White and Reid v. Windsor Police Service, 2000 CanLII 45060

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

CONSTABLE PETER WHITE and CONSTABLE THOMAS (SCOTT) REID Appellants

-and-

WINDSOR POLICE SERVICE Respondent

DECISION

Panel: Frederic G. Farrell, Q.C., Member Bob Saracino, Member

Hearing Date: June 13, 2000 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 Bob Saracino, Member

Appearances: Jeffrey Hewitt, Counsel for the Appellants Inspector Darryl Snyder, Agent for the Respondent

Hearing Date: June 13, 2000

1Constables Peter White and Thomas (Scott) Reid appeal the sentencing decision of Staff Inspector Bill Stephens (the “Hearing Officer”) of October 15, 1999. On that date both officers received penalties of demotion of rank from first class constable to second class constable for a period of nine months.

2These penalties were imposed after both officers entered a guilty plea to two counts of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct (the “Code”) found at Ontario Regulation 123/98.

Background:

3The events giving rise to this case are not in dispute. At the initial disciplinary hearing there was an agreed upon statement of facts. It read as follows:

Constables Reid and White, sometime between September 15th and December 31st, 1998 completed a number of mail order cards causing a number of items to be sent to the homes of Staff Sergeant Rossell, Staff Sergeant Gervais and Staff Sergeant Pickford. These cards were made out in the names of the Staff Sergeants and also in Staff Sergeant Gervais’ wife’s name and also in the name of Staff Sergeant Rossell’s wife.

Analysis of the cards by the Centre of Forensic Sciences determined that Officer White wrote the information sent to Chem-Lawn and Ultramatic Sleep of Canada in the name of Staff Sergeant Gervais. Further the Centre of Forensic Sciences determined that Officer Reid wrote the information sent to Ultramatic Sleep of Canada, in the name of Staff Sergeant Rossell, Equinox magazine in the name of Doris Rossell, Harrowsmith Country Life magazine in the name of D. Rossell, Doubleday Book Club in the name of D. Rossell and Ultramatic Sleep of Canada in the name of Staff Sergeant Pickford.

As a result of these cards being sent to the companies, Staff Sergeant Rossell received the following items at his home:

1. Collector’s knife from the Franklin Mint
2. Magazines from Equinox
3. Magazines from Harrowsmith
4. 8 books from Doubleday Books
5. 3 Hummel Christmas figurines from Ashton Galleries

Staff Sergeant Pickford received the following items at his home:

1. Set of 3 angels from the Bradford Exchange
2. Collector’s pocket knife from either the Bradford Exchange or the Franklin Mint
3. Collector’s mini fire truck

Staff Sergeant Gervais received the following items at his home:

1. A video
2. A collector’s pocket knife with a 4" blade.

In addition, as a result of cards sent to Chem Lawn, both Staff Sergeant Gervais and Staff Sergeant Rossell received lawn treatments and both received a substantial number of documents in the mail from different mail order companies offering a variety of goods and services.

The three Staff Sergeants and their families were forced to go to great lengths sending numerous letters and making many phone calls to the various companies in an effort to have their names removed from the various mailing and subscription lists.

The Allegations:

As a result of the above noted activity Constables White and Reid were charged with two counts of discreditable conduct contrary to the Code. The relevant provisions state:

2(1) Any chief of police or other police officer commits misconduct if he or she engages in,

(a) DISCREDITABLE CONDUCT, in that he or she …

(xi) acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force.

4Count #1 against Constable White pertains to the mailings to the residence of Staff Sergeant Thomas Gervais. Count #1 against Constable Reid pertains to the mailings to the residence of Staff Sergeant David Rossell.

5With reference to Count #2 the allegation of discreditable conduct against both Constables White and Reid pertains to mailings to the residence of Staff Sergeant David Pickford.

The Hearing:

6Both Constables White and Reid appeared before the Hearing Officer on Friday, June 18, 1999 and entered a plea of guilty to both counts of discreditable conduct.

7Mr. John Moor, agent for Constable White and Constable Reid requested a penalty of a loss of leave days, i.e. a loss of four to seven days for each count against each officer.

8Inspector Darryl Snyder on behalf of the Windsor Police Service (the “Service”) requested a reduction in rank for each officer from first class constable to third class for six months followed by demotion to second class constable for a period of one year.

The Penalty:

9In his decision, the Hearing Officer reviewed the evidence as submitted. He stated that he considered the following principles i.e. severity of the offences, deterrence both specific and general, correcting behaviour and impact on the victims.

10The Hearing Officer examined the officers' conduct from three perspectives. Firstly, he viewed policing as a “close knit fraternity” wherein police officers both for their personal safety and security look out for one another. He concluded that officers White and Reid violated the closely held trust within the police service. He felt that they had interfered and intruded upon the lives of Staff Sergeant Gervais, Rossell and Pickford and their respective families.

11Second, he noted that their actions were directed against mid-level supervisors within the Service intending to belittle and demean the officers involved.

12Third, he concluded that the officer’s actions contained a threatening tone and was perceived as such by the victims. In particular he noted that the wife of Staff Sergeant Gervais, from her testimony at the hearing, was terrified when the knife arrived in the mail. She experienced sleepless nights and felt insecure in her home. Staff Sergeant Rossell had received a book entitled “The Mark of the Assassin” and “The Target” which also he believed sent a threatening message.

13The Hearing Officer also noted the impact on the victims, i.e. the Staff Sergeants and their respective families. The three Staff Sergeants and their respective wives had concerns for their personal safety in addition to the inconvenience and embarrassment that they sustained as a direct result of the mailings. The Hearing Officer concluded that since Constables White and Reid offered no explanation as to why they selected these particular three Staff Sergeants for harassment, their conduct constituted an attack on the hierarchy and chain of command of the Service.

14With respect to specific deterrence the Hearing Officer felt that any penalty he imposed had to deter both officers from repeating their behaviour. That being said, he acknowledged that both officers had the capacity to continue to benefit both the Service and the community.

15With respect to general deterrence he indicated that any penalty must send a clear message to the entire Service that this type of conduct would not be tolerated. With respect to correcting behaviour the Hearing Officer concluded that this was an isolated act. While he accepted Mr. Moor’s assessment that there was a snowball effect from the mailings resulting in additional items being sent to the household of the three officers, he concluded that they were ultimately responsible. He noted the remorse of the officers, their apologies, their guilty pleas and their employment records.

16At the time of the offences Constable Reid had twelve years employment with the Service, held the rank of senior constable and had no prior disciplinary history.

17Constable White had ten years of service and also had no prior charges. In other words, both officers had an unblemished service record.

18Given these considerations the Hearing Officer assessed both Constables White and Reid with a penalty of demotion in rank to second class constable for a period of nine months on each count to run concurrent.

The Appeal:

19Mr. Hewitt, on behalf of the Appellants, argues that the penalty imposed by the Hearing Officer is excessive and inconsistent with those imposed in other cases both by the Service and other police forces in the Province of Ontario. The Appellants seek the imposition of a sentence appropriate to the circumstances and consistent with past sentencing practices.

20The Appellants insist that the misconduct in question was merely a practical joke that took on a life of its own. The officers acknowledge that the behavior was both singular and stupid but argue that it was not an attack on the hierarchy of the Service.

21Mr. Hewitt argues that both Appellants have unblemished service records and an exemplary work history, and the conduct is wholly inconsistent with their character. Accordingly, he suggests that a demotion in rank for nine months is both severe and inappropriate under the circumstances.

22In support of these arguments counsel for the Appellants draws our attention to the following cases: Sack and Ontario Provincial Police (1987), 2 O.P.R. 784 (OPC), Spizzini and Ontario Provincial Police (1988), 2 O.P.R. 799 (OPC), McCoy and Ontario Provincial Police (1989), 2 O.P.R. 832 (OPC) Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (OCCPS).and Mason and Hamilton Wentworth Regional Police Service (unreported, March 9, 2000 OCCPS).

23As well, he draws to our attention a number of unreported sentencing decisions of the Service. These include: Couloufis (January 29, 1999), Bridgeman (February 20, 1992) O’Gorman (August 8, 1997), Gallant (April 15, 1998) and Levesque/VanBuskirk (March 31,1998).

24In contrast, Inspector Snyder for the Respondent argues that the penalty imposed by the Hearing Officer was proper and seeks confirmation of the sentencing of reduction in rank from first class constable to second class for a period of nine months. He states that the penalty imposed by the Hearing Officer should be upheld in light of the circumstances and past sentencing practices.

25Inspector Snyder argues that the misconduct in question was not in fact singular. He points out that there were several different mailings resulting in over a period of time the delivery of items and further solicitations from other companies.

26The Respondent suggests that the misconduct was not a practical joke given the nature of the items delivered to the household of the three Staff Sergeants, i.e. the knife and books entitled “The Target” and “The Mark of the Assassin”. The Respondent argues that the misconduct was an attack aimed at the Service and its members.

27Inspector Snyder referred us to the following cases in support of his arguments:O’Farrell and Wlodarek and the Metropolitan Toronto Police Service (1976), 1 O.P.R. 251 (OPC), Batorski and the Niagara Regional Police Service (1982), 2 O.P.R. 569 (OPC) and Howat and Ontario Provincial Police (1990), 2 O.P.R. 876 (OCCPS).

28In conclusion, the Respondent argued that the penalties imposed were neither excessive nor inconsistent with prior cases and should be upheld.

The Decision:

29The Commission has a specific role in reviewing penalties. The test for such a review was clearly set out in Reilly and Brockville Police Service. At page 7 of 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 included 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.”

30The above principles must be applied to the current fact situation before us.

31We have carefully read and reviewed the Hearing Officer’s decision. It is evident that he did give considerable consideration to many of the above-established principles, i.e. severity of the offences; specific and general deterrence; and rehabilitation. As well, while he did not directly address progressive discipline, there being no prior offences committed by these officers, he did examine their employment records. The Hearing Officer also focused on the effect of the misconduct on the victims and the entire Service.

32We agree with the Hearing Officer that the misconduct of Constables White and Reid was serious. In our opinion, the Hearing Officer was correct in his view that in a police service there is an element of trust and reliance among its members and the behaviour exhibited by Constables White and Reid breached that trust and was “prejudicial to discipline”.

33Their behaviour embarrassed, belittled and demeaned the three Staff Sergeants and caused a considerable amount of inconvenience and concern not only to their fellow police officers but also their respective families. It was appropriate for the Hearing Officer to give weight to the evidence of the victims, especially the family members whose privacy and security had been violated and it seems self evident that the articles that were delivered, were deliberately selected.

34With respect to the impact on the entire Service, the Hearing Officer appeared disturbed that the officers categorized their misconduct simply as a practical joke. We agree that this misconduct was not simply a practical joke but rather a serious deviation from the professional behavior expected of every member of the Service.

35Neither Constable White nor Constable Reid offered an explanation as to why the three Staff Sergeants were selected for the mailings. We agree with the Hearing Officer's conclusion that in absence of any evidence to the contrary and no credible explanation as to why they selected these three Staff Sergeants for harassment, then the attacks must have been aimed at the Service.

36The Appellants had argued that the misconduct was a singular act. The Respondent noted that Constables White and Reid had deliberately planned and executed their misconduct over several weeks resulting in several other solicitations compounding their behaviour. The Hearing Officer accepted the Appellants’ argument that the mailings were done over a tight time frame.

37Nevertheless, the consequences and the resulting harm to the victims and the reputation of the Service were ongoing for a considerable amount of time.

38With respect to general deterrence the Hearing Officer was correct in his decision that a clear message had to be sent to all members of the Service that such conduct was not acceptable. We agree that for the benefit and peace of mind of all members that such behavior cannot and should not be tolerated and must result in a penalty that is both appropriate and serious.

39With respect to rehabilitation the Hearing Officer discussed the principle under the heading “Correcting Behaviour”. The penalty should reflect the seriousness of the misconduct and at the same time be tailored to reform the officers. Both officers entered a plea of guilty to both counts of misconduct and did make a public apology for their actions.

40We note that Constable White at the time of misconduct had ten years of commendable service with the Service. He was hired as a police cadet on July 16, 1989 and promoted to the rank of constable on February 12, 1990. We further note that Constable Reid at the time of the misconduct had twelve years of commendable service with the Service. He was hired as a cadet on October 5, 1987 and promoted to the rank of constable on October 17, 1988 and at the time of the misconduct held the rank of senior constable.

41The Hearing Officer took into consideration the plea of guilty, their apology and their excellent employment record. In his decision he made reference not only to their employment history but also to performance evaluations, personal conduct sheets and letters of support from other staff sergeants.

42The cases drawn to our attention both by the counsel for the Appellants and the Agent for the Respondent did not pertain to similar acts of misconduct. However, some of the cases are worth noting for comparative purposes in that the penalty was imposed after consideration of the seriousness and the consequences of the misconduct and the effect of the mitigating factors on the penalty itself.

43In Sack and Ontario Provincial Police the officer had twenty-one years of service with no previous disciplinary record. While off duty he changed the price on a cassette recorder in a retail store. He was later charged with fraud, found guilty and received a conditional discharge. He was also charged with discreditable conduct. The Hearing Officer ordered the officer to resign in seven days or be dismissed.

44On appeal, the penalty was reduced to twenty days forfeiture of leave or days off. The decision noted at page 784 that “This simple act is unexplained and totally out of character. This Officer should not be dismissed for a singular act of human frailty.” On appeal the Commission noted that in this case while theft was serious misconduct there were mitigating factors. These included length of service, no prior disciplinary record and the fact that the matter in question was a single isolated act.

45In Spizziri and Ontario Provincial Police the officer had seventeen years of service with no previous disciplinary record. He shoplifted a brief case and two pairs of women’s pants from a retail store. He was charged with theft and received a sentence of 100 hours community service. The psychiatric evidence disclosed that he was under significant stress at the time of the incident. However, at the disciplinary hearing for discreditable conduct he was ordered to resign in seven days.

46On appeal the penalty was reduced to a reduction in rank for six months. The mitigating factors were seventeen years of service, no prior disciplinary record and an explanation, i.e. stress, supported by psychiatric evidence as opposed to an excuse for his conduct.

47It is worth noting that in each of the above cases there are stark differences in the consequences of misconduct. The acts of misconduct were all momentary deviations from otherwise normal behaviour and not a conscious, deliberate, pre-meditated act against three fellow officers with a direct effect on their families and reputation of the Service. It should also be noted that the officers in Sack and Spizziri had more years of service than Constables White or Reid.

48Apart from its prejudice to overall discipline, the reputation of the Service has also been damaged. The local media became aware of the misconduct and in fact attended at the sentencing hearing on October 15, 1999. The Windsor Star, CKLW, CBC Radio, CIMX FM, and CBC TV were all present

49Police officers are expected to maintain the respect of their community and this type of misconduct cannot be condoned or overlooked. On a daily basis, police officers are called upon to perform difficult tasks which seldom come to the attention of the general public. By contrast, acts of misconduct such as those committed by Constables White and Reid receive considerable attention, are remembered and tarnish the image of the entire Service.

50The Commission has authority to vary a penalty imposed by a Hearing Officer under certain circumstances. In Gibson and the Waterloo Regional Police Service (1986), 2 O.P.R. 707 at page 709, the Commissions 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.

51It can be argued that the Hearing Officer being situated in Windsor, Ontario knows the concerns, needs and requirements of the Windsor Police Service. However, the Commission has the responsibility to ensure the appropriateness and fairness of the penalty.

52As noted earlier, the Hearing Officer gave a great deal of consideration to the severity of the offence, specific and general deterrence and rehabilitation. The Hearing Officer also considered several mitigating factors i.e. their apology, employment records, performance evaluations and letters of support. However, in reviewing the decision of the Hearing Officer, the Commission believes that insufficient weight was given to the mitigating factors.

53At the time of the incident, Constable White had twelve years of service and Constable Reid had ten years of service with the Windsor Police Service. Neither officer had been the subject of any prior disciplinary matters. It should be emphasized that there were two highly complimentary performance evaluations submitted at the hearing by Staff Sergeant McFarland on behalf of both officers. In addition, there was also a performance evaluation of Constable White submitted by Sergeant Jolie and Sergeant Witesell as well as personal conduct sheets for both officers. It is worth noting that the above documentation made specific reference to “considerate and courteous with the public, peers and supervisors”, “shows a good image for the Windsor Police Service”, “treats others with respect and exhibits common sense and maturity”.

54Their apology for their misconduct also appeared to be genuinely sincere and both officers demonstrated remorse and regret. The Hearing Officer while acknowledging the above mitigating factors failed, in our opinion, to fully appreciate the importance of the above attributes in assessing an appropriate penalty.

55The penalty must be tailored to both punish and deter while not causing undue or excessive hardship and yet sufficient to demonstrate that any reoccurrence will not be tolerated. It is of the utmost importance that a proper balance be achieved.

56The penalty also must be consistent with similar cases in order to maintain consistency in sentencing. While fact situations vary, a spectrum of misconduct and resulting penalties can provide a good comparative analysis to assist the Commission in determining an appropriate and fair penalty.

57As stated earlier, counsel for the Appellants and the Agent for the Respondent did not provide the Commission with any cases pertaining to similar acts of misconduct. However, the case of Parsons and the Southampton Police Force (1976), 1 O.P.R. 302 (OCCPS) is worthy of our attention. That officer was a member of the Southampton Police Force and was convicted of discreditable conduct under the Act. The misconduct that was likely to bring discredit upon the force was his action in playing a practical joke on an innocent citizen.

58The officer had a citizen charged with theft and later caused a warrant for his arrest to be issued by a Justice of the Peace resulting in the citizen being brought to the police station. At trial, the Hearing Officer found the officer guilty of the offence and directed the officer be required to resign forthwith from the Southampton Police Force. On appeal, defense counsel argued amongst other things that it was merely a practical joke. The Commission upheld both the conviction and the penalty. Assuming that the conduct was in fact a practical joke, the officer's conduct brought, in view of the Commission, discredit upon the entire police force. Termination from employment is the ultimate penalty.

59However, there are clear distinctions between those circumstances and the conduct of Constables White and Reid. In the above case, the officer misused his position of authority as a police officer in the laying of the charge of theft against an innocent citizen. The officer completely abused the administration of justice, when after laying a false charge of theft, he deceived a Justice of the Peace to obtain the issuance of a warrant for the arrest of the citizen. Clearly, Constable White and Constable Reid did not misuse their position of authority as police officers and their actions did not result in abuse of the administration of justice.

60In Mason and the Hamilton-Wentworth Regional Police Service, the officer was charged with the offence of discreditable conduct given a penalty of reduction of rank for six months from first class constable to second class constable. He had made a death threat against a fellow superior officer in public. Both officers were off duty at the time, but the public knew that they were police officers. Constable Mason had twenty years of service with the force but had recently been disciplined for another incident of misconduct. The Commission upheld the penalty of a reduction in rank to second class constable for six months.

61Uttering a death treat is a serious offence. The misconduct of Constable White and Constable Reid while very serious, is of a different nature. However on the spectrum of offences and resulting penalties the Commission believes the misconduct of Officer White and Officer Reid does not equate or exceed the misconduct of uttering a death threat.

62Accordingly, based upon the Commission’s conclusions that the Hearing Officer did not give sufficient weight to the mitigating factors in favour of the two officers and further, given the comparative analysis of the penalty imposed for misconduct in other cases as set forth above, the Commission believes that the penalty imposed by the Hearing Officer i.e. reduction in rank from first class constable to second class constable for nine months was outside the appropriate range for which penalties should be imposed for conduct of this nature.

63Constable White and Constable Reid are both good officers who made a mistake. Their years of unblemished service, their performance evaluations and letters of support constitute strong evidence of their professionalism and the capacity to make a strong contribution to the Windsor Police Service and the Windsor community in general. They now have the opportunity to redeem themselves to demonstrate that this was a brief departure from an otherwise excellent service record.

64Accordingly the penalty is varied from a reduction in rank from first class constable to second class constable for a period of nine months against each officer to a reduction of rank from first class constable to second class constable for a period of four months against each officer.