Constable Steven Carson v. Pembroke Police Service, 2001 CanLII 56731

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE STEVEN CARSON

Appellant

-and-

PEMBROKE POLICE SERVICE

Respondent

DECISION

Panel: Frederic G. Farrell, Q.C., Member Benson Lau, M.D., Member

Hearing Date: March 26, 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 Benson Lau, M.D., Member

Appearances:

William R. MacKenzie, Counsel for the Appellant Lynda A. Bordeleau, Counsel for the Respondent

Hearing Date: March 26, 2001

1Constable Steven Carson appeals the penalty imposed upon him by Neil J. Sweeney (the “Hearing Officer”) following a plea of guilty to a charge of discreditable conduct contrary to subsection 2(1)(a) of the Code of Conduct contained in Regulation 123, R.R.O. 1998 (the “Code”).

2The penalty in question consisted of a reduction in rank from first-class constable to fourth-class constable for a period of one year. Constable Carson’s return to first-class constable was ordered to be in accordance with the provisions of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act”) and the promotional procedures of the Pembroke Police Service (the “Service”).

Background:

3Constable Carson is a member of the Pembroke Police Service. At the time of the events giving rise to these proceedings he had been with the Service for eleven years.

4In 1989, Constable Carson married P. She had two children from a previous marriage. Constable Carson and P separated in September 1998. In February of 1999 P developed a relationship with an individual named D who began living with P and her children.

5On May 17, 1999 C (one of P’s children, aged 20) had an argument with D. C went tothe Pembroke Police Station and told her stepfather, Constable Carson, who was on duty at the time, of an alleged assault upon her in her bedroom by D.

6Constable Carson, armed and in full uniform, drove a police cruiser to his wife’s residence wherein there was an emotional exchange between him and D. Constable Carson uttered a threat to D consisting of words to the effect, “If you ever go near my daughter I will kill you, do you understand me, I will kill you.” (It should be noted that Constable Carson contended, throughout his trial and even at the sentencing hearing before the Hearing Officer, that he actually had said something different, words to the effect “If you go into her bedroom again you’ll deal with me. If I was threatening you, I would have said I was going to kill you.”

7Following a complaint by both P and D and a subsequent investigation, Constable Carson was charged on May 17, 1999 with uttering a threat to cause death to D contrary subsection 264.1 (1)(a) of the Criminal Code of Canada. Constable Carson pled not guilty. At trial on May 3, 2000, he was found guilty. Mr. Justice D. Dempsey sentenced him to eighteen months probation.

8Given the above, Constable Carson was charged with discreditable conduct. The specific allegation against him read:

On March 2, 2000 you were found guilty of the criminal offence punishable by summary conviction of Threatening contrary to section 264.1(1)(a) of the Criminal Code of Canada and convicted of the said offence on May 3rd, 2000, thereby committing an offence against discipline, namely Discreditable Conduct, contrary to Ontario Regulation 123/98 Part V Code of Conduct, subsection 2(1)(a)(ix), which action constitutes misconduct pursuant to section 74(1)(a) of the Police Services Act of Ontario.

The Hearing:

9Constable Carson appeared before the Hearing Officer on September 26, 2000 and pled guilty. His counsel, Richard A. Reimer, sought a maximum penalty of 10 days. In contrast Lynda A. Bordeleau, the Prosecutor, sought a penalty consisting of a reduction in rank from first-class to fourth-class constable for one year with return to first class

constable in accordance with the provisions of the Act.

10In his decision, the Hearing Officer reviewed the evidence before him. He stated that all police officers have an obligation always to act in the public interest and for the public good and accordingly are held to a more rigorous standard of conduct. He noted that it was important to evaluate the officer’s conduct in the context of the impact it made on his office, integrity of the police profession generally and on his own police service.

11In assessing the actual penalty to be imposed, he noted the four areas, which are historically considered i.e. the seriousness of the offence, general deterrents, specific deterrents and rehabilitation. He also stated that criminal acts by police officers are viewed on the higher end of the scale of serious offences. In addition, he recognized that mitigating factors were also to be considered i.e. work history, acceptance of responsibility and other special circumstances that might be involved.

12The Hearing Officer imposed a penalty wherein Constable Steven Carson was reduced to fourth-class constable in status and remuneration for a period of one year and a return to service would be in accordance with the provisions of the Act and the promotional procedures of the Service.

The Appeal:

13The Appellant seeks on Order from the Commission reducing the penalty imposed by the Hearing Officer to that of a demotion to second-class constable for a period of one year and thereafter a return to first-class constable with no conditions attached.

Appellant’s Position:

14William R. MacKenzie, Counsel for the Appellant, argued that the penalty imposed was harsh and excessive. He raised four specific questions or issues. They were:

15Did the Hearing Officer err in principle by failing to give any weight or treat as a mitigating factor the guilty plea of the appellant?

2. Did the Hearing Officer err in principle by treating as an aggravating factor the appellant’s defence strategy (right to make full answer and defence) at the criminal trial?

3. Did the Hearing Officer err in principle by failing to follow prior decisions of the Ontario Civilian Commission and Police Services (the “Commission”) and thereby create a disparity in sentencing?

4. Did the Hearing Officer impose a penalty that was harsh and excessive given the employment record, the character of the Appellant and the total financial cost of the demotion of the Appellant?

16With respect to the first issue Mr. MacKenzie stated that the Hearing Officer committed an error in principle by both failing to take into account and failing to give sufficient weight to Constable Carson’s guilty plea. He argued that a guilty plea, except in extreme cases, should be recognized as an indication of both remorse and acceptance of responsibility. He noted that the Hearing Officer had specifically stated: “No weight is given in respect to mitigating penalty on that point” i.e. Carson’s plea. As such, the Hearing Officer committed an error of principle.

17With respect to the second issue Mr. MacKenzie stated that the Hearing Officer committed an error when he treated Carson’s defence strategy at his criminal trial as an aggravating factor. He argued that the Hearing Officer during sentencing both reviewed and relied upon the Criminal Court Judgment of Justice Dempsey who noted the continued denial of responsibility by Constable Carson and that at the sentencing hearing, failed to accept Constable Carson’s plea of guilty to the charge of discreditable conduct as an acceptance of responsibility. He specifically noted that the Hearing Officer had stated that he attributed little weight to the issue of acceptance of responsibility and that Constable Carson’s denial had become an aggravating factor.

18Accordingly, Mr. MacKenzie argues that Constable Carson’s penalty was more severe because of his defence strategy at trial and was an error in principle on the part of the Hearing Officer. He further argued that the Commission can interfere with a disposition when an error in principle has been committed (a failure to take into consideration a relevant factor, or failing to give sufficient weight to a relevant factor and over emphasizing relevant factors).

19With respect to the third issue, Mr. MacKenzie argued that the penalty imposed by the Hearing Officer was not justified and was outside an acceptable sentencing range based upon prior decisions of the Commission.

20With respect to the fourth issue, Mr. MacKenzie argued that the Hearing Officer gave insufficient weight to the employment record and character of Constable Carson. Further, given the enormous financial impact of the penalty potentially as high as $27,944.00 of lost income (if it, in fact, would take four years for Constable Carson to return to a first-class constable) the penalty was both harsh and excessive under the circumstances.

21In support of these arguments counsel for the Appellant draws our attention to the following cases: R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (Ont. C.A.), R. v. Santos [1993] O.J. No. 2539 (Ont. C.A.), R. v. K. A. (1999), 1999 CanLII 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.), R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.), R. v. Hummel (1987), 1987 CanLII 4075 (ON HCJ), 60 O.R. (2d) 545 (Ont. H.C.J.) and R. V. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (Ont. C.A.).

Respondent’s Position:

22Lynda A. Bordeleau, on behalf of the Respondent, rejected the four issues raised by the Appellant. With respect to the first issue, Ms. Bordeleau stated that the Hearing Officer did address and give weight to the appropriate sentencing principles. She argued that a mitigating factor can be an acknowledgement of responsibility on the part of the officer. However, she pointed out that Constable Carson did not, even at the sentencing hearing, accept responsibility for his actions that gave rise to the charge of discreditable conduct.

23Moreover, she noted that proof of discreditable conduct is by way of tendering a Certificate of Conviction from the criminal court and no direct evidence was required. Accordingly, she suggested that this fact diminishes the weight of a guilty plea as a potential mitigating factor. Moreover, she argued that there is no mitigating feature to the guilty plea in terms of saving administration expenses associated with the conduct of the hearing and the calling of witnesses to testify.

24With respect to the second issue, Ms. Bordeleau acknowledged that at the criminal trial an individual does have the right to enter a plea of not guilty and proceed with the presumption of innocence. However, she argued that during the disciplinary process Constable Carson continued to maintain his position and did not accept any responsibility for his actions. Accordingly, the Hearing Officer concluded that this absence of a mitigating factor had become an aggravating factor. Moreover, she concluded that the Hearing Officer, having heard the direct evidence of Constable Carson and others, was in the best position to assess the evidence and impose the appropriate sentencing penalty.

25With respect to the third issue, Ms. Bordeleau argued that the Hearing Officer did follow the usual principles in assessing the appropriate penalty i.e. the seriousness of the offence, general deterrence, specific deterrence and rehabilitation. She further points out that in some cases the seriousness of the misconduct may outweigh the benefit of certain mitigating factors i.e. the employment history. She argued that the Hearing Officer considered the evidence before him, the authorities of the Commission and followed relevant principles with respect to sentencing.

26With respect to the fourth issue, Ms. Bordeleau argued that the conduct of the officer was serious and this was a fundamental consideration of the Hearing Officer. In short, criminal offences committed by Police Officers against individuals are at the high end of the spectrum when imposing a penalty and may merit dismissal in some cases. Moreover, there was the issue of the damage to the reputation of the Service to be considered and the impact made on the small community of Pembroke. She emphasized that both of the foregoing considerations were a deep concern to the Hearing Officer.

27She concluded that the Hearing Officer had considered the totality of the evidence, weighed the appropriate sentencing factors and gave consideration to previous decisions of the Commission. Based upon the foregoing the penalty imposed by the Hearing Officer was appropriate.

28In support of these arguments counsel for the Respondent drew our attention to the following cases: Schofield and Metropolitan Toronto Police (1984), 2. O.P.R. 613 (OPC), Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS), Morden and Peel Regional Police Service (1997), 3 O.P.R. 1140 (OCCPS), Gulliver and Brantford Police Service (1997) 3 O.P.R. 1175 (OCCPS), Mason and Hamilton-Wentworth Regional Police Service (March 9, 2000, OCCPS), Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (OPC), King and Metropolitan Toronto Police Service (1992), 2 O.P.R. 923 (OCCPS), Dempsey and Waterloo Regional Police Service (1991), 2 O.P.R. 909 (OCCPS), Batorski and Niagara Regional Police Service (1982), 1 O.P.R. 569 (OPC), Simmons and Thunder Bay Police Service (OCCPS, March 24, 1998), Ozon and Ontario Provincial Police (March 6, 1998, OCCPS),

29Hambleton and Ontario Provincial Police (1969), 1 O.P.R. 24 (OPC), and Walker and Peel Regional Police Service ( November 6, 2000).

The Decision:

30Constable Carson was charged with discreditable conduct contrary to subsection 2(1)(a)(ix) of the Code. This provision makes it a disciplinary offence for an officer to “be guilty of an indictable criminal offence or a criminal offence punishable upon summary conviction”. As noted earlier, Constable Carson had been found guilty of the criminal offence punishable by summary conviction of Threatening contrary to section 264.1(1)(a) of the Criminal Code of Canada.

31Constable Carson pleaded guilty to the disciplinary offence and was found guilty by the Hearing Officer of discreditable conduct on September 26, 2000. The following day the Hearing Officer imposed the penalty of a reduction in rank from first-class constable to fourth-class constable in status and remuneration for a period of one year and in addition imposed a requirement that his return to first class constable would be in accordance with the provisions of the Act and the promotional procedures of the Service.

32The Appellant’s appeal was with respect to penalty only. He raises four specific questions or issues. We will address those issues as follows:

1. Did the Hearing Officer err in principle by failing to give any weight or treat as a mitigating factor the guilty plea of the Appellant?

33The Appellant argued that the Hearing Officer failed to give any weight or treat as a mitigating factor the guilty plea of Constable Carson to the charge of discreditable conduct. The Appellant noted that the Hearing Officer stated: “As pointed out by the Prosecutor, all that needed to be done was to file Exhibit “1” (the Certificate of Conviction) and the case would have been made. No weight is given in respect to mitigating penalty on that point”.

34The Appellant argued that a guilty plea should always be considered a mitigating factor (save and except in extreme cases) and be recognized as both an indication of remorse and an acceptance of responsibility. The Respondent argued to the contrary and suggested that there is no mitigating factor to the guilty plea in terms of saving administrative expenses associated with conducting a hearing and the witnesses not having to testify. In addition, the Appellant argued, both at his trial and at the Disciplinary Hearing, Constable Carson never accepted responsibility for his actions.

35We have considered the authorities referred to by both counsel for the Appellant and the Respondent. We have no doubt that a guilty plea should be recognized as a mitigating factor and taken into account along with other factors in determining an appropriate penalty. This was perhaps best expressed by the Ontario Court of Appeal in R. v. Santos at page 1 where the court held: “The Appellant pleaded guilty on all counts but this significant mitigating factor was dismissed by the trial judge as being inevitable because of the overwhelming evidence against him. With respect, this is an error on his part. We do not subscribe to the proposition that there should be less weight to a plea of guilty from a person who has been inescapably caught.”

36Accordingly, if the guilty plea is to be considered a mitigating factor, the only issue is the weight to be given under the circumstances. Nevertheless, other mitigating factors would also be given appropriate consideration i.e. employment history, experience, recognition of the seriousness of the offence, handicaps or other relevant personal circumstances. The Hearing Officer could then make a judgment as to what weight would be given to each factor including the guilty plea. However, in the case before us the Hearing Officer specifically stated no weight would be given to Constable Carson’s plea of guilty as a mitigating factor. In our opinion this was incorrect and we have concluded the Hearing Officer made an error in principle on this point.

1. Did the Hearing Officer err in principle by treating as an aggravating factorthe Appellant’s defence strategy (right to make full answer and defence) atthe criminal trial?

37The Appellant argued that the Hearing Officer disregarded and dismissed Constable Carson’s acceptance of responsibility for his actions which, he asserted, was inherent in Constable Carson’s plea of guilty to the charge of discreditable conduct. Moreover, it was argued that the Hearing Officer was in error by treating the officer’s defence strategy at trial as an aggravating factor at the sentencing hearing. The Respondent argues that Constable Carson has never taken any responsibility for his actions.

38While recognizing an individual’s right to enter a plea of guilty at trial, during the disciplinary process the officer had maintained his position regarding the events in question including not uttering a death threat against the complainant. Accordingly, the Respondent states that the evidence supports the Hearing Officer’s finding that the absence of a mitigating factor had, in fact, become an aggravating factor.

39We are of the opinion that Constable Carson’s plea of guilty at trial and his personal belief of innocence both at trial and throughout the disciplinary process should not have been considered as an aggravating factor by the Hearing Officer in determining an appropriate penalty. As was stated by the Ontario Court of Appeal in Regina. v. Kozy at page 500 “The right to full answer and defence is a long standing part of the common law right to a fair trial and has been incorporated within the principles of fundamental justice in section 7 of the Canadian Charter of Rights and Freedoms and a fair hearing in section 11(d) of the Charter. Any perceived impingement upon the matter in which the defence is to be conducted, such as fear that a particular tactic might induce a heavier penalty, would impair the right to a full answer and defence.”

40Moreover, in R. v. K.A. the Ontario Court of Appeal held that the trial judge erred in principle in treating the Appellant’s protestations of innocence as an aggravating factor. The Court of Appeal recognized that the Appellant was not entitled to any reduction in a sentence because of a demonstration of any remorse. However, an increased sentence is not justified because the accused has pleaded not guilty, put in motion a full trial, and maintained his innocence.

41Again, in Walker and Peel Regional Police Service, the penalty imposed by the Hearing Officer was appealed on a charge of discreditable conduct. The officer had pled not guilty to the charge of Theft Under $5000.00 and Possession Under $5000.00 contrary to the Criminal Code of Canada but was found guilty at trial. Thereafter, the presiding justice stayed the charge of Possession Under and imposed an absolute discharge for the charge of Theft Under. At the disciplinary hearing the officer pled guilty to the charge of discreditable conduct but never acknowledged his responsibility. The Hearing Officer viewed this as a lack of acceptance of responsibility and as a lack of remorse and regarded it as an aggravating factor.

42The Commission at page 8 of this decision stated, “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 potential mitigating factors cannot be considered.”

43Accordingly, the Hearing Officer should not have concluded that Constable Carson’s refusal to accept responsibility for his actions was an aggravating factor in the imposition of the penalty. In other words, the Hearing Officer could have refused to reduce the penalty of Constable Carson by reason of his refusal to accept responsibility but he should not have considered such refusal as an aggravating factor and therein increased the penalty. Accordingly, we have concluded that the Hearing Officer made an error in principle in this regard.

2. Did the Hearing Officer err in principle by failing to follow prior decisions of the Commission and thereby create a disparity in sentencing?

3. Did the Hearing Officer impose a penalty which was harsh and excessive given the employment record, the character of the Appellant and the totalfinancial cost of the demotion of the Appellant?

44We have decided to consider the final two issues simultaneously since the issues go to the root of the decision making process. In this way we can analyze the decision of the Hearing Officer and his thought process in formulating the penalty which must be both appropriate and fair.

45The Commission is charged with a specific role in reviewing penalties. Its authority to review penalties is statutory in nature under the Act and the decision reviewing process is guided by relevant prior decisions of the Commission for the purpose of achieving consistency and sentencing. Above all, the penalty should be both fair and appropriate based upon the prevailing fact situation.

46The test to be applied in reviewing penalties was set out in Reilly v. Brockville Police Service (1997), 2 O.P.R. 1163 (OCCPS). At page 1169 of that decision the Commission stated:

In Williams and OPP (December 4, 1995, OCCPS) 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.”

47Further, the Commission, as stated above, has authority to vary a penalty imposed by a Hearing Officer under certain specific circumstances. In Gibson and the Waterloo Regional Police Service the Commission stated at page 709:

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 measures 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.

48Again at page 710

The reasons cited for review of the penalty, namely, Constable Gibson’s record of service, the penalty requested by Inspector Hodgkiss, the apologies made by Constable Gibson and the plea of guilty are matters which should have been considered by the Board in their mitigation of the penalty. We have no evidence that they did not do so.

This Commission is not convinced that the mitigated penalty is unreasonable nor that it amounts to an injustice.

If such were the case we would have a responsibility to vary the punishment imposed in accordance with s. 58(10) (c) of reg. 791/80.

However, we do not interpret this section to impose a responsibility on the members of this Commission to substitute their thoughts for those of the Hearing Officer or Board of Commissioner of Police when we believe that all the relevant matters have been fairly and impartially considered by those bodies.

49Accordingly, the Commission is authorized to vary a penalty if it is unreasonable or amounts to injustice or if all relevant matters here have not been fairly and impartially considered.

50It could be argued and has been argued in this case that the Hearing Officer being situated in Pembroke is in a better position to know the concerns, needs, and requirements of the Service and Pembroke itself. However, this does not diminish the responsibility of the Commission to ensure that the penalty is both appropriate and fair.

51All of the principles cited above, form part of the test in reviewing the decision of the Hearing Officer and now will be applied to our fact situation. We have carefully considered the reasons for the penalty contained in the decision of the Hearing Officer.

52The Hearing Officer did specifically point out and discuss the established principles to be applied in sentencing i.e. the seriousness of the offence, specific deterrence, general deterrence and rehabilitation. The Hearing Officer recognized that the conduct of Constable Carson was very serious. We concur with his assessment. The officer uttered a death threat against an individual while on duty, in full uniform, armed, and in the presence of others. He also travelled to the scene of the incident i.e. the home of his estranged wife in a marked police vehicle.

53With respect to specific deterrence, the Hearing Officer fully recognized that the seriousness of the misconduct of Constable Carson had to be met with serious consequences. The Hearing Officer emphasized that the public have the expectation that fully trained police officers will apprehend offenders and not become offenders themselves. While Officer Carson found himself in a highly stressful situation, he as a police officer has specific training and was expected to conduct himself in the public interest for the public good at all times. As the Hearing Officer properly stated in his decision: “If the public cannot count on the police to calm stressful situations who then do they call upon for assistance.” The Commission concurs with the Hearing Officer in this regard.

54With respect to general deterrence the Hearing Officer believes that the Service in general did not require a reminder that criminal offences would not be tolerated by both the police administration or the general public. By placing a strong emphasis on specific deterrence and the resulting penalty he believed that a clear message would then be sent to the entire Service that serious misconduct would be met by serious consequences.

55However, with respect to rehabilitation, while the Hearing Officer raised this issue, we believe that the Hearing Officer failed to give adequate and sufficient consideration and weight to the issue of rehabilitation of Constable Carson. In our opinion, this was a significant flaw in his decision. We believe that rehabilitation is a very significant factor to be taken into consideration when imposing a penalty, especially, when the offender has a prior unblemished employment record. Unless the officer is beyond rehabilitation (in which case he would be a candidate for dismissal) the door should be kept open for the officer to be rehabilitated.

56Accordingly, the penalty should be tailored to provide him with the opportunity to do so. The penalty imposed (i.e. reduction in rank from first class constable to fourth-class constable in status and remuneration for one year with return to first-class in accordance with the provisions of the Act and promotional process) is the most serious penalty next to dismissal. Accordingly, this penalty would seem to be emphasizing punishment and deterrence with little or no regard to rehabilitation. There appears to be a significant and unfair imbalance to the factors determining the penalty by the Hearing Officer

57The Hearing Officer had the opportunity and did consider several mitigating factors pertaining to Constable Carson including his employment records, evaluation reports and the direct evidence of witnesses at the sentencing hearing. The Hearing Officer did consider and review his employment record and made specific mention of comments contained therein, i.e.:

• commended for the manner in which he consistently performed his duties;

• continues to perform his duties in a highly satisfactory manner;

• excellent attitude and work ethics;

• uses good judgment;

• competent and effective; and

• quality of investigation has been an example for others.

58The Hearing Officer specifically stated that he believed that overall the reports as well as the evidence of the witnesses provided an excellent snapshot of a competent, enthusiastic, community-oriented officer. In other words, the reports reflected an officer who was competent and had the ability to effectively fulfil his duty as mandated by the Service. Having said and recognized the above talents and the potential in Constable Carson, it seems to us that the Hearing Officer failed to give sufficient weight to the mitigating factors and also to the principle of rehabilitation. By his own assessment, the Hearing Officer recognized Constable Carson as both competent and capable to fulfil his duties.

59The direct evidence of the two witnesses i.e. Kenneth Gauthier and Clare Gagne was considered by the Hearing Officer and we found to be significant in reviewing this penalty.

60The Hearing Officer specifically made comment in his decision that the witness Kenneth Gauthier who had known Constable Carson since birth had no concerns about Carson’s ability to act as a police officer. Another witness, Clare Gagne, a retired Court Official with the Service having been fully aware of the incident involving Constable Carson did not think that Constable Carson was less suitable to be a police officer. In fact Mr. Gagne wondered if he himself would have been able to control himself given the circumstances surrounding the incident. He described D as “a very obnoxious individual”. The evidence of these witnesses strengthened our conclusion that the penalty should have been tailored with the emphasis on rehabilitation and not just on an emphasis with respect to punishment. The penalty should reflect the seriousness of the misconduct but at the same time be tailored to reform the officer. There must be a proper balance based upon the relevant facts and the mitigating factors.

61This brings us to a consideration of the state of mind of the victim and the role of the victim in this particular fact situation. At the time of the incident, D was a live-in boyfriend of P, the wife of Constable Carson, and was the recipient of the death threat from Constable Carson on the evening in question. The impact on the victim and his participation in the incident is worthy of our consideration in weighing the degree of punishment which should be imposed with respect to this offence. The Reasons for Sentence by Mr. Justice D. Dempsey was filed with the Commission and formed part of the Record of the Respondent. At page 22 he stated: “The evidence also indicates, in my opinion, that during the incident, that except the contact with the complainant which the accused allegedly flicked a cigarette out of the complainant’s mouth after the complainant had blown smoke in his face, there was no other contact whatsoever between the complainant and the accused. At no time did the accused threaten to or in any way use or attempt to use his sidearm during the incident.”

62During this very heated verbal exchange between Constable Carson and D, the blowing of smoke in the Officer’s face no doubt had a direct effect on heightening the tensions during this incident. It also reflects that D provoked Constable Carson. Provocation can be considered in our determination of an appropriate penalty. There is no question that the officer was provoked in this highly emotional incident. He was provoked into a behaviour which was totally out of character for him based upon his unblemished record and his evaluation reports. Most importantly, the officer did not use or attempt to use his sidearm. While we must consider what the officer did, we should also acknowledge what the officer did not do under the circumstances. If the officer had used his weapon in any manner in conjunction with the death threat, we would not be so disposed to consider any reduction in the penalty.

63As stated above, the penalty must be tailored to both punish and deter while not causing undue or excessive hardship. At the same time, the penalty must be sufficient to demonstrate that any reoccurrence will not be tolerated. It is of the utmost importance that a proper balance be achieved. Above all, the penalty must be consistent with similar decisions in order to maintain consistency in sentencing. While fact situations may 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. For this comparison we will examine a case which counsel for the Appellant and Respondent have cited in their Brief of Authorities filed with the Commission and which both counsel for the Appellant and Respondent argued at the appeal hearing.

64The most relevant case on point is Mason and the Hamilton-Wentworth Regional Police Service. Constable Mason was charged with the offence of discreditable conduct and was given a penalty of a reduction in rank for six months from first-class constable to second-class constable with a return to first-class constable at the end of six months. He also had made a death threat but in this situation it was against another fellow senior police officer and in public. Both officers were off duty at the time but the public present at the time knew that they were both police officers. Constable Mason had twenty years of service with the Hamilton-Wentworth Regional Police Service but had recently been disciplined for another incident of misconduct. The Commission upheld the penalty of reduction of rank to second-class constable for six months. Finding the penalty neither excessive or unreasonable and to be within the acceptable range.

65Counsel for the Appellant emphasized the similarity to our fact situation while Counsel for the Respondent emphasized the differences. The Commission recognizes that there are similarities and there are differences between the case at hand and the Mason decision. However, the similarities are significant and overshadow the differences. Both Constable Mason and Constable Carson were police officers who were under emotional stress at the relevant time due to marital problems. Both uttered a death threat and faced similar criminal charges. Both had excellent employment records and evaluations. While Constable Mason had twenty years of service, Constable Carson had eleven years of service. Officer Carson’s record of service was entirely unblemished while Constable Mason’s record had one prior incident on his record. Constable Carson was on duty while Constable Mason was off duty but the public present at the time of the incident knew him to be a police officer.

66The conduct of Constable Carson i.e. uttering a death threat was serious. This misconduct is very similar to the misconduct of Constable Mason. There are enough comparables in the two cases to conclude that the penalty imposed by the Hearing Officer against Constable Carson is outside the range and was in fact hard and excessive. Officer Carson had eleven years of unblemished service with the Service. Evaluation reports were to his credit and described him as an officer totally unlike the officer who found himself charged with a criminal offence of uttering a death threat and thereafter facing disciplinary charges under the Act.

67These reports describe Constable Carson as an officer who was competent and effective and who performed his duties in a highly professional manner. Overall, they described him as a good officer who used good judgment, good self-control and handled emergencies well. Moreover, the evidence of the witnesses at the sentencing hearing highlighted his talents and emphasized his qualities as a police officer in the community of Pembroke. The evaluation reports and the evidence of the witnesses cannot be ignored and together they describe an officer deserving of another opportunity to demonstrate that this was a brief, if not momentary, and certainly regrettable departure from an otherwise excellent service record.

68In summary, we have concluded the following:

1. The Hearing Officer erred in principle by failing to give any weight or treat as a mitigating factor the guilty plea of the Appellant;

2. The Hearing Officer erred in principle by treating as an aggravating factor the Appellant’s defence strategy (right to make full answer and defence) at the criminal trial;

3. The Hearing Officer erred in principle by failing to follow prior decisions of the Commission; and

4. The penalty imposed by the Hearing Officer was harsh and excessive.

69In light of the above, the penalty is varied to a reduction in rank from first-class constable to second-class constable for a period of one year without conditions.