ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE JOHN WALKER
Appellant
-and-
PEEL REGIONAL POLICE SERVICE
Respondent
DECISION
Panel: Murray W. Chitra, Chair Michele J. Shephard, Member
Hearing Date: Tuesday, July 11, 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:
Murray W. Chitra, Chair Michele J. Shephard, Member
Appearances:
Paul D. Stunt, Counsel for the Appellant Ian D. Scott, Counsel for the Respondent
Hearing Date: Tuesday, July 11, 2000
Constable John Walker appeals the penalty imposed by Superintendent Bernard Swain (the “Hearing Officer”) following a plea of guilty to a charge of discreditable conduct contrary to section 2 (1) (a) (ix) of the Code of Conduct contained in Regulation 123, R.R.O. 1998 (the “Code”). That penalty was dismissal unless the officer resigned within seven days.
Constable Walker also seeks an Order allowing the introduction of fresh evidence pursuant to section 70(5) of the Police Services Act, R.S.O. 1990, C. P.15 as amended (the “Act”) and section 13 of the Rules of Practice of the Ontario Civilian Commission on Police Services (the “Rules”).
Background:
The facts giving rise to the disciplinary action against Constable Walker are largely without dispute.
Constable Walker went to a bar in the City of Kitchener in the early morning hours of July 26, 1998. He was off duty. He drank with some acquaintances. A woman at a neighboring table left her purse so she could dance. Constable Walker was seen standing near the purse. Shortly after that, Constable Walker was observed in a stall in the men’s washroom removing money from the purse and putting it into his pocket.
Police were called and, following an investigation, Constable Walker was charged with the offences of Theft Under $5,000 contrary to section 334(b) of the Criminal Code of Canada and Possession Under $5,000 contrary to 355(b). The amount of money in question was $79.15.
Constable Walker appeared before Mr. Justice Hearn of the Ontario Court of Justice. He pled “not guilty” to both charges. After hearing a number of witnesses including Constable Walker, Mr. Justice Hearn concluded that Constable Walker had taken the purse from the neighboring table.
Mr. Justice Hearn rejected Constable Walker’s explanation that he had found the purse and was looking through it to find the owner’s identification. Mr. Justice Hearn found that Constable Walker was in fact “rifling” through the purse and stole money from it. Accordingly, on February 19, 1999 he found Constable Walker guilty of both Theft and Possession Under.
Subsequently Mr. Justice Hearn stayed the charge of Possession Under and imposed an absolute discharge for the Theft Under. There was no appeal filed.
The Hearing:
As a result of these events Constable Walker was charged with discreditable conduct. The essential allegation arose from the fact that Constable John Walker had been found guilty of the Criminal offence of Theft Under. On Monday August 16, 1999, he appeared before the Hearing Officer and entered a guilty plea.
At that proceeding, Mr. Scott as Prosecutor tendered a certificate of finding of guilt with respect to the two Criminal Code charges. Mr. Scott also tendered a copy of the judgement of His Honour Judge Hearn dated February 19, 1999. Given these documents and the acknowledgement of Constable Walker’s counsel, Mr. Burke, the plea of guilty was accepted and entered on the record.
On October 13, 1999 following submissions with respect to penalty, the Hearing Officer ordered that Constable Walker be dismissed unless he submitted his resignation within seven days.
The Motion:
At the commencement of these proceedings Mr. Stunt, on behalf of Constable Walker, brought a motion to introduce fresh evidence.
Section 70(5) of the Act states that appeals to the Commission are on the record “but the Commission may receive new or additional evidence as it considers just.” The Act does not set out what factors are to be taken into account. However, the principles enumerated in Palmer v. Her Majesty the Queen (1980), 1979 CanLII 8 (SCC), 1 S.C.R 759 (S.C.C.) provide useful guidance. In brief these principles relate to due diligence, relevance, credibility and significance.
The fresh evidence that Mr. Stunt requested we receive is a one page report dated July 4, 2000 from a Halton agency known as ADAPT that provides alcohol and drug assessment and treatment. This agency had provided a report to the Hearing Officer at the original disciplinary proceeding. The document that Mr. Stunt proposed to admit spoke to treatment that Constable Walker has received since that time.
Mr. Scott, on behalf of the Respondent, argued that this report was not particularly relevant or useful and pointed to the fact such a document had already been considered by the Hearing Officer.
On the balance we determined that we would receive the report. The question of whether or not Constable Walker had a problem with alcohol and gambling and what steps he may have taken to deal with such concerns was an issue at the initial hearing. From the prospective of principles of sentencing it goes to a number of potentially important mitigating circumstances (i.e. handicap, the ability to reform or rehabilitate, and recognition of the seriousness of the transgression).
Given the penalty in question and the significance of the above-noted considerations we found that it would be just in the circumstance to receive the report dealing with Constable Walker’s recent treatment efforts.
The Appeal:
- Mr. Stunt, on behalf of the Appellant challenges the penalty imposed by the Hearing Officer. Specifically, he seeks an Order pursuant to section 70(6) of the Act that the decision of the Hearing Officer be revoked and a lesser penalty be imposed.
Appellant’s Position:
In support of this position, Mr. Stunt makes several arguments. In summary, he suggests that the Hearing Officer erred by:
placing reliance on a Victim Impact Statement submitted by Staff Superintendent Banting. This document portrayed the Peel Regional Police Service as the “Victim” of Constable Walker’s actions.
concluding that Constable Walker’s credibility would be brought into question in future cases where he was called upon to testify.
making findings that:
a) the Appellant’s actions were premeditated given that the trial Judge described it as “a moment of stupidity” and as an “isolated incidence”; and
b) the Appellant used his position as a police officer to falsely claim under oath before Mr. Justice Hearn that he lacked criminal intent and essentially committed the offence of “perjury”.
failing to recognize the distinction between a finding of guilt resulting in an “absolute discharge” and a finding of guilt resulting in a “conviction”.
concluding that lack of remorse, i.e. failure to “make a clean breast of it” was to be regarded as an aggravating factor and indicative of a defiant attitude.
Finally, Mr. Stunt argues that the Hearing Officer failed to consider the appropriate criteria for imposing disciplinary penalties established by appellate authorities.
In support of these positions Mr. Stunt brings a number of cases to our attention. They include: R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.), College of Physicians and Surgeons of Ontario v. Gillen (1990), 1990 CanLII 6710 (ON CTGD), 1 O.R. (3d) 710 (Ont. C.A.), Regina v. A (K) (1990), 1999 CanLII 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A), Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (OCCPS), Schofield and Metropolitan Toronto Police (1984), 2 O.P.R. 613 (OPC), McCoy and Ontario Provincial Police (1989), 2 O.P.R. 832 (OPC), Aujila and Ontario Provincial Police (1997), 3 O.P.R. 1152 (OCCPS), Willis and London Police Service (1997), 3 O.P.R. 1203 (OCCPS), R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 138 C.C.C. (3d) 340 (Ont. C.A.), Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) and R. v. Barnes (Docket C26957, Ont. C.A., Sept. 13, 1999).
As well, he made reference to Spizziri and Ontario Provincial Police (1988), 2 O.P.R. 799 (OPC), Guenette and Ottawa-Carleton Regional Police Service (unreported, July 21, 1998) and Matthews and Niagara Regional Police Service (1977), 1 O.P.R. 350 (OPC).
Respondent’s Position:
Mr. Scott, on behalf of the Service takes the position that the Hearing Officer properly applied the criterion for imposing disciplinary sanctions and had ample evidence before him to conclude that Constable Walker was unfit for service as a police officer.
Specifically, he states that the Hearing Officer clearly understood his role and did not place inappropriate reliance on Superintendent Banting’s Victim Impact Statement.
Mr. Scott argues that the fact that Constable Walker testified at his criminal trial and was found guilty speaks clearly to both his veracity and trustworthiness in general. He suggests that this cannot help but render any subsequent testimony by Constable Walker in a court of law suspect. He argues that any cross-examiner is entitled to question a witness about prior incidents of misconduct affecting credibility arising from related court proceedings.
Mr. Scott argues that there was sufficient evidence to permit the Hearing Officer to conclude that the actions of Constable Walker were “pre-meditated” and that he lied under oath and abused his position as a police officer when he attempted to justify his conduct to Mr. Justice Hearn (i.e. that his instinct as a police officer led him to look through the purse). Given the fact that Constable Walker was found guilty of Theft he suggests that there can be no other reasonable conclusion. He notes that at no time did the Hearing Officer use the term “perjury” in his decision.
Mr. Scott suggests that the Hearing Officer properly understood the distinction between a finding of “guilt” and the registering of a “conviction” in the context of criminal proceedings. He argues that the important principle to be recognized in the imposition of an employment related sanction is the underlying act of dishonesty itself.
He argues that the Appellant, by his position, continues to reject the criminal court’s conclusion that he stole the purse and obviously cannot express remorse over an act that he does not accept. He suggests that this means that the Appellant either does not appreciate the criminality of his act or in the alternative continues to lie about his involvement.
Overall, he argues that the Hearing Officer has properly applied the relevant principles for the imposition of disciplinary sanctions and that the Commission ought not to interfere with the disposition.
In support of these positions Mr. Scott draws our attention to the following authorities: R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.), R. v. Gassyt and Markowitz (1998), 1998 CanLII 5976 (ON CA), 127 C.C.C. (3d) 546 (Ont. C.A.), Re:Trumbley and Pugh (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 (Ont. C.A.), Willis and London Police Service, Spizzirri and Ontario Provincial Police, Guenette and Ottawa-Carleton Regional Police Service, Kunkel and Ontario Provincial Police (1992), 2 O.P.R. 930 (OCCPS), Matthews and Niagara Regional Police Service, Hinds and Ontario Provincial Police (1990), 2 O.P.R. 880 (OPC) , R. v. Barnes, Bright v. Konkle (Ont. Bd. Inq., March 17, 1997) and “Annotated Police Services Act” (Ceysenns and Dunn, Earlscourt Legal Press Inc., 1998) pp. 148-152.
Decision:
The circumstances giving rise to this case are troubling.
In the early hours of July 26, 1998 Constable John Walker was off duty. He was drinking in a bar in the City of Kitchener with friends. Over the course of the evening he had at least six drinks. Shortly before closing time a purse went missing from a neighboring table.
The manager of the bar entered the washroom at 0250 hours to make sure it was empty. He noticed feet pointing at an unusual angle in a closed cubicle at the far end of the washroom. He entered the neighboring stall, climbed up and looked over. He saw Constable Walker sitting on the back of the toilet with a purse in his hands. According, to the manager:
The gentleman was going through the purse and he was taking some money out which appeared to be a 20 dollar bill and a couple of other bills with it, and some change which was actually dropping on the checker plate. It’s very loud when you drop it on the checker plate. So I looked, I looked down and I said “Hey what are you doing guy?” and he put the money in his pocket and he looked at me and said “nothing”. Then I said “you’d best be getting out of there and I’ll be holding you until the police come.”
Constable Walker was arrested by members of the Waterloo Regional Police Service, searched and charged with both Theft and Possession Under. As noted earlier, the amount in question was $79.15.
Constable Walker pled not guilty to the charges. That was his right. At the criminal trial he testified that he found the purse in the washroom and was looking through it for identification because of his “instinct as a police officer”. The trial judge concluded:
I do not know why he would be doing that. I would have thought the instinct of a police officer would be to do his business in the bathroom and remove the purse and hand it over to someone in authority in the bar. This is particularly true when you think that on his own evidence he had entered the bathroom when there was a doorman right out front within three feet outside the bathroom, so he knew and he makes a comment about that as he entered the bathroom he noticed the doorman. So the doorman who was a person in authority and at least capable of receiving the purse is a few feet away.
The trial judge expressed concern with both the ‘reliability’ of Constable Walker’s evidence and his ‘carelessness with the truth’. He indicated that he was satisfied beyond a reasonable doubt that Constable Walker stole the purse, rifled through it, and “at the time he was apprehended he was in a position where he was putting money in his pocket”.3 He found him guilty of both Theft and Possession Under. As noted earlier the Possession Under charge was subsequently stayed and an absolute discharge entered on the Theft charge.
These events lead Constable Walker before the Hearing Officer and resulted in a decision on October 13, 1999 that he either resign within seven days or be dismissed. The issue for this appeal is the appropriateness of this disposition.
In Williams and Ontario Provincial Police the Commission identified three key elements to be taken into account when imposing 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.
Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach to the conduct in question.
There are also other factors which can be relevant, either mitigating or aggravating the penalty depending on the particular conduct in question. These include the officer’s:
• employment history and experience,
- recognition of the seriousness of the transgression, and
• handicap or other relevant personal circumstances.
As well when imposing penalty it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency (Schofield and Metropolitan Toronto Police).
It is the responsibility of the Hearing Officer to ensure that these considerations are properly taken into account. It is not our function to second-guess the Hearing Officer’s decision particularly in those cases where we might have imposed a different disposition (Bright v. Konkle). Rather, it is our role to assess whether or not the Hearing Officer applied the correct principles and whether or not in the circumstances the penalty imposed is clearly or manifestly excessive.
There is no doubt that police officers, whether on or off duty, should not steal. Such behavior is serious discreditable conduct. Given the nature of their office, police officers must be held to a higher standard of conduct than members of the public. Over the course of a number of years Commission decisions have established the proposition that an appropriate penalty for a police officer who commits theft is dismissal (Spizziri and Ontario Provincial Police).
Recently, there have been two Commission decisions in which officers who had stolen and been dismissed have been reinstated. These are Guenette and Ottawa-Carleton Regional Police Force and Reilly and Brockville Police Service. These cases are not a departure from the principles established in cases such as Spizziri. Rather they stand for the proposition that in some situations significant mitigating factors can warrant the imposition of a penalty other than dismissal.
In Guenette the offence was the theft of $200 from an automated teller. The mitigating circumstances included employment history (16 years unblemished service), acknowledgment of responsibility (i.e. guilty plea and admission to diversion program), handicap (diagnosed depression) and strong support (i.e. a significant number of letters from fellow officers and citizens indicating a willingness to have the officer return to duty).
In Reilly the offence was shoplifting items worth $6.10 from Wal Mart. Mitigating factors included acknowledgement of responsibility (i.e. a guilty plea), handicap (diagnosed depression with extensive medical evidence of treatment, remission and positive prognosis), and strong support.
Such factors do not appear to exist in this case. At the time of the disciplinary hearing Constable Walker had approximately nine years of service. His record contains some commendations but also several disciplinary reports over the course of a number of years for tardiness. This has resulted in both delayed promotion and a conviction for neglect of duty on February 26, 1998. The penalty imposed was admonishment.
There has never been any acknowledgment of responsibility on the part of Constable Walker. The Hearing Officer made a point of noting in his decision that Constable Walker did not plead guilty in his criminal trial and in fact denied any culpability under oath. In our view Constable Walker was certainly entitled to plead not guilty at his criminal proceedings. The fact that he was found guilty after making such a plea does not give rise to an aggravating factor for disciplinary penalty purposes. Rather, Constable Walker is not entitled to the mitigation that a guilty plea or apology would warrant. This does not mean that other potentially mitigating factors can be considered.
There is no clear evidence of handicap. The record at the disciplinary proceeding hints at a possible problem with alcohol and gambling but there is no clear acknowledgement. The report from ADAPT submitted at the disciplinary hearing indicated that Constable Walker had been assessed, attended three individual counseling sessions and was on the waiting list for an eight week psycho-educational group. The Report concludes by stating that the assessment “would suggest that Mr. Walker should consider reducing his alcohol use and refrain from gambling”.
The subsequent report from ADAPT dated July 4, 2000, which we agreed to receive, indicates that Constable Walker had attended additional counselling sessions, the eight week program and was also participating in a weekly maintenance group. It concludes by stating that “Mr. Walker appeared to have no difficulty expressing a sound awareness of his problems related to his alcohol use and gambling. He reported that since he has been coming to ADAPT he has been abstaining from gambling and successfully reduced his alcohol use. He appears motivated to maintain these changes and advises that he is now wanting to also start work on abstaining from alcohol use.”
These efforts are certainly to Constable Walker’s credit. That being said, there was no medical evidence presented to either the Hearing Officer or to us that would clearly support the conclusion that Constable Walker has a problem with either the abuse of alcohol or gambling that would qualify as a handicap for the purposes of the application of mitigating principles.
Further, the record of the disciplinary hearing does not contain letters of support from fellow officers, supervisors or citizens such as were provided in Guenette. Such evidence can speak to the potential future usefulness of an officer were he or she permitted to remain with the Service.
It is suggested that fellow officers or supervisors were unwilling to come forward with such support given Staff Superintendent Banting’s Victim Impact Statement. This assertion is not supported by evidence.
As noted earlier, Staff Superintendent Banting in his capacity as Officer-in-Charge of Field Operations submitted the document on behalf of members of the Peel Regional Police Service and “the community they serve”. It expressed strong disapproval of Constable Walker’s actions and suggested that it had rendered him unfit to occupy the position of police officer. It further indicated that a practical matter the finding of guilt would make it impossible for him to be effective in court.
To our mind the submission of a Victim Impact Statement on behalf of the Service is a questionable practice. That being said, we note that the Hearing Officer indicates in his decision that he placed little weight on the Statement because in his view “such knowledge and conclusions must be those of the Hearing Officer himself since it is he who has been designated by the Chief to bring his knowledge and experience to bear”. We agree completely with this conclusion.
More to the point are the comments of the woman whose purse was stolen. In her Victim Impact Statement she wrote:
…When I first heard that it was in fact a police officer that had stolen my purse I was very shocked. How can he be expected to enforce the law when obviously he doesn’t know what it means. I’m speaking for myself and many others when I say I trust police officers to serve and protect. Now I feel like I cannot trust them because as soon as the uniform comes off they break the law. It is bad enough when just anyone breaks the law, but it makes it a million time worse when it’s a police officer who is suppose to protect us. I feel now, that I have very little to no trust for police officers.
It is obvious from the above that Constable Walker’s conduct has brought discredit and damage to the reputation of both the Peel Regional Police Service and other police officers. This is the essence of the allegation against him.
There was much discussion about the distinction between a finding of ‘guilt’ in the criminal context and a ‘conviction’. As well, there has been debate about the extent to which the finding of guilt could impair Constable Walker’s ability to offer credible testimony in court in the future or perform policing duties relating to missing money or property.
Even acknowledging the absence of a conviction in this case, it seems self-evident to us that a police officer who has been found guilty of a criminal offense going to honesty cannot help but be hindered in the effective completion of his or her duties. By this we refer to the whole range of responsibilities set out in section 42 of the Act.
Overall, we are satisfied that the Hearing Officer took into account the essential principles factors and imposed a penalty that was within the range previously established.
As noted above, we have some concern about the Hearing Officer’s apparent treatment of Constable Walker’s plea of ‘not guilty’ and denial under oath of responsibility in the criminal proceedings as an aggravating factor in sentencing. That being said, we are not satisfied in all of the circumstances that this resulted in a penalty which was clearly or manifestly excessive.
It is evident that Constable Walker has committed a criminal act that has brought discredit to his service. It cannot be seen other than as a serious matter. His work history is not exceptional or unblemished. There is no clear medical evidence of handicap. There is no evidence from fellow workers or supervisors of reform, rehabilitation or future continued usefulness. In short, there are insufficient mitigating factors to warrant altering the penalty imposed
Accordingly, the appeal is dismissed and the penalty upheld.
DATED THIS 6th DAY OF NOVEMBER, 2000.
Murray W. Chitra Michele J. Shephard
Chair, OCCPS Member, OCCPS