Christian v. Grbich and Aylmer Police Service, 2002 CanLII 76730

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

REASONS FOR DECISION

Citation: Christian v. Grbich and Aylmer Police Service, 2002 ONCPC 8

BRADLEY CHRISTIAN

Appellant

and

CONSTABLE DEAN GRBICH and

AYLMER POLICE SERVICE

Respondents

Presiding Members:

Frederic G. Farrell, Q.C., Member

E. E. Kelly Culin, Member

Appearances:

Bradley Christian, Appellant

David Thompson, Counsel for the Respondent Aylmer Police Service

Constable Dean Grbich, Respondent

Hearing Date: Monday, May 6, 2002

This is an Appeal by Mr. Christian of the penalty imposed by Staff Inspector M. Moule (the “Hearing Officer”) on Constable Dean Grbich of the Aylmer Police Service (the “Service”) following conviction for one count of discreditable conduct.

This conviction related to improper use of the Canadian Police Information Centre (“C.P.I.C.”) system on May 21, 1998. The penalty in question is a five-day suspension without pay.

Background:

It is important to understand both the factual background that gave rise to this Application and the procedure which was followed leading up to the hearing of this Appeal.

Constable Dean Grbich was at all material times an officer with the Aylmer Police

Service. On January 14, 1999, while on duty, Constable Grbich became aware that a

motor vehicle was parked outside the residence of his former girlfriend (Ms. D.) Constable Grbich used the C.P.I.C. system to determine the ownership of this motor vehicle. The owner was Bradley Christian who at the time was the boyfriend of Ms. D.

Constable Grbich later telephoned Ms. D. and threatened harm to Mr. Christian. In response, Ms. D. immediately notified the Service. Her telephone call was communicated through the St. Thomas dispatcher. Sergeant Reymer of the Service (now Deputy Chief) was notified of the incident and on the same night telephoned Ms. D. for details and also spoke to Mr. Christian. Thereafter Chief Segui of the Service was

informed of the situation and he requested the Ontario Provincial Police (the “O.P.P.”) to investigate.

Constable Grbich was suspended from regular duties on January 15, 1999 with pay. The O.P.P. attended Bradley Christian’s residence and obtained a written statement. Eventually, charges were brought under the Criminal Code of Canada. As well, over time a total of ten charges of misconduct under the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) were laid against Constable Grbich.

With respect to the criminal charges on October 21, 1999, Constable Grbich was found guilty of uttering a threat to cause bodily harm (contrary to section 64.1(1)(a)) and uttering a threat to cause death (contrary to section 264.1(1)(a)). The sentence rendered at trial was eighteen months probation and forty- five hours of community service.

On February 2, 2000, Constable Grbich agreed to plead guilty to five charges of discreditable conduct (two relating to the criminal convictions and three to improper use of the C.P.l.C. system) and accepted an agreed upon penalty. In return, the Prosecutor withdrew the five remaining disciplinary charges.

The penalty imposed with respect to the five separate charges of discreditable conduct were as follows:

1. a cumulative penalty of 50 days suspension without pay;

2. reduction in rank from second-class to third-class constable for a period of six (6) months; and

3. an order to participate in an anger management program. The 50-day suspension without pay can be broken down as follows:

a) for the May 21, 1998, improper use of the C.P.I.C. system: 5 days suspension;

b) for the December 28,1998, improper use of the C. P.I.C. system: 15 days suspension; and

c) for the January 15, 1999, improper use of the C.P.I.C. system: 30 days suspension.

Initial Application:

Mr. Christian brought an application under section 70(4) of the Act to this Commission seeking Leave to Appeal the various decisions of the Hearing Officer. This included the five charges that were withdrawn.

The powers of the Commission with respect to appeals are found in section 70 of the

Act. It provides in part, as follows:

70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsection 64(7) or 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

(2) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a police officer.

(3) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a complainant if the appeal is from the finding that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence.

(4) The Commission may hold a hearing, if it considers it appropriate, upon receiving a notice under subsection (1) from a complainant with respect to an appeal other than an appeal described in subsection (3).

Mr. Christian’s application raised a number of preliminary issues.

At a meeting of the parties on February 6, 2001, it was agreed that two matters would need to be determined before the application for Leave to Appeal could proceed. These were:

(1) Whether or not Mr. Christian was qualified as a complainant within the meaning of Part V of the Act for the purposes of appealing the penalties imposed on four counts (i.e. other than that arising from the C.P.I.C. check conducted on May 21,

1998); and

(2) Whether or not the Commission has the authority under section 70 of the Act to hear appeals from disciplinary charges that were withdrawn by the prosecutor at the original hearing.

Arguments were heard on July 17, 2001 with respect to these matters. On October 18,

2001, the Commission made the following decision:

(1) Mr. Christian was a complainant within the meaning of Part V of the Act for the purpose of appealing the penalty imposed with respect to one count only, namely, the improper use of the C.P.I.C. system on May 21, l998.

(2) Mr. Christian did not qualify as a complainant for the purpose of seeking Leave to Appeal with respect to the four other penalties imposed on Constable Grbich by the Hearing Officer.

(3) The Commission had no authority under section 70 of the Act to hear appeals from disciplinary charges that were withdrawn by the prosecutor at the original hearing.

Detailed reasons were set forth in a written decision.

Leave to Appeal:

The question then became whether or not the application of Bradley Christian for Leave to Appeal with respect to the penalty imposed for the improper use of C.P.I.C. on May

21, 1998, should be granted. The Commission examined the merits of this application based on materials filed. It rendered its decision on February 13, 2002. It was determined that this case fell within the scope of section 70(4) of the Act.

The Commission found that in order for any application to proceed two requirements must be met. First the application must have been made in the prescribed form. That requirement had been satisfied in this case. Second the application must be

”appropriate”. Section 70(4) specifically uses this term. However, the statute does not define what the appropriate circumstances are. In addition, there is no case law on the subject.

The Commission concluded that it had broad discretion with respect to granting Leave to Appeal. The Commission noted that it was an administrative body and discretion should always be exercised with great care, caution, and under the correct circumstances, to assure fairness in the system. As well, Leave to Appeal in itself is not a matter of right and will not be granted on all occasions.

The Commission noted the Declaration of Principles contained in section 1 of the Act. The Declaration of Principles states that police services shall be provided throughout Ontario in accordance with various principles that include the following:

1. The need to ensure the safety and security of all persons and property in

Ontario …

2. The need for co-operation between the providers of police services and the communities they serve.

3. The importance of respect for victims of crime and understanding of their needs.

The Commission emphasized that the Province of Ontario recognized the rights, needs and safety of its citizens with respect to police services and that our policing system

must work for all citizens. The Commission also found that the Applicant raised some novel issues concerning the rights of a citizen to participate in the disciplinary process that was an essential aspect of the public complaint system.

Given the above, Leave to Appeal was granted and the hearing scheduled for May 6,

The Appeal:

As noted earlier, this Appeal only concerns the penalty imposed on one count of discreditable conduct arising from the conviction for the improper use of the C.P.I.C. system on May 21, 1998.

Preliminary Motion:

At the commencement of this Appeal, the Applicant brought a Motion pursuant to section 70(5) of the Act for the introduction of additional documentary evidence. The grounds for the Motion were that certain evidence was not provided or made available to Mr. Christian at the original trial of this matter. Mr. Thompson did not object to the Motion proceeding.

The evidence in question consisted of:

a) A statement from Ms. D. provided to the O.P.P. dated November 26, 1999, asserting that she had done the May 21, 1998, C.P.I.C. check on Mr. Christian rather than Constable Dean Grbich; and

b) A copy of a letter from Ms. D. to Mr. Christian confirming her statement to the O.P.P. and indicating that Constable Dean Grbich did not complete the C.P.I.C. check of May 21, 1998.

Mr. Christian argued that this evidence is relevant and meets all of the requirements enunciated by the Supreme Court of Canada in Palmer v. Her Majesty the Queen (1980), 1979 CanLII 8 (SCC), 1 S.C.R. 759. He argued that the statement of Ms. D. indicated that she and she alone ran the C.P.I.C. and not Constable Grbich. He further asserted that, if this evidence was admitted, the guilty plea of Constable Grbich must be set aside.

Mr. Thompson argued that Constable Grbich pled guilty to all five charges and only the penalty imposed with respect to one count is the subject of this Appeal. He asserted that there was no evidence to demonstrate that the plea of Constable Grbich was in any way fraudulent.

Under section 70(5) of the Act, the Commission is permitted to receive new or additional evidence on an Appeal “as it considers just”. The Act does not set out what factors to take into account. The principles established by Mr. Justice McIntyre in Palmer v. Her Majesty the Queen at page 775 provided some assistance. These principles are as follows:

1. Evidence should generally not be admitted, if by due diligence, it could have been adduced at trial.

2. The evidence must be relevant in that it bears upon a decisive or potentially decisive issue.

3. The evidence must be credible.

4. The evidence must be such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.

Accordingly these principles relate to due diligence, relevance, credibility and significance.

The subject of this Appeal is whether or not the penalty imposed by the Hearing Officer in his decision with respect to the penalty on a single count is appropriate and should be upheld. The proposed “new” evidence tendered by Mr. Christian is neither relevant nor significant to the single issue before us. Moreover the credibility of the new evidence is seriously suspect because its truthfulness has never been tested by cross-examination. Further, there was a letter included with the Motion materials (being a letter from Ms. D. to Detective Ray Collins of the Woodstock O.P.P. dated December 1, 1999) in which

Ms. D. denies that she ran the C.P.I.C. check and admits that she lied about that fact. Accordingly, the credibility of the proposed new evidence is seriously in doubt.

We also note that our powers with respect to this Appeal are limited and governed by the Act. We do not have the power on a sentence appeal to overturn a conviction and direct new charges. The Motion was denied.

Appellant’s Position:

The Hearing Officer accepted a joint submission of the Prosecutor and Defence Counsel for Constable Grbich with respect to penalty. Mr. Christian argued that the penalty given to Constable Grbich was not appropriate given the severity and totality of the conduct. Mr. Christian noted that while Constable Gribich was suspended without pay for fifty

days collectively for all of the charges, he was paid in full for the nine months prior to his conviction while he was on suspension. Mr. Christian stated that he believed that the plea bargaining agreement was more favourable to Constable Grbich than should have been permitted.

Mr. Christian argued that Constable Grbich misused the legal system for his own benefit. Moreover, as the result of the joint submission, Mr. Christian argued that the Hearing Officer did not review the evidence with a high degree of scrutiny and if he had, a more serious penalty would have been imposed. He asserted that the plea bargaining process was improper because the Prosecutor was in a conflict of interest since, at the time in question he was also counsel defending a civil suit that Mr. Christian had brought against Constable Grbich, the Aylmer Police Services Board, the Service, the Corporation of the Town of Aylmer and Chief Bill Segui. Mr. Christian stated the penalty was not sufficient

to be an effective deterrent to avoid future misconduct.

He further argued that Constable Grbich had never displayed any real remorse for his conduct nor did he ever apologize to him personally for his behavior. Overall, Mr. Christian stressed that the improper use of C.P.I.C., given all of the facts and under all of the circumstances of this case, merited a greater penalty than a five-day suspension.

Position of Respondent Service:

Mr. David Thompson, on behalf of the Service, argued that the penalty imposed against Constable Grbich was entirely appropriate. He pointed out that the penalty of a five-day suspension for this particular charge met the criteria of sentencing in that it was a:

a) severe penalty to Constable Grbich;

b) deterrent to Constable Grbich;

c) deterrent to all other officers;

d) message to the community that this type of conduct on the part of police officers would not be dealt with lightly.

He further pointed out that the ultimate penalty would have been dismissal but this is justified only where it has been established that an officer was no longer fit to remain an employee. Moreover, dismissal should be reserved for the most egregious offences

that nullify the usefulness of the officer and cause serious damage to the reputation of the police service.

Mr. Thompson asserted that the conduct of Constable Grbich did not merit a reduction in rank. He indicated that a penalty comprised of a five-day suspension was an immediate financial penalty that was needed to send the correct message to an offending officer. He suggested that the penalty of a five-day suspension was more than a reprimand and that it was at the higher end of the scale for offences of this nature. Generally, he stated that penalties for C.P.I.C. violations for a first offence were a reprimand and/or counseling. Accordingly, the penalty of a five-day suspension for this type of offence was appropriate.

Mr. Thompson referred us to Re Trumbley et al. and Fleming et al. (1986), 55 O.R. (2d)

570 (Ont. C. A.) and Cate and Peel Regional Police Service (unreported, 17 July 1998, O.C.C.P.S.).

Position of Respondent Officer:

Constable Grbich addressed us concerning the penalty that had been imposed upon him and how it had affected his life. He stated that the five-day suspension had made a financial impact on him and he considered it an enormous fine. He stressed that in addition to the immediate cost, i.e. a loss of salary, benefits and the effect on his retirement that he also had sustained legal costs in the range of $18,000.00 all of which resulted in him having to sell his personal effects to meet his obligations.

Constable Grbich further stated that he was encouraged to commit the C.P.I.C. violation because of his domestic involvement with Ms. D. with whom the Appellant had also had

a relationship. Accordingly, he believed that the penalty of a five-day suspension with all its consequences was sufficient.

Decision:

The sole issue to be determined on this Appeal is whether or not the penalty imposed upon Constable Grbich with respect to one count of discreditable conduct concerning the improper use of the C.P.I.C. system on May 21, 1998, should be upheld.

The powers of the Commission on Appeal are set forth under section 70(6) of the Act which provides:

70(6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be.

The Commission is charged with a specific role in reviewing penalties. Its authority is statutory in nature and guided by relevant prior decisions of the Commission.

The test to be applied in reviewing penalties was set out in Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.) at pages 1169 to 1170 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.”

The Commission has the authority to vary a penalty imposed by a Hearing Officer under certain specific circumstances. Mere disagreement is not enough. In Gibson and the 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 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.

The Commission may vary a penalty if it is unreasonable, amounts to an injustice or if all relevant factors have not been fairly and impartially considered. In this regard the burden lies upon the party seeking the Appeal.

How do these principles apply to our fact situation? In this case the Hearing Officer accepted a joint submission of both the Prosecutor and the Defence Counsel. The Hearing Officer did not articulate his reasons for concluding that the proposed five-day suspension was appropriate and fair. This was regrettable, but perhaps understandable given that it was presented in the form of a joint submission. Accordingly, we will deal with this Appeal on the basis of the record.

We have reviewed the transcript of the proceeding. According to the transcript, the Hearing Officer received background information about Constable Grbich, i.e. his qualifications, awards, employment record and the personal relationship that preceded this misconduct. There is nothing to suggest that it did not receive proper scrutiny. We are satisfied that he had sufficient information before him to conclude that the plea of guilty from Constable Grbich was voluntary. Having said this, the question for us is whether or not the penalty was in fact fair and appropriate based upon the evidence on the record or whether it should be varied.

The misuse of the C.P.I.C. system for personal or any other unauthorized reason can be a serious violation of a person’s right to privacy. Constable Grbich acknowledged that he deliberately used the C.P.I.C. system to obtain information about Bradley Christian for personal reasons. A police officer is a professional who is looked upon by the public as

a person they can rely upon and trust. When a police officer breaks the rules and violates the public trust, they must be held accountable.

Further, there is the question of both specific and general deterrence. While this misconduct involved a former personal relationship that clearly sparked Constable Grbich’s behavior, this is not acceptable conduct and must be deterred from repetition. We believe that the Hearing Officer recognized this fact because he imposed a penalty of suspension as opposed to a reprimand. This resulted in an immediate, direct financial consequence to the officer. With respect to general deterrence, a suspension as opposed to a reprimand sends a message to other members of the force that such behavior will not be tolerated.

On the question of rehabilitation, every attempt should be made to consider whether or not rehabilitation is possible. A police service and the community in which it is situated makes a significant investment in each police officer. Unless the offence is egregious and unmitigated, the opportunity to reform must be a key consideration. Factors such as the involvement of prosecuting counsel in related civil proceedings (initiated by the Appellant) are irrelevant.

We must also keep in mind what was stated in Carson and Pembroke Police Service

(unreported, 27 July 2001, O.C.C.P.S.) at p.13:

… 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 purpose we have identified a number of cases involving similar misconduct.

The first is Kleinsteiber and Ontario Provincial Police (1996), 3 O.P.R. 1092 (O.C.C.P.S). This was an appeal of a penalty imposed after a conviction of discreditable conduct and breach of confidence. Constable Kleinsteiber plead guilty to having acted in a manner likely to bring discredit to the police service by having shown an unauthorized person documents belonging to the O.P.P. The officer disclosed C.P.I.C. and other police investigative reports to a private investigator who later claimed fees for recovering the stolen goods. The original penalty imposed against this officer was that he be

terminated from his employment if he failed to resign within seven days.

On appeal the penalty was varied to demotion to fourth-class constable. While the Commission concluded that the officer’s conduct deserved serious censure for this significant breach of trust and betrayal of a confidence, they did not believe that

dismissal was appropriate. Various factors were given, including his unblemished record, his acceptance of responsibility and the positive testimony of his senior officers.

In Kemp v Bates (Ont. Bd. Inq., 9 September and 20 December, 1993) Constable Bates released information that he had obtained in his official capacity as a police officer about Mark Kemp to two individuals. The Board held that the Constable had committed a

breach of confidence when he made the disclosure about the alleged speeding of Mr. Kemp. The Board concluded that the offence was serious. The Board took into consideration that while the officer did not have an unblemished employment history, his record for the prior two years was good, he had several tributes and one incentive award and he did not intend any harm. The Board imposed a penalty of forfeiture of days i.e.

24 hours on each finding of misconduct.

In Morris and Ontario Provincial Police (1992), 2 O.P.R. 932 (O.C.C.P.S.) Detective Sergeant Morris used C.P.I.C. to obtain information about a person who was a client of his brother who was a lawyer. Apparently, the person was well known to the police and thought to be violent and dangerous. The officer gave this information to his brother.

The officer was charged with breach of confidence and was subsequently convicted with a penalty imposed of forfeiture of two vacation days. On appeal, the conviction was upheld but the penalty varied to a reprimand. The penalty was varied because the offence was considered to be a minor offence and the officer had been motivated out of personal concern for his brother’s safety.

Accordingly, the spectrum of punishment for unauthorized release of C.P.I.C. information can range from demotion to reprimand. Dismissal is the ultimate penalty and should be reserved for the most egregious offences that nullify the usefulness of the officer and cause damage to the reputation of the police service. This is not the case before us. While a serious breach of confidence had been committed by Constable Grbich and

while he violated the right to privacy of Bradley Christian, his conduct in this matter alone does not amount to an egregious offence which would nullify his usefulness to the police force or negate any attempt at possible rehabilitation.

The above cases provide a good comparative study for the range of penalties which can be considered for the type of misconduct committed by Constable Grbich. A reduction in rank or a reprimand or something in between can be suitable penalties for misconduct involving the misuse of the C.P.I.C. system by a police officer.

The misconduct of Constable Grbich cannot, under any circumstances, be condoned. It was serious because it was illegal and violated the privacy rights of a citizen. His

misuse of the C.P.I.C. system was not as serious as that of Constable Kleinsteiber but at the same time more serious than that of Detective Sergeant Morris. Constable Kleinsteiber ultimately received a penalty of a reduction in rank for using the C.P.I.C. system for his own benefit and that of a third party who made a financial gain. By comparison, Detective Sergeant Morris used the C.P.I.C. system to obtain information out of concern for his brother’s safety and ultimately received a penalty of a reprimand. Constable Grbich used the C.P.I.C. system strictly for his own benefit motivated by a personal domestic relationship and no financial gain was involved.

In Kemp v Bates, the penalty imposed against Constable Bates was a suspension i.e. a forfeiture of 24 hours on each finding of misconduct for his breach of confidence even though he did not have an unblemished record. The breach of confidence was the unauthorized use of confidential police information that is similar to the unauthorized use of the C.P.I.C. system. We believe that this case scenario is more analogous to our situation than either the Kleinsteiber or Morris cases.

A suspension, therefore, is a more appropriate penalty than either a reduction in rank or a reprimand in this case. Since the breach of confidence by Constable Grbich was more serious than the breach by Constable Bates, a suspension in excess of a forfeiture of 24 hours is also appropriate.

As we have stated, our responsibility is to ensure that the penalty is both appropriate and fair while at the same time consistent with other decisions of similar conduct. The Commission has concluded that the penalty imposed by the Hearing Officer of a five- day suspension was fair, appropriate and consistent with other decisions with respect to conduct of this nature.

For the above reasons, the Appeal is dismissed.

Dated this 9th day of August, 2002

Frederic G. Farrell, Q.C. Kelly Culin

Member, OCCPS Member, OCCPS