest to his integrity and reputation as both a police officer and citizen.
Mr. Edelson also stated that Constable Guenette was not in a state of mind to properly instruct counsel. Mr. Edelson referred to a conversation he had with John Peterson, the President of the Ottawa-Carleton Regional Police Association, who attended the hearing.
Based on his observations Mr. Edelson suggested to Constable Guenette’s counsel in the appeal proceedings that Constable Guenette should be fully assessed by a forensic psychiatrist to determine whether his observations as to Constable Guenette’s mental status were valid.
Attached to Mr. Edelson’s affidavit was the psychiatric report by Dr. Kunjukrishman as well as an unsolicited letter of commendation by Mr. and Mrs. Redmond who read about the disciplinary hearing. The Redmonds forwarded their letter with the hope that it would be helpful and Mr. Edelson, with the permission of Counsel for the Service submitted it to the Hearing Officer before the penalty hearing.
Mr. Edelson also stated in his affidavit that following the Hearing Officer’s decision, he received many unsolicited telephone calls from individuals from both the community and Service. He observed that it was clear that these individuals would have offered considerable evidence in support of Constable Guenette in the original proceeding had they been approached and this would have greatly assisted him.
Included in the 22 letters from the policing community were two letters from police officers who spoke of Constable Guenette’s distracted and unfocussed state during the hearing. One of these letters was from John Peterson stating that he spoke to Mr. Edelson during the trial about this concern. The other letter was from Constable Randy Smale stating that he spoke to John Peterson about this matter at the hearing as well.
In addition to the affidavits and letters, counsel for the Appellant also sought to admit a letter from the Salvation Army Correctional Resource Centre with details of the community work Constable Guenette performed as part of his participation in the diversion program.
The Appellant relied on the following cases in support of his motion: Reilly and Brockville Police Service (May 12, 1997, OCCPS), Burgess and St. Thomas Police Service (1989), 2 O.P.R. 822 (OPC) and Aujla and Ontario Provincial Police (May 12,1997, OCCPS).
Counsel for the Respondent asserted that the character references, although relevant, should be carefully scrutinized in light of the absence of viva voce evidence and cross-examination. Mr. Ray opposed the introduction of the letter from the Salvation Army, suggesting that there was no foundation for its admission. He argued that there was no attempt to introduce that evidence at the disciplinary hearing and there was no explanation as to why it was not introduced at that time.
Decision on Motion:
- The Commission derives its authority to admit new evidence in an appeal from section 70(5) of the Act. The section provides as follows:
70(5) A hearing held under this section shall be an appeal on the record, but the Commission shall receive new and additional evidence as it considers just.
The Act does not set out the elements to be considered in making the determination of what would be “just” in the circumstances.
In previous disciplinary appeals the Commission has been guided by the four-part test set out in R. v Palmer (1979), 1979 CanLII 8 (SCC), 106 D.L.R. 212 (S.C.C.). It is relevant here. The test speaks to factors of due diligence, relevance, credibility and the potential to alter the original result.
In his decision on penalty, the Hearing Officer stated:
For the support of colleagues and the community to mitigate the penalty in this or any other case, such support must be clearly demonstrated to me. With the exception of the Redmond letter, no such support has been shown to exist, either in the community or in the Police Service.
It is clear from these comments that the Hearing Officer placed great weight on the absence of evidence in support of Constable Guenette’s good character.
It appears that the absence of evidence was significant and the admission of such evidence at this time has the clear potential to alter the original result. This fact, along with the severity of the penalty and the supporting medical evidence, is sufficient to satisfy the Commission that in the circumstances it would be just to admit the support letters from the police officers and members of the community.
We do not allow the introduction of the letter from the Salvation Army. There was no reason given by the Appellant why this evidence was not offered at the disciplinary hearing. We have concluded that the information was available and with due diligence could have been presented for the Hearing Officer’s consideration.
Appellant’s Position on Penalty:
Mr. O’Brien, on behalf of the Appellant, recognized that police officers should not steal and that such conduct warranted discipline. However, he suggested that a single unexplained act of theft that was out of character should not result in dismissal. This act in question, he submitted, was at the lower end of the spectrum of wrongdoing and did not destroy the fabric of policing. In support of this position he cited Sack and Ontario Provincial Police (1987), 2 O.P.R. 784 (OPC) and Reilly and Brockville Police Service.
Mr. O’Brien further argued that the penalty of dismissal was out of proportion with the past management practices of the Service. He referred to a case in 1992 involving a sergeant who was charged with theft, entered a diversion program and avoided a criminal record. The discipline imposed by the Service in that case was three days forfeiture of pay.
Counsel submitted that in assessing penalty, the Commission should apply the same principles it has considered in other analogous cases. He referred to Reilly and Brockville Police Service where the Commission stated at page 7:
When imposing penalty it is 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.”
Mr. O’Brien also cited a number of disciplinary appeal decisions concerning officers who stole. They included Sack and Ontario Provincial Police (termination reduced to 20 days), Reilly and Brockville Police Service (termination replaced by 20 days), Spizziri and Ontario Provincial Police (1988), 2 O.P.R. 799 (OPC) (termination replaced with a reduction of rank for 6 months), McCoy and Ontario Provincial Police (1989) 2 O.P.R. 832 (OPC) (20 day penalty affirmed) and Aujla and Ontario Provincial Police (termination replaced with a reduction in rank).
Counsel for the Appellant asserted that Constable Guenette’s 16 years of employment with the Service were relatively unblemished and this was a mitigating factor to be taken into account in assessing appropriate penalty. Further, he suggested that the letters of support from the community indicate that the reputation of the police force would not be harmed if Constable Guenette were retained. He notes that these individuals all express trust in Constable Guenette’s ability to continue to fully perform his duties. He also points out that Constable Guenette’s fellow officers have expressed their trust in him and willingness to continue to work with him.
Respondent’s Position on Penalty:
Counsel for the Respondent argued that the Hearing Officer had addressed and weighed the relevant factors and principles. He stated that considerable weight must be given to the Hearing Officer’s view of Constable Guenette’s misconduct and the absence of extraordinary circumstances. He suggested that unless there was fundamental error, the Commission should not interfere with the Hearing Officer’s decision.
Mr. Ray further submitted that the “usefulness test” to be used in determining whether dismissal is the appropriate penalty consists of three factors. They include:
- the nature and seriousness of the misconduct
- the ability to reform the officer
- the damage to the reputation of the police force that would occur should the officer remain on the force.
Mr Ray argued that Constable Guenette’s failure to take responsibility for his action should be viewed as an aggravating factor. In support of this assertion he cited Allen and Ontario Provincial Police (1975), 1 O.P.R. 204 (OPC), Belisle and Ontario Provincial Police (1985), 2 O.P.R. 634 (OPC), Spizziri and Ontario Provincial Police, Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) and Reilly and Brockville Police Service.
Mr. Ray suggested that the facts of Constable Guenette’s case are distinguishable from those cited by the Appellant. He argued that in this situation there are no mitigating medical reasons as in Reilly and Spizziri. Further, he noted that in the 1992 case involving a sergeant, the officer took responsibility for his actions by admitting to the theft and presented medical evidence of depression prior to the incident.
Mr. Ray referred the Commission’s decision in Spizziri, which speaks to the seriousness of theft. At page 801, the Commission stated:
Under ordinary circumstances, the appropriate penalty to be imposed under the Police Services Act upon a police officer who commits theft is dismissal. Considering Constable Spizziri’s length of service, unblemished record, and mental turmoil at the time of the events, we find dismissal too severe a penalty. Having said that, we wish to make it very plain that this decision is restricted and narrowed to the particular facts of this case.
Decision:
The finding of guilt is not at issue in this appeal. The only consideration is the severity of penalty.
The dismissal of an officer is the most serious punishment imposed in disciplinary proceedings. This penalty is reserved for those cases in which conduct is so disreputable that the police officer is no longer of any use to the service or it would cause irreparable damage should the officer remain on the force. It is in this context that we must apply the “usefulness” test in determining whether dismissal is the appropriate penalty for Constable Guenette.
The first consideration is the nature and seriousness of the offence. There is no question that the offence of theft is grave and does damage to the reputation of any police force. The Commission has consistently held that theft is serious and absent other considerations, sufficient to warrant dismissal.
The second element to be considered is the ability to reform the officer. Constable Guenette’s employment record reveals that this is his first disciplinary offence in 16 years of service. The Hearing Officer only had the benefit of one unsolicited letter from the Redmonds. He considered that letter insufficient to “clearly demonstrate” support which he determined to be an important factor.
The additional evidence adduced at this appeal has revealed strong support for Constable Guenette from both inside and outside the Service. The character references indicate that Constable Guenette was well regarded by his peers and especially by the people with whom he came in contact on his tours of duty in the small community of Westboro. The letters from people in that area indicated that, although they do not condone his actions, they considered his presence in that community to be very valuable, and certainly hoped to see him return to that area as the community police officer.
Counsel for the Respondent has asked that no great weight be given to these letters, as the writers were not subject to cross-examination. The Commission is not bound by the strict rules of evidence developed for use by the court system. Hearsay is prima facie admissible in these proceedings, and appropriate weight may be assigned to these letters providing they are reasonably capable of belief.
Many of these letters came from members of the community who had contact with Constable Guenette in the course of his duties. Others were written by owners and operators of businesses, victims of crime and domestic disputes, community development personnel, neighbours and sports teammates.
We do not find that the letters written were motivated by the possibility of personal gain. These character references were not tendered by family members or close friends but from a variety of sources. Further, while recognizing the seriousness of the Appellant’s conduct, the letters offered unmitigated support without platitudes and they possessed an air of veracity. We find that the letters are capable of belief.
Given his disciplinary history, the singular nature of this event and the character references provided, we find it unlikely that there will be a repetition of a similar offence by Constable Guenette. This is consistent with the findings of the Hearing Officer that there was no need to give undue considerations to either general or specific deterrence.
The third element to be considered is the damage to the reputation of the police force that would occur should the officer remain. Undoubtedly, a police officer who steals damages the reputation of any service. Police officers are held to a higher standard than the average citizen and trustworthiness is a basic and essential requirement of this profession.
However, we do not consider that the reputation of the Ottawa-Carleton Regional Police Service would be irretrievably damaged were Constable Guenette to remain on the force. It is apparent that members of the Service are willing to continue to work with him and citizens whom he has policed are willing to have him return to their community with full knowledge of the offence he committed.
We do not believe that this is because his offence is not considered serious but rather because this act was seen to be an aberration. The words of Detective Wayne Alpert of the Windsor Police Service and a Detective with the Financial Crime Unit, who has known the Appellant for 18 ½ years, expressed this very well. He wrote:
Even now, as I write this letter, I am still in a state of shock. If Dave was a person with a propensity for dishonesty, I could easily have accepted what happened. However, I know Dave as a genuine conscientious individual. This whole matter has been difficult for me to reason.
I cannot explain what possessed Dave to commit this unlawful act. There is no rational explanation. The juvenile nature of the circumstances combined with the meagre financial gain indicates that this was not a calculated action. Notwithstanding, Dave made a foolish and stupid mistake. His action has hurt himself and those who love him. He will shoulder these consequences for the rest of his life. But it is with great certitude that I emphasize the following -this occurrence was totally out of character for Dave Guenette. It was an isolated episode, one which will never be repeated in his lifetime.
In arriving at a fair decision on penalty, as well as the findings under the “usefulness test”, we must also consider the disposition of previous analogous cases. Both the Appellant and the Respondent have argued that the Commission must be consistent in assessing a penalty for this case similar to those assessed in previous cases with similar facts.
We agree that “consistency in the disciplinary process is often the earmark of fairness”. However, each case will have its own unique elements. There have been a number of situations where the Commission has not upheld penalties of dismissal in cases involving minor theft.
In Reilly, the officer who was found guilty of shoplifting items valued at $6.10 was dismissed. The Commission reversed the dismissal on grounds of a recognition and acceptance of the transgressions and the extensive medical evidence of depression, treatment, remission and positive prognosis. Similarly, in Spizziri the Commission reversed the dismissal of a constable with 17 years of unblemished service who shoplifted items valued at $70.00. There was psychiatric evidence to the effect that the officer was under severe stress at the time.
There is no similar mitigating factor in Constable Guenette’s case and so we are of the view that, although useful for guidance with respect to the seriousness of the conduct, these cases are less so for the purposes of assessing penalty in this matter.
The Respondent cited Belisle and Allen as examples of cases dealing with the offence of theft in which officers were dismissed.
In Belisle, the officer was convicted of theft for taking a gun seized by the police. In response to inquiries made by the gun owner, Constable Belisle attempted to cover up his actions by implying the gun had been returned to a member of the public with a name similar to the owners. This Constable was also linked to another incident of destruction of official documents pertaining to the disposition of another seized gun.
In Allen the police officer wwas found guilty of discreditable conduct for break and enter of a private residence and theft of four forty ounce bottles of liquor. The officer was consuming up to five cases of twenty-four pints each of beer per week and this interfered with his duties. There was no serious attempt on his part to deal with his problem although it had been ongoing for three years before the occurrence. The Commission found that it would be dangerous to the public to retain the services of Constable Allen.
It is clear that Belisle and Allen can be distinguished from this case on both the facts and the degree of seriousness. We therefore do not think that they are helpful in determining penalty. More on point with the present case are the Commission’s decisions in Sack and Ozon and Ontario Provincial Police (March 6, 1998,OCCPS).
In Sack, the officer was dismissed for changing a price sticker on an item, which reduced the price by $130. On appeal, his good reputation in the community, his unblemished record and his length of service were found to be mitigating factors. The Commission concluded at page 784.3 that “The single act is unexplained and out of character. This officer should not be dismissed for a singular, stupid act of human frailty.” A penalty of 20 days forfeiture of pay was substituted.
In Ozon, the officer submitted improper receipts to an insurance company to obtain compensation for a building on his property destroyed by fire. There were no purchases for some of the receipts issued which resulted in the insurer paying Constable Ozon $2990.03 more than was actually owing under the policy. The Commission upheld the decision of demotion from first class to fourth class constable.
We find that even in light of the commendations, Constable Guenette’s conduct was highly disreputable and warrants significant punishment. Considering his ability to reform and the fact that the damage to the Service, although significant, is not irreparable and considering the previous decisions by the Commission dealing with similar offences, we will allow the appeal and vary the penalty to a demotion to third class constable.
This demotion shall be for a minimum period of one year. Any subsequent promotions through the constable rank shall follow the normal process.
DATED THIS 18TH DAY OF DECEMBER, 1998.
Karlene J. Hussey Member, OCCPS
Sam Cancilla Member, OCCPS