Provincial Constable G.W. Eschweiler v. Ontario Provincial Police, 1998 CanLII 27141

Background:

2. Greg Eschweiler began his duties as a constable with the Ontario Provincial Police on November 17, 1986.

3. His subsequent employment record has been mixed. Personal evaluation reports indicate generally satisfactory performance, high production and a keen and enthusiastic attitude. However, Constable Eschweiler’s record also includes negative comments on his driving habits, ability to perform under stress, an unwillingness to accept questioning or criticism, number of sick days taken and difficulties with self-control and aggression.

4. Further, in May of 1990 Constable Eschweiler was convicted of driving with ablood-alcohol level of over 0.08 contrary to section 253(b) of the Criminal Codeand his driving privileges were suspended.

5. As a result of this conviction, Constable Eschweiler was also charged under theCode with discreditable conduct. In July of 1990 he was found guilty andassessed a penalty of forfeiture of four days’ pay.

6. On November 3, 1994 Constable Eschweiler was issued a pardon under theCriminal Records Act for the criminal conviction.

7. In January 1997, Constable Eschweiler was convicted of assault as a result of a domestic disturbance. Constable Eschweiler was once again charged under theCode with discreditable conduct. In January of 1997 he was found guilty andassessed a penalty of forfeiture of ten days’ pay.

The Facts:

8. On September 23, 1997, Constable Eschweiler appeared before InspectorGregory Connolley (the “Hearing Officer”) charged for the third time in his career with discreditable conduct. He elected to plead guilty to two counts.

9. The first disciplinary charge arose from further criminal convictions.

10. Essentially, Constable Eschweiler became involved in a verbal and physicalconfrontation with several patrons inside the Mountain View Hotel in Collingwood.He was evicted by the hotel staff and continued this confrontation outside the hotel.

11. Constable Eschweiler ignored the directions of a Collingwood police officer towalk away from the fight. The officer physically restrained him, but he broke awayand continued the verbal and physical confrontation. Constable Eschweiler was observed holding a wallet in his hands saying “here is my badge, I am no longera fucking cop, if you want to go at it let’s fucking go at it.”

12. The situation eventually escalated to the point where the local police had toemploy capsicum spray. It was only with the use of pepper spray and the help ofthe Hotel staff that they were able to stop the brawl. Approximately 50 peoplewitnessed this event. Constable Eschweiler sustained serious injury and had tobe hospitalized.

13. As a result of these events, Constable Eschweiler faced a number of criminal charges. On June 10, of 1997, he was convicted of criminal assault and causinga disturbance. He was fined $500 on the assault conviction and $2,000 for causing a disturbance.

14. In addition, Constable Eschweiler was placed on probation for three years withthe following terms:

15. Keep the peace and be of good behavior

16. Refrain from alcohol save and except wine at dinner

17. Not to enter the limits of Collingwood ( whether on duty or not )

18. It was these convictions which gave rise to the first charge of discreditableconduct contrary to section 1(a)(vii) of the Code.

19. The second charge of discreditable conduct was also based on events which occurred at the Mountain View Hotel. The Appellant was charged with acting in adisorderly manner or in a manner prejudicial to discipline or likely to bringdiscredit upon the reputation of the Ontario Provincial Police, contrary to Section1(a)(i) of the Code.

20. The specific allegation was that the Appellant identified himself as a police officerfor no lawful reason while off duty. He showed his police badge to gain entry tothe Mountain View Hotel. He identified himself as a police officer when he wasprevented by an individual from leaving the bar with an alcoholic beverage. Healso suggested to an individual from whom he took a cigarette withoutpermission, that he would not charge her if he were to pull her over.

21. At the disciplinary hearing an agreed statement of facts was read into the record detailing the events in Collingwood and subsequent criminal convictions.

22. Evidence was presented about Constable Eschweiler’s prior convictions forimpaired driving and domestic assault and the disciplinary penalties which theygenerated.

23. Facts were presented attesting to Constable Eschweiler's initiative and zeal, and his high level of enforcement activity. Sergeant C.J. Potts, the Appellant’ssupervisor from 1995 to 1997 gave evidence indicating that he would not hesitateto have Constable Eschweiler work for him, based on his performance.Several letters of commendation were also presented. This included a letter fromAlex Smart, Coordinator of the Waterloo/Wellington division of the John HowardSociety attesting to the Appellant’s voluntary participation in a men’s spousal abuse program, noting also that he had volunteered to be a guest speaker for theSociety’s “Driving While Impaired” program.

24. Evidence was given that 1996 had been a stressful year for the Appellant. In thatperiod he separated from his common-law spouse and child, in spite of his effortsto improve his anger management.

25. No evidence was presented that Constable Eschweiler had a disability relating tothe use of alcohol.

26. On October 7, 1997, after considering the evidence, the Hearing Officer imposedthe penalty of dismissal on P.C. Eschweiler.

Appellant’s Position:

24. Mr. Michael Temple, counsel for the Appellant, submitted that the penaltyimposed was harsh and excessive considering the previous satisfactoryemployment record of the Appellant and his rehabilitation from the causes of his misconduct.

25. He further submitted that the penalty imposed failed to recognize the principlethat any punishment must be consistent with similar cases dealt with by theemployer. To this end, Mr. Temple noted that in Reilly and Brockville PoliceService (OCCPS, 12 May, 1997) the Commission held that consistency in thedisciplinary process is often the hallmark of fairness.

26. Counsel for the Appellant acknowledged that he could cite no case that had facts that were identical to those of the case at hand. However, Mr. Temple referred toCiotka and Ontario Provincial Police (1994), 2 O.P.R. 984 (OCCPS) to suggestthat while fights in bars are significant matters they are perhaps not as serious asother cases.

27. Mr. Temple cited a number of decisions to illustrate that the penalty imposed inthis instance was out of line with other penalties for cases involving assault.These included: Kerr and Metropolitan Toronto Police Service (1981), 2 O.P.R.508 (OPC), Schofield and Metropolitan Toronto Police Service (1984), 2 O.P.R.613 (OPC), Maguire and Ontario Provincial Police 1975, Hill and MetropolitanToronto Police Service (1979), 1 O.P.R. 388 (OPC) and Picknell and OntarioProvincial Police (Ont. Bd. Inq., August 3, 1993).The penalties imposed in thesecases ranged from forfeiture of four to twelve days pay.

28. Mr. Temple cited Kleinsteiber and Ontario Provincial Police (OCCPS, 17 April,1996), to caution against placing excessive weight on the issue of damage to thereputation of the OPP, when taking into account the considerations enunciated in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) on thequestion of penalty.

Respondent’s Position:

29. Inspector Susan Dunn, counsel for the Respondent, submitted that it is wellestablished that an appellate authority should not interfere with a trial judge'sconclusion on matters of fact unless there is palpable and overriding error and insupport. On this point she cited Toneguzzo-Nornell et al. V. Burnaby (1994), 1994 CanLII 106 (SCC), 110D.L.R. (4th) 289 (S.C.C.) at pp. 292-3.

30. She argued that in light of this principle, an appellate body should only interveneif the Hearing Officer made a manifest error, ignored conclusive or relevantevidence, misunderstood the evidence or drew erroneous conclusions from it. She stated further that this Commission had established the test to be used when considering whether or not to set aside a decision. She cites Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (OCCPS).

31. Inspector Dunn also argued that, following Williams, supra where penalty is theissue the Hearing Officer must take into account the nature and seriousness of the offence, the ability to reform or rehabilitate, and the damage to the reputationof the police force should the officer remain.

32. She stated that criminal behaviour is serious misconduct that strikes at the heart of policing and should be considered at the high end of the penalty scale. Insupport of this assertion, the following cases were cited: Gulliver and Brantford Police Service (OCCPS, 15 July, 1997), Reilly, supra and Morden and PeelRegional Police Service (OCCPS, 20 March 1997).

33. Counsel for the Respondent submitted that Constable Eschweiler had been convicted of criminal offences four times between 1990 and 1997. She arguedthat Constable Eschweiler could not be reformed and rehabilitated by the O.P.P.and had required constant monitoring over a ten year period. She suggested thatthe Appellant had been the subject of progressive discipline and his continuedserious transgressions render dismissal as the only appropriate penalty.Inspector Dunn noted that no evidence was offered to suggest the presence of ahandicap which would make it appropriate to consider whether the officer soughtcare and or received successful treatment. She argued that although ConstableEschweiler had participated in a John Howard Society men’s spousal abuse program in 1996 this had to do with his earlier misconduct and was therefore not relevant to this appeal. In this regard, she referred to Nothing and OntarioProvincial Police (OCCPS, 15 March 1996), Gulliver, supra and Reilly, supra.

34. In conclusion, Inspector Dunn argued that the Hearing Officer had objectivelyconsidered all relevant factors and determined the appropriate penalty in this case.

Decision:

35. The facts in this case are not in dispute. The only concern is the issue of penalty.

36. Counsel for the Appellant argued that the penalty of dismissal imposed by theHearing Officer is harsh and excessive considering both the previousemployment record and the rehabilitation of the officer. He argued that drunkenbrawls are at the lower end of the scale of disciplinary infractions and cites Ciotkato illustrate this point.

37. We reject this argument. The Commission stated unequivocally in Ciotka, suprathat “It is self evident that police officers should not be involved in drunken brawls.” Bar brawls involving police officers, absent mitigating circumstances,constitute serious misconduct given that the stated objective of any police serviceis to keep the peace and protect the public.

38. Further, this case can be clearly distinguished from Ciotka, supra on the facts.The officer involved in that case had an excellent employment record with noprevious record of misconduct and his involvement in the event was both brief and minimal.

39. Counsel for the Appellant argued that similar cases involving assaults have beentreated more leniently, with lesser penalties. However, precedents dealing withisolated incidents are not applicable for the determination of penalty in caseswhere there is a history of similar incidents or a less than exemplary work record.Because of Constable Eschweiler’s previous transgressions and work history, hewas properly considered the subject of progressive discipline. We find that the Hearing Officer properly came to the correct conclusion when he found that the cases presented were not similar and therefore not helpful in determiningpenalty.

40. It is evident that the Appellant’s employment record demonstrates seriouscontinuing unresolved problems. We agree with the Hearing Officer that theevidence of Sergeant C.S. Potts concerning the usefulness of the Appellant as a police officer to his employer and the public was not particularly convincing. Norwas the evidence in this regard sufficient to outweigh the negative performanceevaluations and the circumstances of the conduct.

41. We find that the Hearing Officer did not fail to consider any mitigating factor thatwould require the imposition of a less severe penalty in this case. For example,there is no evidence that Constable Eschweiler suffered from the handicap ofalcoholism. Some evidence was presented that Constable Eschweiler had voluntarily participated in a men's spousal abuse program. However, there wasno indication that it had resolved what is clearly an anger management problem.Even taking this into account, given the Appellant’s employment history and thecircumstances of the transgression, we consider these factors would not be sufficient to excuse what we view as very serious misconduct.

42. Did the Hearing Officer err in holding that if the Appellant were to remain amember of the Ontario Provincial Police, the ability of that service to carry out itsmandate would be adversely affected?

43. Inspector Connolley properly relied on the principles enunciated in Williams, supra when considering penalty. Included in these are 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.

44. The Hearing Officer found that on the facts, Constable Eschweiler’s actions were “clear and blatant transgressions of his oath of office” and that he had lost his effectiveness as a police officer. Given that a condition of his probation order isthat he is prohibited from entering the limits of Collingwood whether on or off duty, this seems self evident.

45. Further, relying on Morden, supra Inspector Connolley concluded that ConstableEschweiler’s multiple disciplinary and criminal convictions have seriouslycompromised his ability to carry out his duties as a police officer. He found thatwere the Appellant to remain a member of the OPP and his conviction, the nature thereof, and the circumstances surrounding his disciplinary charges to becomepublic knowledge, the ability of the OPP to carry out its mandate would beadversely affected.

46. Police officers are expected to uphold a high standard of behavior. This standardought to reflect the responsibility of the office for the administration of justicewhich cannot be effectively enforced if the police officer, in private life,demonstrates disregard for the law. Constable Eschweiler engaged in a publicdisplay of wanton disorderliness. He diminished the police force in the eyes of the public by repeatedly and gratuitously identifying himself as a police officerduring the course of the evening.

47. The disciplinary infractions which are outlined in the agreed statement of fact areundoubtedly serious and without mitigating factors, sufficient to warrant a dismissal. These facts combined with the previous criminal and disciplinaryrecords of Constable Eschweiler are, in our view, clearly indicative that thisofficer has not benefited from progressive discipline. Constable Eschweiler hasdemonstrated that he cannot be reformed or rehabilitated despite discipline,constant monitoring and entering an anger management program.

48. As such, the Commission upholds the decision of the Hearing Officer and herebydismisses the appeal.

DATED THIS 23RD DAY OF SEPTEMBER, 1998

Karlene Hussey Sam Cancilla Member, OCCPS Member, OCCPS