ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE THOMAS J. STANFORD
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: Murray W. Chitra, Chair Brenda Weese, Member
Hearing Date: Wednesday, November 10, 1999
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 Brenda Weese, Member
Appearances:
Mr. P. Clinton Nolman, Counsel for the Appellant Inspector David McLean, Agent for the Respondent
Hearing Date: Wednesday, November 10, 1999
- This is an appeal from a disciplinary penalty imposed following a finding of discreditable conduct made against Constable Thomas Stanford.
Background:
On December 5, 1997 Constable Stanford was on duty and driving an unmarked OPP cruiser. Constable Stanford met with an informant and during their meeting consumed one beer.
After leaving the informant, Constable Stanford was contacted by a friend who invited him to join him in celebrating the birth of his granddaughter. Constable Stanford placed himself off duty and drove the OPP vehicle to Whiskey Willy's where he consumed additional beer.
After leaving this establishment, Constable Stanford picked up his daughter and her friend because they had missed their ride. He was still driving the unmarked OPP cruiser. A short time later Constable Stanford's vehicle was struck by another vehicle and Kingston Police were called.
When Kingston Police arrived, the investigating officer detected an odor of alcohol on Constable Stanford's breath and administered a roadside screening device test.
Constable Stanford failed and was arrested and taken to the Kingston Police Station for a breathalyzer test.
Statements from the Kingston Police officers indicate that Constable Stanford was polite and cooperative at all times.
The results of the breathalyzer tests were findings of 96 and 90 milligrams of alcohol per 100 millilitres of blood. This is beyond the legal limit. However, no criminal or provincial charges were laid against Constable Stanford. Instead he received a 12-hour driving suspension.
As a result of these events, Constable Stanford was served notice that a disciplinary hearing would be held before Inspector G.C. Connolley (the “Hearing Officer”). The specific allegation against Constable Stanford was that he did:
... act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ontario Provincial Police, contrary to Section 2(1)(a)(xi) of the Code of Conduct contained in the Schedule to Ontario Reg. 123/98.
The Hearing:
Constable Stanford appeared before the Hearing Officer on January 7, 1999 and pled guilty to the charge. An agreed statement of facts was read on the record. The Hearing Officer accepted the plea and found Constable Stanford guilty of the misconduct as laid out in the Notice of Hearing.
Both Inspector McLean for the prosecution and Mr. Nolman for the defense made arguments regarding penalty. Inspector McLean requested a forfeiture of 160 hours or 20 days time (approximately $4,500). Mr. Nolman requested a reprimand.
In support of his position Inspector McLean submitted two documents. The first document was an article in "Upfront" dated December 8th, 1996. This is the internal OPP newsletter. The article in question is entitled "Conduct during Festive Season" and is signed by then OPP Commissioner Thomas B. O'Grady.
It draws attention to the importance of OPP members maintaining good conduct while on duty and off duty and how it reflects on all members and the OPP as an organization. The article also stresses the lead role OPP take regarding drinking and driving enforcement through their Ride Programs. Inspector McLean suggested that when officers fail to set an example they lose credibility and public trust.
The second document submitted was a memorandum dated March 20, 1997 by Donald G. Thom, who was then Commander of the Professional Standards Bureau. It was entitled “Misconduct Involving Drinking and Driving” and addressed to all members of the OPP. This memo speaks of growing public intolerances toward drinking and driving offenses. It talks of the need for the OPP to maintain its position as a leader in the fight against drunk driving. It states that the Bureau's Ethical Standard's Unit would be seeking increased penalties for drinking and driving misconducts. Specifically, it states that “Effective immediately, the prosecutor will be requesting a demotion in rank for any driving convictions involving alcohol and an even higher penalty for more serious drinking and driving incidents”.
Inspector McLean acknowledged Constable Stanford's substantial and impressive record of service with the OPP. It contains nine letters of commendation, memorandums of appreciation, and various tributes. In June of 1991 Constable Stanford received a long service and good conduct medal. In November 1992 he received a Police Exemplary Medal.
Inspector McLean made reference to a disciplinary proceeding involving OPP Sergeant L.R. Johnson. That officer pled guilty to discreditable conduct on July 13, 1998. The allegation arose from an off duty criminal conviction for driving over 80 contrary to section 253(b) of the Criminal Code. The penalty imposed was reduction in rank to first class constable for one year.
Inspector McLean indicated that the offence in question was a serious one. He stated that his overall position with respect to penalty was based on principles of general deterrence, maintaining public trust and concern for damage to the reputation of the OPP rather than the specific deterrence of Constable Stanford. No witnesses were called for the prosecution.
Mr. Nolman argued that the penalty requested by the prosecution was ludicrous for a member of the OPP who has not been convicted of a criminal or Highway Traffic Act offense. He spoke of Constable Stanford's 28 years of exemplary service. He suggested that the guilty plea to the disciplinary charge showed the officer’s sincere wish to resolve the matter.
He noted that members of the OPP are required from time to time to drink on duty, particularly when dealing with informants. He also suggested that there are times when passengers are permitted to ride in police cars. He pointed out that Constable Stanford was not charged with any offense either related to his consumption of alcohol or the automobile accident. He indicated that there was no evidence to support the contention that Constable Stanford had either received or read the article or memorandum referred to by Inspector McLean.
Mr. Nolman called Superintendent Carson Fougere. He was OPP Director of Operations (Eastern Region). Superintendent Fougere testified about Constable Stanford's impressive successes both as a detective and intelligence officer. He stated that the Constable was “one of the very best intelligence officers that I know of in the Ontario Provincial Police”.
Superintendent Fougere expressed the view that the proposed disciplinary penalty was inordinately out of balance with fines imposed in Criminal Courts in Kingston for impaired driving. He stated that research revealed that the fine range for an impaired driving conviction was $350 to $1,000. He also indicated that command staff at Regional Headquarters “don’t think that 20 days pay is reflective of the offence to which Constable Stanford pled guilty …”
Mr. Nolman brought a number of cases to the Hearing Officer’s attention. One concerned Constable D.E. Graves who pled guilty on January 15, 1997 to discreditable conduct. This arose from an off duty conviction for driving over 80. The penalty was five days loss of pay. The second concerned Constable B.P. Beitz who pled guilty to discreditable conduct on September 17, 1997. The officer left the scene of an off duty motor vehicle collision in which he was involved. Alcohol may have been a factor. The officer was ordered to forfeit 60 hours of accumulated credits. The third case involved Constable Ormerod. That officer pled guilty to discreditable conduct on December 2, 1997. Constable N. Omerod was involved in an automobile accident while on duty. He was subsequently arrested and processed as an impaired driver. The penalty was 5 days forfeiture of pay.
Mr. Nolman argued that his client pled guilty to what he classified as low-end for discreditable conduct and a reprimand would be an appropriate penalty.
The Hearing Officer's Decision:
The Hearing Officer released his decision on February 8, 1999. Essentially, he indicated that the misconduct in question had three different aspects. They are as follows:
A member operating a motor vehicle with an alcohol level that exceeds the legal allowable limit.
The Hearing Officer concluded that there was a reasonable expectation that Constable Stanford had access to both the article and memorandum on drinking and driving. In any event, he would have been aware of the OPP’s concern with such conduct.
The Hearing Officer acknowledged the need in certain circumstances for a police officer to perform their duties effectively to assume a persona. An example of this would be an undercover officer. However, he indicated that in the circumstances presented there was no reason to suggest that consumption of alcohol by Constable Stanford while meeting his informant was necessary.
In any event, the Hearing Officer concluded that there was no acceptable operational rationale for members to place themselves in a situation where they have to drink and drive with alcohol levels above the legal limit.
A member operating a force vehicle with unauthorized personnel occupying it.
The Hearing Officer indicated that he was well aware of the restrictions placed on unauthorized persons in police vehicles. Exceptions can arise for prisoners or stranded motorists.
The Hearing Officer concluded that Constable Stanford’s daughter and her friend did not fall under any such exemption and there was no evidence to suggest that their presence in the vehicle was otherwise authorized.
The member being involved in a motor vehicle collision.
The Hearing Officer noted that Constable Stanford's cruiser was struck by another motorist while he had a blood alcohol level above the legal limit. While no charges were preferred against Constable Stanford as a result of this collision he received a 12-hour suspension.
The Hearing Officer then turned his attention to the question of penalty. He rejected the consideration of criminal code penalties. He emphasized that an administrative tribunal dealing with employer/employee matters should not look to courts of criminal jurisdiction for comparative penalties.
He indicated that consistency must be a key factor in any penalty decision. He referred specifically to Schofield and Metropolitan Toronto Police, (1984), 2 O.P.R. 613 (O.P.C.). He noted the three cases cited by Mr. Nolman but indicated that they had been decided prior to the release of the article and memorandum.
He referred to the Johnston case cited by Inspector McLean and observed that it took place after the release of the article and memorandum, like in Constable Stanford’s case. The penalty of one year’s demotion imposed translated into a dollar figure of approximately $7,700.
The Hearing Officer indicated that he must consider elements of specific deterrence, general deterrence and likely damage to the reputation of the OPP. He found that the chances of Constable Stanford committing a similar offence again was slim. He noted the officer’s excellent record and the fact that he pled guilty. He acknowledged that no criminal proceedings were involved.
However, the Hearing Officer found that Constable Stanford’s misconduct was serious and likely to cause damage to the reputation of the OPP. He suggested that any penalty must reflect the need to deter other police officers from such conduct. He stated that the penalty in this case must reflect the OPP’s commitment to rigorous enforcement of the drinking and driving laws and lack of tolerance for such misconduct by its members.
The Hearing Officer imposed a penalty of forfeiture of 120 hours or 15 days off. He suggested that if a criminal conviction had been involved that the likely penalty would have been demotion.
Appellant’s Position:
Mr. Nolman, on behalf of Constable Stanford, takes issue with the penalty imposed by the Hearing Officer
Specifically, he argues that the Hearing Officer:
made errors in the interpretation of the facts;
did not give proper and sufficient consideration to the case law, testimony or documents presented; and
improperly interpreted or gave undue consideration and weight to the prosecution’s evidence.
For these reasons Mr. Nolman suggests that the penalty imposed was excessive and a reprimand was warranted.
Mr. Nolman took issue with a number of the Hearing Officer’s findings. He suggested:
there was no evidence submitted that would support a finding that the consumption of alcohol was not pivotal to Constable Stanford’s meeting with his informant;
the prosecution failed to show that the passengers in Constable Stanford’s cruiser were unauthorized - instead, the Hearing Officer incorrectly put the onus on the defense to show they could be there;
despite the fact that Constable Stanford was not charged or convicted of any criminal offense the Hearing Officer characterized his alcohol blood level reading, as if he had been; and
there was no evidence that Constable Stanford was aware of the article or memorandum, but in any event neither was binding on the Hearing Officer.
- As well, Mr. Nolman drew our attention to the four cases cited at the original disciplinary hearing (Johnson, Graves, Beitz and Omerod). He suggested that all of these precedents are current, binding and should be considered. He stated that Graves, Beitz and Omerod show that penalties of 5 to 15 days have been imposed for far more serious cases.
Respondent’s Position:
Inspector McLean argues that the decision of the Hearing Officer is both correct and proper and should be permitted to stand.
He states that the factual findings of the Hearing Officer are amply supported by the evidence. He draws our attention to Toneguzzo-Norvell et al. v. Burnaby (1994), 1994 CanLII 106 (SCC), 110 D.L.R. (4th) 289 at pp. 292-3 (S.C.C.) for the proposition that an appellate body should not intervene unless there is manifest error, ignored or misunderstood conclusive or relevant evidence, or erroneous conclusions. He suggests that none of these exist in this case.
Inspector McLean states that the Hearing Officer is in the best position to determine penalty. This is particularly the situation given the extreme level of concern in the OPP with the impact of drinking incidents and their potential impact on the image of the force. He submits that proper consideration was given to both the nature and seriousness of the conduct and possible damage to the reputation of the service.
Inspector McLean argues that the Appellant’s conduct was serious and any penalty should be at the high end of the scale. He suggests that this is particularly the case given that the behaviour is in direct conflict with the OPP’s mandate and lead role in combating exactly this sort of conduct. Inspector McLean states that police officers are to be held to a higher standard than members of the public.
Inspector McLean notes the importance of consistency in sentencing. However, he points out the increasing lack of tolerance for drinking and driving reflected in increased penalties being set by both the courts and legislatures. He suggests that previous penalties imposed in police disciplinary proceedings reflect past values and no longer reflect appropriate standards. To this end, he states that the OPP took all reasonable steps to advise its members of increasing penalties for such conduct.
Finally, Inspector McLean indicates that the most relevant precedent to be considered is Johnston. Those presented by Mr. Nolman were issued prior to the article and memorandum.
Decision:
In assessing penalty it is important to take into account a number of factors. These include the nature and seriousness of the offence, the ability to reform or rehabilitate the officer and the damage to the reputation of the police service. Other considerations can arise and constitute either mitigating or aggravating factors, depending on the particular misconduct. These can include employment history and experience, recognition of the seriousness of the transgression, handicap or relevant personal circumstance, provocation, the need for general or specific deterrence, any concerns arising from management’s approach to the conduct in question.
Further, it is important where possible that any penalty imposed is consistent with those imposed in similar cases in the past. This ensures fairness.
There is no doubt in our minds that Constable Stanford is guilty of serious misconduct. A few weeks before Christmas he consumed alcohol while on duty. Even assuming a beer with his informant can be justified he booked himself off duty and went directly to a bar where he continued drinking to the point where his alcohol blood level was above the legal level.
In this condition, he picked up a young family member and her friend in his unmarked OPP cruiser and shortly thereafter found himself in an accident. Even assuming there was authorization for these young women to be in the car, he should not have been on the road. It is fortunate that there were no serious injuries.
Constable Stanford failed a roadside screening test, was arrested and taken to the Kingston Police Station where he tested 96 and 90 milligrams of alcohol per 100 milliliters of blood. It is indeed fortunate for him that no criminal charges were brought and that he only lost his license for 12 hours.
There is little doubt that this conduct had the potential to seriously damage the reputation of the OPP. The OPP and other police services throughout Ontario have devoted a great deal of time and effort over the past years in an attempt to discourage drinking and driving. Having a senior OPP officer arrested in his cruiser just prior to the Christmas RIDE program had great potential to adversely affect the local reputation of the OPP and its efforts to deal with a serious social problem.
That being said, it is evident that Constable Stanford has several factors to his credit. He was polite and cooperative with the officers of the Kingston Police Service. He pled guilty at his disciplinary hearing and acknowledged his responsibility. He has an impressive record of service of over 26 years. He has no prior disciplinary record. He is highly respected by his superiors.
There is no suggestion that there is a concern with a handicap (i.e. alcoholism), personal circumstances or any worry that there might be reoccurrences. Indeed, rehabilitation or specific deterrence would not appear to be significant considerations. The same can be said for management’s approach in this case.
In our view, the Hearing Officer properly took the above-noted factors into account. That then leaves the question of general deterrence. The Hearing Officer stressed the need to impose a penalty to discourage other officers from similar behaviour and reflect the OPP’s commitment to rigorous enforcement of the drinking and driving laws and lack of tolerance for such misconduct.
There is little doubt that the Commissioner’s remarks of December 8, 1996 made it clear that drinking and driving was unacceptable conduct for members of the OPP. It is a clear statement of OPP policy. It is certainly a factor that the Hearing Officer could take into account. As well, given the general distribution we do not see why the Hearing Officer could not assume that it was known to members of the service including Constable Stanford.
The memorandum of the Professional Standards Bureau is another matter. Essentially, it is notice that OPP prosecutors will be seeking greater penalties for drinking and driving offences. It is essentially a statement of prosecutorial policy. It certainly does not bind members or a Hearing Officer. Indeed, a Hearing Officer is required to consider each case on its merits regardless of the internal policy directing the prosecutors submissions.
The above being said, we accept the Hearing Officer's conclusions that general deterrence was an important factor in this case, given OPP policy making it clear that drinking and driving was unacceptable conduct.
That brings us to the matter of penalty. The cases presented by Mr. Nolman range from loss of 5 to 7.5 days pay forfeiture or time off. As well, reference was made to criminal penalties in the Kingston criminal courts. To our mind the latter are irrelevant to our considerations. The case presented by Inspector McLean involved a penalty of demotion one grade for a year.
We observe that the previous penalties for drinking and driving have varied greatly in the past. For example, in Salamon and Michipicoten Police Service (1971), 1 O.P.R. 56 (O.P.C.) this Commission upheld the dismissal of an officer for the discreditable conduct of speeding in his truck while impaired.
Given the above we cannot find that the penalty of forfeiture of 15 days time off imposed in this case is outside the range of previous decisions. Certainly, it is stiff given Constable Stanford’s previous record. However, given the importance of deterring drinking and driving in service vehicles, it cannot be said to be so egregious or excessive to warrant overturning.
Accordingly, the appeal against penalty is dismissed.
DATED THIS 28th DAY OF MARCH 2000.
Murray W. Chitra Brenda Weese
Chair, OCCPS Member, OCCPS