ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
PROVINCIAL CONSTABLE G.T. OZON
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: Raymond J. Silenzi, Member Bob Saracino, Member
Hearing Date: September 29, 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:
Raymond J. Silenzi, Member Bob Saracino, Member
Appearances:
P. Clinton Nolman, Counsel for the Appellant Inspector Susan Dunn, Counsel for the Respondent
Hearing Date: September 29, 1997
This is an appeal with respect to the penalty imposed on Constable G.T. Ozon by Inspector Gregory Connolley (the “Hearing Officer”) on September 27, 1996.
Provincial Constable Ozon pleaded guilty to the charge of Discreditable Conduct and was demoted to Fourth Class Constable for one year and thereafter may qualify for progression through the third, second and first class levels of the constable rank in the same manner as any other member of the Ontario Provincial Police.
Particulars:
On October 18, 1995, Constable Ozon was charged with Discreditable Conduct contrary to subsection 1(a)(i) of the Code of Conduct contained in Regulation 927 of the Revised Regulations of Ontario 1990, as amended (the “Code”).
Notice of Hearing was served on Constable Ozon on October 30, 1995. It contained particulars of the allegations against him. It read:
On or about November 14 to 19, 1991 a fire destroyed a shed located on your property in Michipicoten. You reported the value of the damage, but submitted improper receipts, which resulted in your being overcompensated.
Background:
The parties agreed to a statement of facts. The following is a brief summary of the pertinent details.
Constable Ozon was sworn in on November 3, 1975. At the time of the incident he had 16 years of service.
On November 14, 1991, a fire destroyed a wooden shed located on a property, which was jointly owned by Constable Ozon and another person in the Michipicoten Township area known as the Mission.
The shed was insured by Canada Life Casualty Insurance Company, and the insurance policy which covered the shed provided indemnification of the items estimated actual value (depreciated value), unless a specific item was replaced by the owner in which case the replacement cost would be paid (which claim was required to be supported by receipts).
Constable Ozon contacted his insurance adjuster, and at the adjuster’s request, prepared and forwarded a Claim Form on November 20, 1991 listing eighty-six items.
The adjuster estimated the items actual cost value at $4,580.53 and a cheque was issued in that amount to Constable Ozon as the minimum payout. Further payouts would then be made for the amount of the depreciation on a given item (i.e. the difference between the actual replacement cost and the appraised value which had now been paid), if Constable Ozon purchased a replacement and forwarded a receipt in proof thereof. The terms of the policy were clearly explained to Constable Ozon.
Constable Ozon submitted receipts for various items and was reimbursed with a cheque for $2,526.47, which he cashed on January 28, 1992.
Constable Ozon forwarded original receipts from a lumber company in Wawa. Based on those receipts, two further cheques were issued by the insurer for a total additional payment of $463.56.
Constable Ozon did not actually purchase any of the items referred to in the receipts (with the exception of three Canadian Tire receipts), and as a result, the insurer paid $2,990.03 more than was actually owing under the policy.
The majority of the store owners issued receipts for "insurance purposes" when asked, despite there being no actual purchases. The lumber company receipt was issued on Constable Ozon's promise to return to purchase the items listed at a later date (which he never did). Another receipt was actually just a quote for the materials listed, distinguishable from a receipt by the absence of any invoice number.
In October of 1994, the joint owner of the property brought these matters to the attention of the O.P.P.
As a result of the ensuing investigation, Constable Ozon was found guilty of fraud under $5,000.00 contrary to section 380(1) of the Criminal Code of Canada, by His Honour Judge W.W. Cohen and was granted an absolute discharge.
The insurance company accepted restitution from Constable Ozon of $1,800.00 in settlement of the matter, which has been paid in full by Constable Ozon.
Appellant's Arguments:
In his submission on behalf of the appellant, Mr. Nolman requests that we reduce the penalty imposed by the Hearing Officer to demotion to Fourth Class Constable for one year and then returned to First Class Constable. In his submission to us he asserts:
The penalty is harsh and excessive and inconsistent with the principle of progressive discipline.
The appellant pleaded guilty to the charge in criminal court and was given an absolute discharge.
The appellant agreed to a statement of facts.
The appellant made restitution of $1,800.00. A settlement agreed to by the parties.
The appellant is experiencing extreme financial difficulty and the penalty imposed would result in a loss of $53,700.00.
Respondent's Argument:
In her submission on behalf of the respondent, Inspector Dunn asks that the appeal be dismissed on the basis that the penalty imposed is fair and appropriate. She submits the following:
That criminal conduct (fraud under $5,000.00) is serious misconduct that should be considered at the high end of the penalty scale as it strikes at the heart of policing, specifically the public trust.
That Constable Ozon had the time and opportunity to report this crime but failed to do so.
That the public is aware of the circumstances of Constable Ozon's misconduct and that such misconduct would cause harm to the reputation of the Ontario Provincial Police.
That Constable Ozon acknowledged the seriousness of his actions and clearly instructed his counsel that a penalty of a reduction in rank to Fourth Class Constable would be an appropriate penalty for his misconduct.
That Constable Ozon experienced depression; however, he described his moods as generally stable and denied depression.
That the criminal conduct of Constable Ozon is clearly unacceptable and serious. Specifically, fraudulent misconduct strikes at the heart of policing and must be strongly deterred.
That the Adjudicator objectively considered all relevant factors and determined the appropriate penalty in this case.
The Decision:
The appellant has pleaded guilty to the charge of Discreditable Conduct and therefore the only decision to be decided is the quantum of penalty.
The Hearing Officer assessed a penalty of demotion to Fourth Class Constable for a period of twelve months. After the completion of the twelve month period, Constable Ozon may qualify for progression through the third, second and first class levels of the constable rank, in the same manner as any other member of the Ontario Provincial Police.
The appellant has requested that the penalty be modified and after twelve months at Fourth Class Constable, he be returned to First Class Constable.
Counsel for the appellant has asserted that the penalty imposed is harsh and excessive and inconsistent with the principle of progressive discipline.
In Williams and OPP (December 4, 1995, OCCPS), and Gulliver and Brantford Police Service (July 15, 1997, OCCPS), the Commission identified three key elements to be taken into account when assessing penalty. 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.
The facts in this case are clear.
Constable Ozon submitted a number of improper receipts to his insurance company for a fire that happened on his property in November, 1991. He obtained receipts from merchants in the community for non-existing items supposedly destroyed by the fire. This resulted in him being overcompensated $2,990.03.
This was deliberate and planned by Constable Ozon and carried out over a period of three months. He compounded his overt actions by involving members of the community in defrauding the insurance company.
He was convicted in Criminal Court and found guilty of fraud under $5,000.00 and granted an absolute discharge.
Constable Ozon is an experienced police officer who is guilty of serious misconduct that has undermined the public trust and reputation of the Ontario Provincial Police.
In our view, the Hearing Officer properly identified and considered the nature and seriousness of the misconduct in question. As well, he appears to have taken into account the other relevant factors identified in Williams.
In particular, the Hearing Officer stated:
"There is evidence that Constable Ozon accepts that he has done something wrong. He has plead guilty at this hearing. He has instructed his counsel to suggest a penalty of demotion to Fourth Class Constable for his actions.
Two senior members of the Ontario Provincial Police, both staff sergeants and detachment commanders, one Constable Ozon's previous Detachment Commander, and the other his current Detachment Commander, both testified as to Constable Ozon's continuing performance improvement since 1994.
Constable Ozon's career profile, entered as evidence, indicates no performance problems and the last performance evaluation in 1994 states that he meets all requirements.
His current Detachment Commander puts Constable Ozon in the top third of 18 members for performance and is under consideration for selection as a coach officer for a future recruit ...
His acknowledgement of the misconduct, his career profile, Dr. Travis’ assessment, the testimony of his Detachment Commanders, and his satisfactory work performance over a period of time are indicators of his potential continuous usefulness to the Ontario Provincial Police.
The issues of specific and general deterrence and the damage or likely damage to the reputation of the Ontario Provincial Police by the actions of Constable Ozon have to be addressed. The penalty must demonstrate the seriousness in which this tribunal holds his misconduct, not only to other police officers, but to the community that the Ontario Provincial Police serves as well."
- In this matter, we accept the test set out in the previous Commission decision in Allen. As the Commission stated in that decision at page 7,
"The Commission must be slow to set aside the conclusions a Hearing Officer has reached after a lengthy process of hearing and analyzing evidence. Such conclusions should be altered only when there is a manifest error in principle …"
In examining the disposition imposed by the Hearing Officer, Inspector Connelley, we cannot find that there is a manifest error in principle or that any of the relevant factors in assessing a penalty were ignored.
While at the high end, we cannot conclude that the penalty imposed is outside of the acceptable range and accordingly, the appeal is denied.
DATE THIS 6th DAY OF MARCH 1998.
Raymond. J. Silenzi Bob Saracino Member, OCCPS Member, OCCPS