ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
PROVINCIAL CONSTABLE A. L. FAVRETTO Appellant
and
ONTARIO PROVINCIAL POLICE Respondent
Presiding Members: Frederic G. Farrell, Q.C., Member E.E. Kelly Culin, Member
Appearances: W. Michael Temple, Q.C., Counsel for the Appellant Lorna E. Boyd, Ontario Provincial Police Association Michael Shard, Counsel for the Respondent Inspector David McLean, Ontario Provincial Police
Hearing Dates: Tuesday, September 11, 2001 and Thursday, September 20, 2001
Constable A. L. Favretto appeals a finding of guilt on one count of discreditable conduct contrary to section 1(a)(i) of Regulation 927, R.R.O 1990 as amended (the “Code”)1 by Superintendent (Retired) Robert J. Fitches (the “Hearing Officer”) on July 27, 2000.
As well, Constable Favretto appeals the penalty imposed on October 26, 2000 that he be dismissed from the Ontario Provincial Police (the “OPP”) within seven days unless he resigned.
Background:
A. L. Favretto is a first class constable with the Still River Detachment of the OPP in northern Ontario. By his own description, his working relationship with his fellow constables has not been positive.
The incident giving rise to these disciplinary proceedings occurred on April 21, 1996. Constable Favretto was at his desk preparing reports. Constable Foster requested that he take a break and join him at a restaurant for a coffee. Constable Favretto continued to work on his report wherein Constable Foster took out his baton and waved it like a sword around Constable Favretto’s head and made the comment “Al, how’s it going . . . having fun?” Constable Foster later testified that his actions were not intended to harm Constable Favretto but were more in the nature of horseplay.
Constable Favretto heard the sound of the baton behind his head, then saw Constable Foster swinging it at him. Constable Favretto drew his service revolver and aimed it directly at Constable Foster with his finger on the trigger. Constable Favretto would later state that he did not recall drawing his revolver and pointing it. Constable Favretto then re-holstered his pistol and resumed his duties at his desk. Afterwards, Constable Favretto and Constable Foster went for coffee. In the police cruiser, they discussed the matter.
On April 25, 1996, Constable Favretto was charged with a criminal offence. The allegation was that he without lawful excuse pointed a firearm at Constable Foster contrary to section 86(1) of the Criminal Code of Canada [now section 87(1)]. Constable Favretto pled not guilty. Following the trial, the criminal charge was dismissed on March 11, 1997. On April 18, 1997, the Trial Judge delivered the reason for the decision, finding that at the time of the incident, Constable Favretto was in a state of non-insane automatism. The Crown appealed the decision. The appeal was dismissed on December 17, 1997.
As a result of these events, Constable A. L. Favretto was also charged with the disciplinary offence of discreditable conduct. The specific allegation was that on April 21, 1996 he had acted in “a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit to the reputation of the police force”.
Hearing:
Constable Favretto was scheduled to appear before the Hearing Officer on July 19, 1999. His counsel brought an application before the Superior Court of Justice (Divisional Court) seeking an order either prohibiting the matter from proceeding or having it stayed for a period of time. This application was dismissed and the hearing commenced. It lasted several days.
Constable Favretto acknowledged that he had drawn and pointed his revolver. However, he relied on a defence of non-insane automatism. The evidence of three medical professionals was considered i.e. Dr. Basil Orchard, (psychiatrist) Dr. Philip Klassen (psychiatrist) and Dr. Keith Travis (clinical psychologist).
According to Dr. Orchard the action of Constable Foster (who Constable Favretto viewed as a friend) wielding the baton around his head equated a significant psychological blow, which brought on a state of dissociation.
Constable Foster gave evidence that following the incident at the Detachment, he and Constable Favretto went in a police cruiser for a coffee. Constable Foster testified that Constable Favretto apologized to him for his actions and in fact stated that he was “pissed off” or that Foster was “bugging him”. The Hearing Officer saw this as a display of emotion and noted that Dr. Orchard had stated in his testimony that an essential part of dissociation is a lack of emotion. He said: “Dr. Klassen stated that Provincial Constable Favretto’s description of his state of mind at the time of the pointing of his gun ‘makes the suggestion of a dissociative episode untenable’. I found his evidence to be clear, straightforward, and objective. I also found Dr. Klassen’s evidence to be compelling.” Based upon the foregoing, the Hearing Officer concluded that the defence had not established a sufficient evidentiary basis for the defence of non-insane automatism.
The Hearing Officer also considered the issue of intent. He referred to McCoy and Ontario Provincial Police (1989), 2 O.P.R. 832 (O.P.C.). In that case, the Commission found that while psychiatric evidence might explain why an officer shoplifted, it did not give rise to a lawful excuse for such conduct. Accordingly, the Hearing Officer stated that even if he were to accept Dr. Orchard’s opinion as to Constable Favretto’s state of mind at the time of the incident (lack of intent), it would not constitute a lawful excuse. The Hearing Officer found Constable Favretto guilty of the allegation.
With respect to penalty, the Hearing Officer reviewed the evidence and considered a number of factors. His disposition can be summarized as follows:
Public Interest - He felt that he must give due consideration to the public interest. He could not ignore that while Constable Favretto was provoked by the unfriendly behaviour of his colleagues, his response could have resulted in the use of lethal force.
Seriousness of Misconduct - While the conduct was grievous, he noted that it was done in a moment of passion with no premeditation.
Recognition of the Seriousness of Misconduct - He found Constable Favretto’s denial of responsibility to be aggravating but not in the extreme.
Employment History - He found Constable Favretto’s history, for the most part, extremely positive and stated that he recognized it as a mitigating factor.
Need for Deterrence - He found no need to consider this aspect since it was a criminal act with criminal sanctions applicable.
Ability to Reform or Rehabilitate the Officer - Because of the seriousness of Constable Favretto’s actions, he was not prepared to consider rehabilitation or reform.
Damage to the Reputation of the Force - He stated that the public had an expectation that police responses will be safe, planned, deliberate and composed. To retain Constable Favretto would bring grievous discredit to the reputation of the force.
Handicap or Other Considerations - He recognized that stress may have affected Constable Favretto’s behaviour. However, the seriousness of the behaviour and the potential lethal consequences were such that he could not rely on emotional consideration as a mitigating factor.
Effect on the Officer and His Family - He acknowledged that he did give serious consideration to the impact and effect of dismissal on both Constable Favretto, personally, and his family.
Management Approach to Misconduct - He acknowledged that he did not give undue consideration to the fact given the seriousness of the offence.
Consistency of the Penalty - He acknowledged that he considered other cases with respect to the penalty. He drew distinctions between the other cases and the case at hand. However, if Constable Favretto’s behaviour were to reoccur he was concerned that such reoccurrence could have potentially lethal consequences.
Based upon these considerations and his concern that if Constable Favretto remained an OPP officer and found himself in a similar emotional and psychologically taxing situation, he might react in a similar fashion, the Hearing Officer felt compelled to render his decision that Constable Favretto be dismissed from the OPP unless he resigned within seven days.
Appeal:
The Appellant seeks an order that this appeal be allowed and that the charge against him be dismissed. In the alternative, the Appellant seeks an order setting aside the penalty of dismissal and substituting a penalty that would allow him to return to his police duties under appropriate supervision and retraining. The Respondent requests that the appeal be dismissed.
Appellants Position:
W. Michael Temple, Q.C., made several arguments in support of the Appellant. In summary:
The alleged misconduct was not proven on clear and convincing evidence.
The Hearing Officer erred in his approach to consideration of the evidence presented by the defence that, at the time of the alleged misconduct, Constable Favretto was in a state of non-insane automatism or dissociation. In particular, the Hearing Officer erred in concluding that the evidence did not establish such a finding.
The Hearing Officer erred in failing to recognize the seriousness of the actions of Constable Favretto’s fellow workers towards him prior to and at the time of the alleged misconduct, and the impact that these actions had on him, in what is expected to be a professional working environment.
The Hearing Officer erred in failing to properly consider and accept the evidence of Dr. Keith Travis to the effect that, in his opinion, Constable Favretto’s actions could be explained by the ‘interruption theory’.
With respect to penalty, the Hearing Officer erred in failing to consider and accept the evidence of Dr. Orchard and Dr. Travis that, in their opinions, Constable Favretto could appropriately return to his police duties with the assistance of a detailed return to work plan.
With respect to penalty, the Hearing Officer erred in failing to act in accordance with his findings that Constable Favretto is a good and decent person with a good employment record, by allowing him an opportunity to return to his police duties under appropriate supervision and re-training.
The penalty of dismissal failed to acknowledge and reflect the previous good employment record of Constable Favretto, the inappropriate stresses placed upon him in his working environment, the recommendations of the expert witnesses, and an appropriate result.
In support of these arguments, counsel for the Appellant drew our attention to the following cases: Alice Clarke v. R. in Right of Canada (1994), 20 C.C.L.T. (2d) 241 (F.C.T.D.), Re ITT Cannon Canada, Division of ITT Industries of Canada Ltd. and Canadian Automobile Workers, Local 1090 (1990) 1990 CanLII 12900 (ON LA), 15 L.A.C. (4th) 369, Tran v. Oosterhoff (1999) 1 P.L.R. 414 (Ont. Bd. Inq.), Carson and Pembroke Police Service (O.C.C.P.S., July 27, 2001) and Lansimaki and Ontario Provincial Police (Superintendent John F. Carson, November 3, 2000).
Respondent’s Position:
Superintendent Michael Shard, on behalf of the Respondent, took the view that both the conviction and the penalty should be upheld. More particularly, he submitted that the factual findings of the Hearing Officer were firmly supported by the evidence and were not void of evidentiary foundation.
He noted that the Hearing Officer had concluded that Constable Favretto’s frustrations had culminated in an explosion of anger when the Appellant drew his service pistol. He suggested that this conclusion was supported by the findings of Dr. Klassen and Dr. Travis. Superintendent Shard drew our attention to certain aspects of Dr. Klassen’s evidence. Specifically, his opinion that Constable Favretto:
- was a person who at times favored task performance over interpersonal relationships;
- may have had some obsessive, compulsive personality traits;
and that
- a person with the above traits may not deal with anger and tension so that it is diffused, but accumulates frustration and this may result in an explosion of anger.
As well, he noted that Dr. Travis’ opinion relied on the ‘interruption theory’. This theory suggests that when a well-organized sequence of behaviour has been interrupted, it will be followed by an increased psychological arousal that can be followed by an emotional expression. In short, Constable Favretto became emotionally overloaded by the complexities of the situation.
Superintendent Shard argued that the Hearing Officer made appropriate conclusions concerning Constable Favretto’s state of mind based on evidence of Dr. Klassen and Dr. Travis. Further, even if the Hearing Officer had accepted the opinion of Dr. Orchard of non-insane automatism, this would not excuse Constable Faveretto’s conduct as intent is not a requisite element of discreditable conduct. The conduct of pointing the firearm in this incident was clearly discreditable.
Insofar as the penalty was concerned, counsel for the Respondent asserted that the Hearing Officer was in the best position to determine an appropriate penalty since he was familiar with the extensive training of the OPP and the level of concern raised by firearm safety issues. Superintendent Shard noted that while the defence counsel referred to the workplace environment as harassment, the Hearing Officer did not come to the same conclusion. In any event, the Hearing Officer felt that workplace conditions would not have justified the pointing of a firearm. He emphasized that the Hearing Officer considered and applied all of the relevant factors and the penalty was in the range of appropriate penalties for misconduct of this nature. Accordingly, Superintendent Shard requested that the appeal be dismissed.
In support of these arguments, counsel for the Respondent drew our attention to the following cases: Toneguzzo-Norvell et al v. Burnaby (1994), 110 D. L.R. (4th) 289 (S.C.C.), McCoy and Ontario Provincial Police, Galloway and Innisfil Police Service (1986), 2 O.P.R. 731 (O.P.C.), Harwood and Ontario Provincial Police (1996), 3 O.P.R. 1086 (O.C.C.P.S.) and Nothing and Ontario Provincial Police (1996), 3 O.P.R. 1081 (O.C.C.P.S.).
Decision:
Constable Favretto was charged with one count of discreditable conduct in that while on duty, he pointed his pistol with his finger on the trigger directly at another constable contrary to section 1(a)(i) of the Code. The Hearing Officer in his decision, on July 27, 2000, found the Officer guilty of the allegation. Subsequently, on October 26, 2000, the Hearing Officer imposed a penalty of dismissal in seven days unless Constable Favretto resigned.
The Commission is being asked to intervene with respect to both the conviction and penalty imposed. Our role and function in such matters is clear. It is a well-established principle that an appellant authority or body should only intervene if the Hearing Officer has made a manifest error, ignored conclusions or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it.
As was noted in the often sited case Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) at page 1058:
Our role or function in such matters is not to second guess the decision of the adjudicator. In certain limited cases it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the adjudicator as to [whether] the credibility of witnesses cannot be reasonably accepted.
Matters of credibility and findings of fact are clearly within the Hearing Officer’s domain. Only in exceptional cases where the reasoning is self-evidently wrong, contains error or cannot reasonably be accepted, will the Commission interfere with the conclusions made by the Hearing Officer on such matters. The evidence must be weighty, cogent and reliable.
Accordingly, our sole role or function is not to merely substitute our opinion for the decision of the Hearing Officer. In order to determine whether or not the above criteria has been satisfied in essence, we must pose the question: “Are the conclusions of the Hearing Officer void of evidentiary foundation?” In conjunction with this test, we must bear in mind the well-established principles as stated above.
In Carmichael and Ontario Provincial Police (May 21, 1998, O.C.C.P.S.) at page 7 the Commission stated:
The applicable burden of proof in this case is that of “clear and convincing” evidence. There must be weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to a reasonable conclusion that the officer is guilty of misconduct. We agree with the Appellant that the Commission can review whether there has been clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of the witnesses. In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight or value.
The Hearing Officer heard from several witnesses including three expert medical witnesses namely practising Psychiatrists Dr. Orchard, Dr. Klassen and Dr. Travis, a Psychologist. He also received and reviewed numerous exhibits.
There were several days of hearings namely July 20, 1999, July 21, 1999, May 1, 2, 3, 4, 2000, July 18, 19, 27, 2000, September 28, 2000 and October 26, 2000. All witnesses had the veracity of their evidence tested by cross-examination. The Hearing Officer had the opportunity, first hand, to view each witness during the examination-in-chief and cross-examination. As such, he is in the best position to hear what they said, how they said it, and observe their general demeanor throughout the hearing.
A considerable amount of evidence was presented and numerous exhibits were filed. The Hearing Officer carefully reviewed the testimony of all medical experts and their various theories pertaining to Constable Favretto’s behaviour. At the end of the day, the Hearing Officer preferred the evidence of Dr. Klassen and Dr. Travis.
The Hearing Officer also attached emphasis to Constable Foster’s testimony as to what transpired immediately after the incident on April 21, 1996. Constable Foster testified he and Constable Favretto drove in a police cruiser to get a coffee during which time Constable Favretto apologized stating that he was “pissed off” or that “Foster was bugging him”. These references were recorded in Constable Foster’s notebook and were contained in his statement given three days after the incident.
The Hearing Officer concluded that Constable Foster was a credible witness and that the evidence of a display of emotion immediately after the incident went directly to Favretto’s state of mind. This was clearly at odds with Dr. Orchard’s testimony that an integral part of a state of dissociation is a lack of emotion. Upon being told about this discussion, it was Dr. Klassen’s evidence that a dissociative state was untenable. The Hearing Officer preferred the evidence of Dr. Klassen on this key point. Based upon the above, the Hearing Officer rejected the defence of non-insane automatism. It was his prerogative to do so.
The Hearing Officer gave all parties an opportunity to be heard and to present their evidence. The expert medical witnesses were given ample opportunity to explain their theories. From a careful and close reading of the proceedings, including transcripts and an examination of all the exhibits, it is quite apparent that the conclusions reached by the Hearing Officer were not void of evidentiary foundation. We cannot find that he made any manifest errors, ignored any conclusions or relevant evidence or misunderstood or drew erroneous conclusions. He clearly preferred certain aspects of the evidence as well as the testimony of some witnesses to other witnesses. This was his privilege. So far as the credibility of the witnesses is concerned, the Hearing Officer was in the best position to make that assessment. Based upon the foregoing, he had clear and convincing evidence upon which to base his decision.
The Hearing Officer also commented upon the issue of intent with respect to the allegations of discreditable conduct and referred to the case of McCoy and Ontario Provincial Police. Constable McCoy was an off duty OPP constable who left a store with merchandise without paying. He was charged with theft under a $1000.00 under the Criminal Code of Canada, pled not guilty and, after a trial, the charge was dismissed. Medical evidence, produced at the trial, indicated that he was under psychological stress resulting in an overwhelming state of anxiety that led to a state of preoccupation or absent-mindedness. The criminal court accepted the defence and dismissed the charge. However, at the disciplinary hearing, the Hearing Officer found him guilty and imposed a penalty. Constable McCoy appealed both the conviction and penalty. Defence counsel argued that the psychiatric evidence provided an excuse for the conduct of the officer. This argument was rejected and, on appeal, the conviction was upheld on the basis that the medical opinion explained the conduct, but did not excuse the conduct.
Constable Favretto was charged under section 86(1) of the Criminal Code of Canada, namely, pointing a firearm. An essential element with respect to this charge was the intent of Constable Favretto (i.e. mens rea). At the criminal trial, the presiding Judge accepted the opinion of Dr. Orchard that the accused was in a state of non-insane automatism or dissociation. As such, the necessary intent was not established. However, disciplinary proceedings under the Police Services Act are not criminal in nature and a different burden of proof is applied.
Criminal concepts such as mens rea do not necessarily apply. This is particularly relevant in this case where the provisions of the section of the Code, under which discipline is commenced, do not contain words such as “willfully” or “knowingly”.
Even had the Hearing Officer accepted the medical theory of Dr. Orchard, it would merely offer an explanation for Constable Favretto’s actions and not an excuse. The conduct of Constable Favretto on April 21, 1996 at the Still River Detachment was clearly and undeniably discreditable.
Accordingly, the appeal with respect to the conviction is dismissed.
Penalty:
The Commission has a specific role in reviewing penalties. First, it is to ensure that the relevant factors have been taken into account and properly weighed. These factors were identified in Riley and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.). At page 1169 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 that 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.”
In Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.) 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 own 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.
That being said, the Commission may vary a penalty if the penalty is unreasonable, would amount to injustice or unfairness or if all relevant factors have not been fairly or impartially considered.
We have carefully reviewed and considered the decision of the Hearing Officer and his reasons for the penalty. We appreciate that he is a retired Superintendent with the OPP and as such knows the concerns, needs and the requirements of that Service. Nevertheless, we have our responsibility to ensure that the penalty is both appropriate and fair. Having said this, we shall apply all of the above principles in reviewing the decision of the Hearing Officer with respect to this penalty.
The Hearing Officer took into account a number of factors that were identified earlier. However, we believe that there were significant flaws in his conclusion. Our concerns relate to his assessment of the mitigating factor of provocation and Constable Favretto’s potential for rehabilitation.
The evidence at the criminal trial and disciplinary hearing revealed that there were serious problems within the OPP Detachment at Still River with respect to the work environment insofar as Constable Favretto was concerned. In his decision on penalty, the Hearing Officer stated that he was convinced that Constable Favretto’s behaviour was “a direct result of his perception of his environment - that being non-supportive and at least to a degree hostile. Constable Favretto’s evaluation of his work environment would undoubtedly cause him distress and anxiety”.
In his decision, the Hearing Officer concluded: “In any event, in this case as in most, harassment is in the mind of the person receiving the unpleasant treatment. As such, the treatment Constable Favretto was receiving from his co-workers was causing him some distress.”To our mind, both of these comments illustrate the lack of proper emphasis the Hearing Officer placed on the work environment at the Still River Detachment which we believe played a significant role in laying the foundation for the April 21, 1996 incident.
The drawing of a loaded pistol, by Constable Favretto, and pointing it at Constable Foster was immediately preceded by Constable Foster jumping around waving his baton over Constable Favretto's head in a fencing manner and asking whether or not he wanted to go for coffee. While there is no question that in the mind of Constable Foster there was no malice or intent, given the past actions of his co-workers, Constable Favretto did not perceive it as an innocent act.
Prior to this incident, there had been a series of other events at the Detachment, which collectively caused Constable Favretto to lose control. In his testimony at the disciplinary hearing, Constable Foster confirmed these incidents of inappropriate conduct by fellow officers. He confirmed that Constable Favretto was the target of name-calling and that fellow officers were riding him. In fact at the criminal trial he specifically referred to the treatment as “the riding and harassment band wagon”. He also acknowledged that the Detachment Commander was rarely at the Detachment, which gave rise to the lack of leadership, discipline and control within the ranks. This was the workplace environment in which Constable Favretto found himself from the time of his arrival at the Detachment to the date of the incident.
From the evidence both at the criminal trial and at the hearing, it was clear that Constable Favretto was an unwelcome figure and the relentless abuse by his fellow officers went unchecked. Constable Foster described Constable Favretto as a quiet individual and it is apparent that Constable Favretto was not viewed as “one of the boys”.
Whether you accept the conclusions of Dr. Orchard with respect to non-insane automatism or the interruption theory of Dr. Travis, it is clear that the behaviour of Constable Favretto was to a large degree related to the workplace environment. The behaviour of the other officers towards Constable Favretto was offensive and totally unjustified. The work environment for Constable Favretto became highly-charged and emotional.
Constable Favretto was the subject of a series of personal attacks over a prolonged period of time by his fellow officers, which included the following:
- Firecrackers being set off around his desk.
- Derogatory name calling, i.e. referring to him as “Al the kiddies’ pal” or a “Keener” or “Detachment Spy,” poking fun at his ethnic surname, i.e. Faverelli instead of Favretto.
- A fellow officer cutting off a lock with bolt cutters on the locker in which Constable Favretto had placed community service materials thereafter dumping the materials on his desk.
- Removal and destruction of community service boards made by Constable Favretto and placed in the Detachment.
- Playing practical jokes with his automobile because he liked to clean his car.
- Being told by a fellow officer that no member of the Detachment would ever back him up should he need any assistance or help.
Every officer in a Detachment is part of a team and depends on his colleagues for his own safety and for support in the carrying out of his duties. Policing is a serious and dangerous business. Common sense tells us that if a police officer believes that he could not rely on his fellow officers at a critical moment, it certainly would have a profound effect on his stress level.
It is clear that Constable Favretto was centered out and made to feel unwelcome. Although this does not excuse Constable Favretto’s behaviour, we agree with Mr. Temple that it is an important mitigating factor. We consider it both significant and compelling when the penalty of dismissal is being reviewed. Unfortunately, in this case, the Hearing Officer failed to give it proper weight.
A penalty must be tailored to both punish and deter while not causing undue or excessive hardship. The penalty of dismissal is the ultimate penalty. It should be reserved for the most serious offences committed by a police officer where there is no hope for rehabilitation, there are no significant mitigating factors and where the police officer is of no further value to the police service or the community in general.
It must also be consistent with other cases. On this point we agree with the Hearing Officer that the cases of Reilly and Brockville Police Service, Sack and Ontario Provincial Police (1987), 2 O.P.R. 784 (O.P.C.) and Spizziri and Ontario Provincial Police (1988) 2 O.P.R. 799 (O.P.C.) are not the best comparisons. We agree with the Hearing Officer that both the Harwood and Ontario Provincial Police and the Nothing and Ontario Provincial Police are worthy of consideration with respect to our fact situation. These two cases arose out of the same fact situation. Constable Harwood and Constable Nothing worked late at their Detachment. At approximately 3:45 a.m. on the morning of the incident, Constable Harwood attended at Constable Nothing’s residence in uniform wearing his gun. Both sat at the kitchen table consuming alcohol and playing cards.
At 8:00 a.m., both officers were still at the kitchen table which had upon it two guns, and two piles of bullets. Both officers were intoxicated. An argument ensued and Constable Harwood picked up his gun and pointed it at Constable Nothing. Constable Nothing picked up his gun and pointed it at Constable Harwood. They then returned the guns to the table. Thereafter, Constable Nothing pulled out his gun, put a bullet in it and pointed it at Constable Harwood and pulled the trigger. Constable Nothing then placed his gun to his own head and pulled the trigger twice. Constable Harwood was charged and later convicted of discreditable conduct. The penalty imposed was demotion to third class constable. Constable Nothing was charged and convicted of discreditable conduct. The penalty imposed was dismissal.
Both of these cases can be reconciled with respect to the penalty. In the Nothing case, Officer Nothing pointed a loaded gun at another officer and pulled the trigger. In the Harwood case the gun was not loaded. In the case at hand, the Hearing Officer made direct reference to this distinction and went on to address and compare the conduct of Constable Favretto, i.e. the pointing of a fully-loaded, semi-automatic pistol directly at a co-worker. While he stated that he appreciated what had transpired with Constable Favretto, he also stated that no matter what the cause, it was intolerable that a sworn officer would draw and aim a weapon at anyone, considering the potential for death or serious injury.
While we appreciate this sentiment, it is our view, that taking into account the factor of provocation, the facts in this case are more similar to those in the Harwood situation, i.e. pointing a pistol as opposed to firing a pistol.
On the question of rehabilitation, it is evident that Constable Favretto is a good officer with no prior disciplinary history. He is community-oriented and has participated in a number of community organizations, i.e. Canadian Cancer Society (Sudbury Unit), Sudbury Rainbow Crime Stoppers Inc. We reviewed several letters of appreciation applauding Constable Favretto for his efforts while at the Nipigon Detachment by numerous grade schools and high schools, and community associations from 1992 - 1994. We reviewed his performance evaluation reports from 1990 - 1995. Collectively, they reflect an Officer who was a credit to the OPP until this incident.
We were particularly struck by a letter of support, dated September 14, 2000, from Constable Alan K. Hyatt. He wrote:
Al and I have maintained a close relationship over the past several years. Al has on many occasions displayed great remorse for the actions which have resulted in his suspension. He has told me that there has not been a day go by that he wished he could erase the wrong and make it right. I have found Al honest and very trustworthy. I truly believe that he has learned a very hard lesson, one that he is sure never to make again. I see an individual who has been very remorseful and sorry for the mistake that was made.
I can only hope that Al be given an opportunity to prove himself again. I would hate to see a very hard working conscientious individual lose a career over a mistake that was beyond his control.
Again, dismissal is the ultimate penalty and will generally only be justified where it has been established that the officer is not fit to remain an employee. Dismissal should be reserved for the most egregious offences which nullify the usefulness of the officer and cause serious damage to the reputation of the police service.
As was noted in Re Trumbley et al. and Fleming et al. (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 (Ont. C.A.) at 589:
The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform or, possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.
Therefore, the key question which we need to consider is whether or not Constable Favretto can be rehabilitated and reformed to the extent that he can be an asset to the OPP and the general community as a police officer.
The Hearing Officer gave no consideration or weight to the issue of Constable Favretto’s rehabilitation since he believed that his misconduct was far too serious. We believe that rehabilitation is a very important and significant factor when considering an appropriate penalty and the Hearing Officer erred in this regard.
The community has a significant investment in every police officer and before an officer is dismissed, every attempt should be made to consider whether or not rehabilitation is possible. This is of significant importance when the subject officer has had a clear record and good performance evaluations. Unless the offence is so egregious and unmitigated, the opportunity to reform should be a significant consideration. This was not the case with Constable Favretto. With the exception of this incident, he has demonstrated strong skills as a police officer which earned him the respect and gratitude of the community in which he has served.
The Hearing Officer demonstrated overwhelming concern and caution as to whether or not the behaviour of Constable Favretto would repeat itself should he remain a police officer. This concern and caution has not gone unnoticed by the Commission and it is of paramount importance to us as well. However, a review of his employment record and the many exhibits filed on his behalf concerning his character and career achievements, both on and off duty, reflect a person of sound moral and stable integrity, other than on the occasion of this incident.
Looking at his career in its totality, this event would appear to be an isolated incident in an otherwise good career. The testimony of Dr. Orchard and Dr. Travis has also been carefully reviewed. In his medical testimony at the disciplinary hearing, Dr. Orchard reconfirmed his opinion that Constable Favretto was fit and able to return to normal duties with the OPP or any other police work.
In his medical testimony at the disciplinary hearing, Dr. Travis concurred but recommended the assistance of a detailed return to work plan. Based upon the testimony of Dr. Orchard and Dr. Travis, we are satisfied that Constable Favretto can be rehabilitated with a penalty tailored to provide the Officer with the opportunity to do so.
The Commission also noted Constable Favretto’s presence at the appeal hearing and his demeanor indicated he was sincerely remorseful for his actions. Given his past achievements with the OPP and the community and the strong mitigating factors in this case, it is appropriate that he be given an opportunity to redeem himself and demonstrate that his misconduct was a momentary departure from an otherwise good career. The varied penalty will still have its consequences both financial and otherwise, but discreditable conduct carries a cost that must be incurred. We are also emphasizing that but for the extraordinary mitigating factors in this case, the Commission may not have been so readily disposed to vary this penalty.
Accordingly, the penalty is varied from dismissal in seven days to a reduction of rank from first class constable to third class constable, for a two-year period at the end of which he will return to first class constable.
Additionally, Constable Favretto shall be provided with a detailed return to work plan. This plan shall reflect the requirement that prior to returning to full-time duty, that Constable Favretto will:
- Successfully complete the Advanced Patrol Training course offered by the Ontario Police College;
- Enroll in a program of personal and professional development to improve his skills in self assertion, conflict resolution and diplomatic confrontation;
- Enroll in anger management treatment.
DATED THIS 13TH DAY OF FEBRUARY, 2002
Frederic G. Farrell, Q.C.
E.E. Kelly Culin
Member, OCCPS Member, OCCPS