ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE PERRY MASON Appellant
-and-
HAMILTON-WENTWORTH REGIONAL POLICE SERVICE Respondent
DECISION
Panel: Frederic G. Farrell, Q.C., Member Brenda Weese, Member
Hearing Date: Tuesday, October 2, 2001 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: Frederic G. Farrell, Q.C., Member Brenda Weese, Member
Appearances: Brad Boyce, Agent for the Appellant Inspector John Daniels, Agent for the Respondent
Hearing Date: November 24, 1999
- Constable Perry Mason appeals the penalty of reduction in rank for six months to second class constable imposed upon him for the offence of discreditable conduct contrary to section 1(a)(ix) of Regulation 927, R.R.O. 1990 as amended (the “Code”).
Background:
Constable Mason was found guilty in criminal court of the offense of Uttering a Death Threat contrary to the Criminal Code of Canada. The death threat was directed against Staff Sergeant Loft of the Hamilton-Wentworth Regional Police Service at a regional hockey arena. The Staff Sergeant and Constable Mason were both off duty.
At the time, Constable Mason was separated from his wife who had custody of their child. The child played minor hockey. Constable Mason had previously agreed not to enter the arena dressing room if his wife brought the child to the rink. Constable Mason decided to ignore the arrangement. The Coach approached Constable Mason and spoke to him about other parents concern with his presence in the dressing room due to an earlier incident. Constable Mason became very irate and began cursing and swearing. A female convenor requested he stop using foul language as he was getting out of control. Constable Mason told her to “shut her mouth and to mind her own fucking business”. Someone asked the police be called. Staff Sergeant Jack Loft was present at the arena with his son and was asked to assist. When Staff Sergeant Loft approached, he said nothing to Constable Mason, but Constable Mason said “You get the fuck out of my face and mind your own fucking business. You’re the cause of all my problems and you’re dead”. Staff Sergeant Loft turned and left.
Staff Sergeant Loft and Constable Mason had been friends and neighbours.
The Allegation:
- As a consequence of this incident and the resulting criminal conviction Constable Mason was charged with discreditable conduct. The specific allegation was that he:
"Being a sworn member of the Hamilton-Wentworth Regional Police Service, on or about the 26th day of June 1998, in the Regional Municipality of Hamilton-Wentworth, you were found guilty of committing an offence punishable upon summary conviction under the Criminal Code of Canada; namely that you did by verbal means knowingly utter a threat to Jack Loft to cause death to Jack Loft contrary to the provisions of section 264.1(1), by His Honour Judge W.D. Morrison in Ontario Court (Provincial Division - Criminal). Such a finding of guilt is likely to bring discredit upon the reputation of the Hamilton-Wentworth Regional Police Force".
The Hearing:
Constable Mason appeared before Deputy Chief Thomas R. Marlor (the “Hearing Officer”) and pled guilty
Mr. Boyce, Agent for Constable Mason, asked for a penalty of days off. In support of his recommendation he referenced three cases: Schofield and Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.), Boshold and Ontario Provincial Police (1986), 2 O.P.R. 694 (O.P.C.) and Konkle and Niagara Regional Police Service (1992), 2 O.P.R. 927 (O.C.C.P.S.). He also filed letters in support of a non-monetary penalty from Superintendent Slack, Staff Sergeant Watts and Dr. Brian Kessler, M.D., FRCPC.
Inspector Daniels, the prosecutor, asked for a penalty of reduction in rank to second class constable for a period of 12 months. In support of his recommendation referenced the following cases: Ms. X v. Sergeant Y (Ont. Brd. Inq., June 27, 1994), King and Toronto Police Service (1992), 2 O.P.R. 923 (O.C.C.P.S.), Wilson and Gloucester Police Service (1980), 2 O.P.R. 463 (O.P.C.), Dempsey and Waterloo Regional Police Service (1991), 2 O.P.R. 909 (O.C.C.P.S.), Batorski and Niagara Regional Police Service (1982), 2 O.P.R. 569 (O.P.C.) and Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.).
Also filed by Inspector Daniels was an informal discipline report relating to a previous incident of discreditable conduct, which occurred on September 8, 1997. The facts in this matter were:
“On Monday, September 8, 1997 at approximately 4 p.m., Constable Mason went to his estranged wife’s place of work at 1575 Upper Ottawa St., Hamilton. Once again there was a heated discussion and Mrs. Mason asked him to leave on several occasions and eventually got up and walked into the washroom to end the discussion. It is also believed that Perry spat on the floor in the presence of the complainant. When she came out of the washroom, Perry was still there and continued to yell in the presence of other people. He eventually left on his own.”
- The disposition for this incident occurred on February 13, 1998. Constable Mason was awarded a penalty of eight hours sick time.
The Penalty:
In his decision, the Hearing Officer reviewed the evidence provided. He stated that the stress Constable Mason was under because of his marital breakdown was regrettable, but could not be seen as an excuse for his inappropriate behaviour. He noted that police officers are expected not only to manage the stress inherent in their professional lives, but the stress in their private lives as well. He indicated that police officers are thought of as pillars of their community and the type of behaviour exhibited by Constable Mason cannot be condoned.
He also stated that citizens do not feel comfortable with the type of behaviour so publicly displayed in a location frequented by families with children.
The Hearing Officer noted that Constable Mason was disciplined for a similar incident only three weeks prior to the incident in question. Thus, it appeared that Constable Mason did not learn from the previous disciplinary action. Indeed the second event was much more serious and resulted in criminal charges.
In considering penalty the Hearing Officer took into account general deterrence, specific deterrence, rehabilitation, and progressive discipline.
With respect to general deterrence he stated that a clear message must be sent to all police officers that being convicted of a criminal offence is unacceptable behaviour.
He noted that Constable Mason has worked as a police officer for nearly 20 years. His file contains 30 letters of support and commendation. Other than the earlier mentioned informal discipline matter his work record is excellent.
With respect to rehabilitation, he suggested that a tribunal must strike a balance and not impose a penalty that causes such hardship that Constable Mason won’t lose hope. However, he stated that any penalty must be harsh enough to show that any recurrence would be unacceptable.
On the question of progressive discipline, the Hearing Officer noted that Constable Mason was convicted under the informal discipline system of discreditable conduct approximately three weeks before committing this offense and received a penalty of loss of eight hours sick time.
After considering all of the issues Deputy Chief Marlor imposed on Constable Mason a penalty of reduction in rank to second class Constable for a period of six months. It is this penalty which is the subject of this appeal.
The Appeal:
The Appellant argued that the penalty imposed by the Hearing Officer was excessive and harsh in the circumstances and was:
inconsistent with similar cases; and
failed to properly take into account the officer’s excellent record and the mitigating circumstances of the enormous stress Constable Mason was under during this time.
The Appellant noted that the penalty imposed was equivalent to a financial loss of $5,403.00.
The Respondent argued that the Hearing Officer was fully aware of the above mitigating factors, i.e. the excellent record of the officer and the stress that he was under at the time of the incident. He noted that stress is a part of every day life and pointed out that three weeks before the incident which gave rise to this penalty that the officer was sentenced for another stress related misconduct charge.
He argued that the Hearing Officer followed the principles of sentencing, i.e. the seriousness of the misconduct, specific deterrence, general deterrence, rehabilitation and progressive discipline. He stated that the penalty was appropriate and in line with other cases in Ontario with respect to such conduct and accordingly that the appeal should be denied.
Decision:
- With respect to the Commission and its role in reviewing penalties, the test to be applied was set out in Reilly and Brockville Police Service (May 12, 1997, O.C.C.P.S). At page seven in that decision, the Commission stated:
“In Williams and OPP 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.
There 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.
Finally, other considerations could include provocation, the need for deterrence and concerns arising from management’s approach to the misconduct in question.
When 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.”
These principles must be applied to the current fact situation.
Upon reading the reasons for the penalty, it is apparent that the Hearing Officer gave considerable thought to the established principles to be applied in sentencing, i.e. the seriousness of the misconduct, specific deterrence, general deterrence, rehabilitation and progressive discipline.
We agree with the Hearing Officers conclusion that the conduct was serious. Constable Mason in public uttered a death threat against a fellow officer of superior rank. He was later charged and convicted under section 264(1) of the Criminal Code of Canada. The fact that neither officer was in uniform at the time makes little difference since most of the individuals, including children, viewing the spectacle knew that both men were police officers.
With respect to specific deterrence, Constable Mason must be deterred from repeating this type of behaviour in the future. It is of particular significance that three weeks prior to this incident that Constable Mason lost several hours for another disciplinary charge. This misconduct also involved his marital problems and dealing with stress. Clearly, loss of hours was not sufficient to deter him from his subsequent reprehensible behaviour. We believe that the Hearing Officer correctly recognized this fact.
With respect to general deterrence, members of the Service must be made aware that such behaviour will not be tolerated or dealt with in a cavalier manner. The Hearing Officer specifically wanted to make it clear that threatening fellow officers and being convicted of a criminal offence is unacceptable and will result in a serious penalty. We agree.
With respect to rehabilitation, a penalty must be tailored to reform the officer and his behaviour. We note that Constable Mason had 20 years of excellent service with the Hamilton-Wentworth Regional Police Service and received 30 commendations during that distinguished period of time. As well, he pled guilty to the charge of discreditable conduct and in some measure accepted responsibility for his behavior. That is certainly to his credit.
However, the Hearing Officer did not ignore or overlook Constable Perry Mason's employment history or his guilty plea. It should be noted that the prosecutor was seeking a reduction in rank to second class constable for a period of 12 months. The Hearing Officer however, chose to impose a lighter penalty than was being requested, i.e. a six month reduction as opposed to a 12 month reduction in rank.
Further, the Hearing Officer appears to have properly taken into account principles of progressive discipline. As noted above, only three weeks before this incident occurred resulting in a criminal charge, Constable Mason was sentenced on another misconduct charge arising out of stress related marital problems. The penalty was a loss of eight hours (appropriately lenient given his past record of achievement and commendations). The Hearing Officer took this into account and substantially increased the penalty for the current misconduct charge. He was correct to do so.
Overall we are satisfied that the Hearing Officer appears to have properly balanced the police officer’s employment history against all of the above key principles, i.e. the seriousness of the misconduct, specific deterrence, general deterrence, rehabilitation and progressive discipline.
In the circumstances we agree that reduction in rank is the appropriate penalty. That leaves the question of whether the period of reduction in rank for six months was excessive, harsh or inconsistent with similar cases.
The Appellant provided us with no case authorities to assist us in our determination, but forcefully attacked the case authorities submitted by the respondent as being irrelevant to this case. He argued that the fact situations presented were either totally dissimilar or penalties inappropriate to the case before us.
One case brought to our attention is worth mentioning. That is Gibson and Waterloo Regional Police Service. It is an appeal to this Commission of a penalty arising from a finding of discreditable conduct. The Appellant in this case had been ejected from a building by a security officer after being involved in a fight. Outside, he came in contact with two paid duty uniform officers. He used abusive and foul language towards the officers in the presence of the public. He also refused to leave the scene when requested to do so by the two officers.
The Commission upheld a penalty of reduction in rank to second class constable for six months and dismissed the appeal. Accordingly, there is precedence for penalties of up to six months demotion for officers who engage in belligerent and aggressive conduct in public towards their fellow officers.
As well at page 709 of this decision, the Commission stated:
“Appeals of this nature confront this Commission with the fact that there is no absolute standard by which to measure the appropriate penalty. There are reasons why province-wide uniformity is not always an appropriate objective. The forces of the Province are each entitled to emphasize corrective measure for problems which may be of particular concern to them. Concerns may change from year to year, community demands and standards may be different from one to another. In many respects what may appear just and fair to one Hearing Officer may not appear likewise to another. Fairness can be a matter of opinion.
For the above reasons this Commission is hesitant to substitute its thoughts on the fairness of a penalty for those of the Hearing Officer who heard the evidence, assessed the witnesses, and is close to the needs of the force and of the community.
The Hearing Officer is situated in the community of Hamilton-Wentworth and knows the concerns, needs and requirements of his force.
Clearly, the officer in this case was experiencing personal problems. Everyone is under stress from time to time and no one is free of family concerns. This is no excuse for unlawful behavior. A police officer is a professional and looked upon by the public as a person who they can rely upon in an emergency situation. Constable Perry Mason is a professional, having served 20 years of service and having received many commendations over the course of his career. The foregoing is strong evidence of his professionalism.
In our view the penalty of a reduction in rank to second class constable for six months is neither excessive nor unreasonable. It is within the acceptable range. This penalty will impose a financial burden on Constable Mason. Nevertheless, it was self-inflicted. Constable Mason still has the opportunity to have a good future with the Hamilton-Wentworth Regional Police Service given his past record of achievement. Whether or not this proves to be the case rests solely with him.
For the above reasons, the appeal is dismissed and the penalty upheld.
DATED THIS 9TH DAY OF MARCH 2000.
Frederic G. Farrell, Q.C. Member, OCCPS
Brenda Weese Member, OCCPS