Sergeant Greg Andrews v. Midland Police Service, 2003 CanLII 75388

ONTARIO CIVILIAN POLICE COMMISSION

DATE: May 1, 2003

FILE: OCPC-03-012

CASE NAME: SERGEANT GREG ANDREWS AND THE MIDLAND POLICE SERVICE

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

Sergeant Greg Andrews APPELLANT

-and-

Midland Police Service RESPONDENT

DECISION

Panel: Frederic G. Farrell, Q.C., Member Orlando Zamprogna, Member

Hearing Date: Tuesday, November 12, 2002

Appearances: Harry G. Black, Q.C., Counsel for the Appellant Steven M. Boorne, Counsel for the Respondent

I. Introduction

1. This is an appeal against findings of guilt with respect to four counts of neglect of duty and one count of deceit made against Sergeant Greg Andrews by retired Superintendent Neil J. Sweeney (the “Hearing Officer”) on February 13, 2001.

2. It is also an appeal against the penalties imposed by the same Hearing Officer on May 14, 2001. Those penalties were as follows:

You are to be reduced in rank status and remuneration to 3rd class Constable for a period of six months after which you may move upwards in graduation from 3rd to 2nd to 1st class Constable in accordance with the current provisions of Regulation 929, R.R.O. 1990. You will then remain at the level of 1st class Constable for a period of 3 years after which you may apply to enter the competition for promotion to the rank of Sergeant. Entrance to the promotional competition is dependant upon demonstrating that you satisfy the competency requirements indicated in the promotional procedures established by the Midland Police Service.

II. Background

3. On the evening of November 23, 1999 several off-duty police officers from both the Midland Police Service (the “Service”) and the Ontario Provincial Police (the “OPP”) were socializing at a bar known as “Cocktails and Shotz” in the Town of Midland, Ontario. At least one of the off-duty officers was involved in a physical altercation with a member of the public who received some injuries as a result. Both the off-duty police officers and a group of friends associated with the injured man were requested by the staff to leave the premises. A number of officers asked that they be permitted to wait until the other group had left in order to minimize the risk of further confrontation in the parking lot. The staff agreed to this request.

4. During or shortly after the altercation, Carolyn Pearsall, an off-duty Midland Police Constable, telephoned the Midland Police Station and spoke to Sergeant Greg Andrews. She called him from a pay phone inside the bar and Sergeant Andrews took the call using an internal telephone line at the Station. While this was taking place, a second officer on duty at the station (Constable Debra Gregg) was using another telephone to speak to a local citizen, Mrs. L. That conversation was recorded. Because of the proximity of the two phones, portions of the telephone conversation between Sergeant Andrews and Constable Pearsall were captured on this recording i.e. the voice of Sergeant Andrews in the background having a one-sided conversation with Constable Pearsall.

5. When his call was concluded, Sergeant Andrews informed Constable Gregg that they were going to see Carolyn Pearsall. Constable Gregg terminated her conversation with Mrs. L by advising her that she had to go on an emergency call. Constable Gregg would later testify that there was no emergency but she had used this excuse as a polite way to end the conversation. Prior to leaving the Station, Constable Gregg completed her notes of the conversation with Mrs. L. The officers left together in a marked police cruiser at a low rate of speed. No emergency lights or siren were utilized. Both Sergeant Andrews and Constable Gregg were on regular duty at that time and in uniform.

6. They arrived at the Cocktails and Shotz parking lot. There is some dispute as to precisely when this was relative to the time that the off-duty officers exited the bar. However, at some point the off-duty officers spoke with Sergeant Andrews and Constable Gregg in the parking lot. There is also some dispute as to what various civilians may have done in the parking lot. After the off-duty officers left the premises, Sergeant Andrews and Constable Gregg went about their business. Neither Sergeant Andrews nor Constable Gregg conducted an investigation into the altercation in the bar. They made no notes of the call or their attendance and observations at the parking lot. They did not prepare and submit an incident report.

7. The off-duty officers left the bar and went to the residence of Constable Fawcett in Penatang. At this residence, they discussed the incident and agreed that it was a minor matter that need not be reported.

8. Later, the incident in the bar became the subject of a criminal investigation. Sergeant Osborne of the Service was assigned to investigate allegations of assault. Sergeant Osborne requested a statement from Sergeant Andrews as to his knowledge of the incident and his attendance at the bar at the request of Constable Pearsall. Sergeant Andrews indicated that he had been requested by Constable Pearsall to attend at the bar because he understood that she had locked her keys in her car or needed a boost or something of that nature. Later he would state that the foregoing was merely his spin as to why he attended. Sergeant Andrews denied that his attendance was a response to a call for service.

9. Sergeant Andrews was subsequently charged with seven counts of misconduct.

The Hearing

10. Sergeant Andrews appeared before the Hearing Officer on December 4, 5, 6 and 7, 2000 and January 15, 16, 17 and January 18, 2001.

11. The Hearing Officer found Sergeant Andrews guilty of five counts of misconduct. They were as follows:

12. neglect of duty - Sergeant Andrews attended at Cocktails and Shotz and did not conduct an investigation as required.

13. neglect of duty - Sergeant Andrews did not submit an incident report as required by Service Standing Orders.

14. neglect of duty - Sergeant Andrews made no notes in his notebook as required by Service Standing Orders.

15. neglect of duty - Sergeant Andrews being the officer in charge failed to ensure the proper conduct of his subordinate Constable Gregg i.e. he failed to ensure that she conducted an investigation, completed her notes and filed the proper report.

16. deceit - Sergeant Andrews in a statement to Sergeant Osborne concerning the incident at the Cocktails and Shotz provided information which was false, inaccurate or misleading.

17. With respect to allegations 1, 2 and 3 the Hearing Officer made a finding that the evidence to support findings of guilt was overwhelming and clear and convincing.

18. With respect to allegation 4, the Hearing Officer concluded that it was the responsibility of the supervisors to ensure those under their direction undertook police business in an appropriate manner such as conducting an investigation, filing a report and making appropriate entries in her memorandum books. The Hearing Officer made a finding that there was clear and convincing evidence that Sergeant Andrews failed in his duties and was therefore guilty of neglect of duty.

19. With respect to the allegation of deceit, he found that there was clear and convincing evidence that Sergeant Andrews had knowledge that would have assisted Sergeant Osborne in his criminal investigation and that he knowingly made a false statement to Sergeant Osborne in the course of his investigation of the incident.

20. At the hearing, the prosecutor had sought a penalty of dismissal while defense counsel had requested a penalty of forfeiture of days off. However, the Hearing Officer imposed a penalty of demotion as indicated above.

The Appeal

Appellant’s Position

16. Counsel for the Appellant, Harry Black, Q.C., challenged the decision of the Hearing Officer with respect to all five convictions of misconduct. Specifically, he took the following position:

• There was no evidence that the Appellant had any information about possible criminal conduct at Cocktails and Shotz (either by telephone or when he visited the bar parking lot).

• The Hearing Officer erred in law by substituting his own opinion for that of the Appellant and applying an objective standard in hindsight to make a finding of neglect of duty.

• The Hearing Officer erred by misapprehending the evidence, failed to apply the evidence before him, engaged in speculation and acted without evidence. In particular, the Hearing Officer erred in his assessment of the audiotape and in his refusal to allow the Appellant to call further evidence with respect to the unreliability of the audiotape which had been introduced into evidence by the prosecutor.

• The Hearing Officer breached his duty of fairness to the Appellant by his approach to the handling of evidence i.e. allowing hearsay evidence to be admitted, and witnesses to be led and encouraged to speculate.

17. Given this, Mr. Black asserted that the allegations were not proven on clear and convincing evidence and the Appellant should not have been found guilty of professional misconduct merely on the basis of an error in judgment.

18. In the alternative, counsel for the Appellant also challenged the penalty and argued:

• Mitigating factors were not given appropriate weight. Mr. Black emphasized that the Appellant had an exemplary career with a total of twenty-two years of excellent service with the Toronto Police Service and the Midland Police Service.

• The Hearing Officer did not consider the significant financial impact of the penalty on the Appellant and his family and failed to take into account the informal discipline received by Constable Pearsall who was involved this incident.

• The Hearing Officer erred in penalizing the Appellant for pleading not guilty and for asserting his right to a hearing. Further, The Hearing Officer erred in failing to consider the effect of the delay and the public nature of the proceedings on the officer and the deterrent effect of even a reprimand on an officer’s record.

• The Hearing Officer erred in considering, as an aggravating factor in the imposition of the penalty, a finding by another Hearing Officer that the evidence of the Appellant was unreliable (which finding was not the subject of the Notice of the Hearing).

• The penalty was an illegal penalty contrary to section 68 (1)(c) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) that provides that the manner and period of demotion must be specified. The Hearing Officer imposed a penalty that was an indeterminate suspension dependent on the subjective opinion of the Chief of Police.

• The Hearing Officer erred in finding “beyond any reasonable doubt” that the Appellant does not have the qualities required of a supervisor and penalized the Appellant for his involvement in the executive of the local police Association.

19. Counsel suggested that the appropriate penalty would be forfeiture of ten days off. In support of his position, counsel referred us to 62 cases and citations.

Respondent’s Position

20. Counsel for the Respondent, Steven M. Boorne, requested that the appeal against conviction be denied. Specifically, he took the following position:

• The role of the Commission is to determine whether the findings of fact made by the Hearing Officer are unreasonable or cannot be supported by the evidence. Absent manifest or overriding error, the Commission should not interfere with the conclusions reached by the Hearing Officer.

• Matters of credibility and findings of fact are within the Hearing Officer’s domain. Only in exceptional cases, where the reasoning is self-evidently wrong, contains clear errors or cannot reasonably be accepted, will the Commission interfere with conclusions. The question for the Commission is whether or not the decision of the Hearing Officer was void of evidentiary foundation or demonstrated manifest error in principle.

21. Whether dealing with findings of fact or findings with respect to credibility of witnesses, absent manifest error, counsel stated that deference should be paid to the decision of the Hearing Officer. He argued that Sergeant Andrews received information on the telephone and/or in the parking lot of the Cocktails and Shotz that triggered a duty to take certain investigative steps as a police officer and he neglected that duty.

22. He also asserted that Sergeant Gregg failed in his duty to insure that his subordinate, Constable Gregg, conducted herself in accordance with her sworn duties and that he was deceitful with Sergeant Osborne about his knowledge of events in question.

23. With respect to the penalty, counsel for the Respondent took the following positions:

• The penalty imposed by the Hearing Officer should stand unless the Hearing Officer applied the wrong principles or it is clearly unreasonable. The penalty imposed in this case was within the appropriate range for misconduct of this nature.

• The Appellant had significant time and opportunity to report this matter and he failed to do so. He was a highly experienced police officer and had the opportunity to fully reflect and consult with his associates prior to providing Sergeant Osborne with a statement.

• Moreover, where a police officer not only committed misconduct but engaged in a course of conduct over time attempting to cover up, deceive investigators and impede an investigation or gave evidence under oath which was found to be untruthful, demotion or dismissal are appropriate penalties.

• The Hearing Officer applied the appropriate penalty factors i.e. seriousness of the conduct, specific and general deterrence, ability to reform or rehabilitate and his prior record. As well, the Hearing Officer was correct in determining a different penalty for Sergeant Andrews from Constable Pearsall who was not on duty on the evening in question.

• The penalty was lawful. The law requires that the Hearing Officer make a determination as to the period of demotion necessary to satisfy the “sentencing or punishment” concern and this cannot be delegated to anyone else. However, whether this officer is suitable for return to his or her former rank is another matter and can be delegated to the police force for that determination. As such, the penalty imposed by the Hearing Officer was not an indeterminate suspension depending on the subjective opinion of the Chief of Police.

24. In support of this position, counsel referred us to 17 cases and citations.

III. Decision

25. It is a well established principle that an appellant authority or body like the Commission 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.

26. As was noted in the often cited 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.

27. It is also not our role or function to merely substitute our decision for that of the Hearing Officer with respect findings of fact or for the matter of penalty.

28. Credibility of witnesses and the finding of fact are clearly within the Hearing Officer’s domain. In Carmichael and Ontario Provincial Police (21 May, 1998, O.C.C.P.S.) at page 6 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.

29. Only in exceptional cases where the reasoning itself is evidently wrong, contains error, or cannot reasonably be accepted, will the Commission interfere with the conclusions made by the Hearing Officer on such matters.

30. In order to determine whether or not the above criteria has been satisfied we must pose this 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.

31. Allegations of neglect of duty or deceit are serious matters. The facts of this case certainly are of that nature. A member of the community was criminally assaulted in a bar. A call was made to the local police station. Sergeant Andrews accompanied by his subordinate, Constable Gregg, went to the Cocktails and Shotz in a marked police cruiser. No investigation was made, no notes were taken and no reports were filed. Basically, for all intents and purposes, it was as if nothing had transpired.

32. In his decision, the Hearing Officer sought to determine what Sergeant Andrews knew of the incident and when he became aware of it. Sergeant Andrews was an experienced veteran police officer having served both with the Toronto Police Service and the Midland Police Service for a combined period of twenty-two years. He has held the rank of Sergeant since 1992. Accordingly, he was not a young, inexperienced constable.

33. The Hearing Officer heard testimony from numerous witnesses both civilian and police officers over the course of eight days. Each witness was examined in chief and the opportunity was available to have their veracity tested by cross examination. The Hearing Officer had the best opportunity to hear their evidence, make notes, draw conclusions and to make a judgment as to their creditability based upon what they said, how they said it and what they failed to say. He also had the best opportunity to view their general demeanor as they gave their testimony i.e. whether or not they were at ease, straight forward, evasive, uneasy or forgetful in their responses.

34. At the hearing, there were several areas the Hearing Officer specifically focused upon:

35. The events at the police station when the telephone call was received by Sergeant Andrews from Constable Pearsall.

36. The events in the parking lot of the Cocktails and Shotz Bar upon the arrival of Sergeant Andrews and Constable Gregg.

37. The interview of Sergeant Andrews by Sergeant Osborne for a statement with respect to what had transpired on the night question.

38. On the first two matters, it is important to note the requirement of Standing Order number 30 (dated October 26, 1998) of the Policies and Procedures of the Service that states:

“The following information is meant to clarify the reporting process to be followed by members of the Midland Police Service:

On every occasion when a member of the public makes a complaint to the Midland Police Service which requires any action to be taken by the Midland Police, a report shall be filed providing both the information regarding the complaint request of the complainant, and the action taken by the member dealing with the complaint.

The only incidents that will be classed as a non reportable are

1. false alarms

2. community service

3. traffic control

All other incidents are to be reportable incidents. It is the responsibility of the investigating officer to ensure that the final classification of the incident reflects the true nature of the call.”

36. At the hearing, Sergeant Osborne pointed out that it does not matter whether the complaint is made from a member of the public or a police officer who is on or off duty. The question arises as to whether the circumstances are such that the incident or the impending incident constitutes a complaint. If an incident or an impending incident constitutes a compliant, then Standing Order 30 requires specific steps to be followed as outlined above. The final classification of the incident must reflect the true nature of the call.

37. We have thoroughly examined the decision of the Hearing Officer, the exhibits and the transcripts filed in this proceeding. In his decision, with respect to the one-sided conversation between Sergeant Andrews and Constable Pearsall, which was picked up by the tape of the conversation between Constable Gregg and a civilian, he concluded that this tape was “a major factor with respect to the allegations facing Sergeant Andrews.”

38. The Hearing Officer went to a studio so that he, himself, could listen to the tape of the telephone conversation prior to having access to the transcripts. The context of the tape with respect to the background conversation were very much an issue at the hearing. The defence and the prosecution both retained monitors to listen to the tape and to produce a transcript. Both monitors would testify at the hearing that it was a difficult conversation to transcribe and they were inconsistent in their versions as to what they heard.

39. Counsel for the Appellant argued that the taped conversation did not constitute clear and convincing evidence because there were different versions of what actually had been said. Counsel for the Respondent argued that, at the hearing, counsel for Sergeant Andrews (Mr. Miller) had agreed to accept whatever the Hearing Officer had concluded. The Hearing Officer in his decision stated on page 3 “both counselors during final argument agreed on one point with respect to the background conversation namely it will be what the Hearing Officer believes were spoken by Sergeant Andrews that will count in the final analyze.”

40. The Hearing Officer listened to the tape several times and made notes as to what he heard. The Hearing Officer said that he heard Sergeant Andrews say as follows:

What?

pause

Hey how are you?

I’m doin’ fine. What are you up to?

pause

What?

pause

What do you mean you …

pause

No

pause

Is Bob okay? Yeah?

pause

Right we’ll be there. Are you leaving now?

pause

Right

pause

Oh no, no, no, no. Think of yourself here okay?

pause

Yeah.

pause

So are they gone yet?

pause

Yeah

pause

What’s up with Donny?

pause

Like a stone or what?

pause

Really ay?

pause

Right. Okay we’ll be on our way up.

pause

Bye.

Constable Gregg says to Mrs. L

I have to go for …

Sergeant Andrews is speaking in the background but the only audible words are

Cocktails and Shotz

Constable Gregg then says to Mrs. L

Yeah. I have to go to an emergency call but thank you so much for calling.

40. In his decision the Hearing Officer concluded “beyond any doubt Sergeant is heard saying Donny and although he does not mention Bobby he does make reference to Bob.”

41. The Commission carefully read the transcript of the submissions of both Mr. Boorne and Mr. Miller that were made before the Hearing Officer. We have concluded that Mr. Miller’s statement was not an abandonment of his position that the tape was of little evidentiary value given the difficulty in interpreting the contents of the tape, but a mere acknowledgment that it was in the Hearing Officer’s hands like any other piece of evidence. In other words, counsel for Sergeant Andrews was not withdrawing his objection to the evidentiary value of the taped conversation.

42. However, the Commission listened to the tape of the conversation (being Exhibit #3 (b)) between Mrs. L. and Constable Gregg with the one-sided conversations of Sergeant Andrews in the background. We heard the following:

What?

pause

Hey how are you? Oh great

pause

What?

pause

What do you mean you …

pause

No

pause

Is Bob okay? Yeah?

pause

Right we’ll be there. Are you leaving now?

pause

Oh no, no, no, no. Think of yourself here okay?

pause

Yeah.

pause

So are they gone yet?

pause

Yeah

pause

Like a stone or what?

pause

Right. Okay we’ll be on our way up.

pause

Bye.

Constable Gregg says to Mrs. L

I have to go for …

Sergeant Andrews is in the background

Cocktails and Shotz

Constable Gregg then says to Mrs. L

Yeah. I have to go to an emergency call but thank you so much for calling.

43. We heard substantially the same words spoken by Sergeant Andrews as did the Hearing Officer. We believe the Hearing Officer, having rendered his conclusions about the contents of the conversation, appears to have had sufficient evidence before him to arrive at his conclusions. Clearly, this was not a call about a set of lost keys or the need for a boost.

44. More to the point, Sergeant Andrews left his station with another officer and drove directly in a police cruiser to Cocktails and Shotz. Constable Gregg gave evidence at the hearing that she never asked Sergeant Andrews where they were going nor did she ask why they had to meet Constable Pearsall. She did indicate that when they arrived she observed three or four people at the far end of the parking lot just standing around and she assumed that they were talking. From the evidence, both officers remained with the police cruiser in the parking lot and watched the events unfold.

45. The Hearing Officer concluded that her evidence was inconsistent with known facts, inconsistent with the testimony of other witnesses, inconsistent with her training and eight years of police experience and inconsistent with common sense. It was a substantial rebuke of her testimony. He concluded with respect to her testimony that “it is not that her statements are improbable they are simply not reasonable and therefore not believable.” We agree with his assessment.

46. The Hearing Officer pointed out that Constable Andrews had testified that the evening was “a big nothing” and that he had little recollection of events in the parking lot. The Hearing Officer noted that the prosecutor had questioned him at length about statements made by other witnesses concerning who was in the parking lot where they were and what they were doing. The Hearing Officer concluded that his responses were basically “I didn’t hear that, I didn’t see that, I don’t agree with that.” Moreover, the Hearing Officer concluded that there was “a certain amount of evasiveness and vagueness of memory throughout the hearing on the part of the police witnesses” especially on matters that were in issue.

47. At the same time, the Hearing Officer found the evidence of certain civilian witnesses to be very creditable, in particular, Trevor Arthurs and Art Perrault. The Hearing Officer found Trevor Arthur’s responses to be without hesitation both on examination in chief and on cross examination that he did not qualify his answers nor was he evasive especially with respect to the facts that were of issue. Art Perrault supported the testimony of Trevor Arthurs about the events in the bar. The Hearing Officer found that he was direct in his responses and that he did not tailor his remarks and overall he found his evidence believable.

48. The Hearing Officer assessed the evidence of all the witnesses and preferred the evidence of the civilian witnesses to that of the evidence of the officers. We have concluded on the issue of witness credibility that his findings were reasonable under the circumstances and that his findings were not self evidentiary wrong nor did they contain clear error. We believe that the decision of the Hearing Officer was well composed and that he gave clear and detailed reasons for his conclusions. He merely did not state that there was clear and convincing evidence for his findings but came to these conclusions after a careful and methodical review of the testimony of all witnesses and the exhibits presented.

49. The Hearing Officer concluded that Sergeant Andrews, having been informed of the incident at Cocktails and Shotz based upon the telephone conversation with Constable Pearsall, and, having witnessed the events at the parking lot at the aforementioned bar, there was a duty on him to conduct an investigation that he failed to do so thereby resulting in neglect of duty. Moreover, Constable Gregg was a subordinate officer under his direct command who became aware of the troubling incident and therefore she had a duty to investigate but neglected to do so. Sergeant Andrews was her immediate supervisor duly sworn to have her conduct herself in an appropriate matter. Constable Gregg did not investigate or file any report nor did she even make any entries in her notebook. Such failure on her part, while under his direct supervision, constituted a further act of neglect of duty on his part.

50. Based upon the above, the convictions with respect to the four counts of neglect of duty must stand.

51. The Hearing Officer found Sergeant Andrews guilty of deceit based upon his statement which he gave to Sergeant Osborne about the incident. The Hearing Officer concluded that based upon the evidence at the hearing he was satisfied that Sergeant Andrews was in possession of knowledge that would have assisted Sergeant Osborne in his criminal investigation and that he knowingly failed to make his disclosures.

52. Section 2 (1) (d) (ii) of the Code states:

2(1) Any … Police officer commits misconduct if he or she engages in …

(d) DECEIT, in that he or she …

(ii) willfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties.

53. The Hearing Officer concluded that Sergeant Andrews had knowledge of the incident at the Cocktails and Shotz and that Sergeant Andrews knowingly made a false statement in response to Sergeant Osborne’s inquiries about the evening in question.

54. We are satisfied that his conclusions were very reasonable and that Sergeant Andrews was guilty of deceit based upon his overall review of the evidence, his findings of fact, his findings with respect to the credibility of witnesses and based upon the test of clear and convincing evidence. Sergeant Andrews’ statement to Sergeant Osborne clearly did not reflect what he knew and he failed to make full disclosure as he was required to do. The conviction with respect to deceit must stand.

55. Accordingly the appeal with respect to the convictions, i.e. the four counts of neglect of duty and one count of deceit are dismissed.

Penalty

56. The Commission has a specific role in reviewing a penalty and must be satisfied that all the relative factors have been considered and properly weighed. These factors were specifically identified in Reilly v. Brockville Police Service (1997), 2.O.P.R. 1163 (OCCPS) in particular at page 1169 wherein 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.

57. Moreover, in Gibson and the Waterloo Regional Police Service (1986) 2.O.P.R. 707 (OPC) the Commission further 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.

58. Again 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.

59. Accordingly, 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.

60. At the same time, the penalty must be consistent with the facts and consistent with similar cases. In summary, we have the authority to vary a penalty if it is unreasonable, unjust or unfair or if all the relevant factors were not fairly or impartially considered.

61. Let us first examine the penalty to determine whether or not it was a lawful penalty. Counsel for the Appellant argued that it was an illegal penalty and contrary to section 68(1)(c) of the Act that requires that the manner and period of the demotion of the demolition must be specified. Mr. Black asserted that the Hearing Officer imposed a penalty that resulted in an indeterminate suspension dependent on the subjective opinion of the Chief of Police. The Counsel for Respondent argued that the penalty was lawful and that the law requires the Hearing Officer to make a determination as to the period of demotion necessary to satisfy the “sentencing or punishment” concern and that this cannot be delegated to anyone else. Further, whether or not the officer is suitable for return to his or her former rank is another matter and it can be delegated to the police force for that determination.

62. We agree with the Respondent that the penalty was lawful. In this regard, we refer to the recent decision of Kyle and York Regional Police Service (11 March, 2003, O.C.C.P.S.) at page 6 which we believe properly set out the correct legal principles:

With respect to interpreting the meaning of “specifying the manner and period of the demotion” we believe the word “manner” must mean more than the previous wording in Regulation 791 of the Police Act of in the former Metropolitan Toronto Police Force Complaints Act, which referred to a reduction “in rank or gradation of rank”; otherwise the word “rank” could simply have been used.

The meaning of the word “period” is perhaps more unclear. However, in the same way that the word “manner” has a wider meaning than rank, we are inclined to give a wider meaning to the word “period” as well. In arriving at this conclusion, we are guided by the long line of discipline cases involving demotion.

Further, these words must be read in the context of the legislative scheme as a whole.

The Board of Inquiry noted that the sentencing sections of the Act were not penal in nature, but more analogous to labour relations matters. The Board suggested that in the context of public complaints there is also a public interest in the disposition imposed. This could give rise to the legitimate issues relating to the suitability of any officer to hold a particular rank.

More to the point, the board stated at page 20 and 21:

The Board is best able to assess the period of demotion necessary for the “sentencing” or “punishment” concern, and this should never be delegated to anyone else. The Board has a responsibility to determine and fix a definite period of demotion which is appropriate in view of specific and general deterrence, and rehabilitation, as well as to express any public denunciation … However, where a Board also believes that the officer is not suitable for his or her rank, then the Board should specify a period of demotion which has no maximum and may be permanent or career-long. In specifying the manner of the demotion, the Board may allow the officer to apply for promotion or be assessed in the normal course, but only after a minimum period which is necessary to address the “sentencing” concern. This minimum period prevents a demotion from being shortened inappropriately by a quick promotion (in cases where the officer is found unsuitable at the time of the Board hearing but later re-qualifies quickly somehow). That would be an improper delegation to the “chief of the “sentencing” function of the Board or hearing officer.

To our mind, this logic remains sound. Indeed, the Commission previously adopted this logic. See pages 1138 and 1139 in Stitt and York Regional Police Service (1997), 3 O.P.R. 1130 (O.C.C.P.S.).

63. We believe that the above correctly sets forth a proper interpretation of the law in this regard and that the penalty imposed was lawful. That leaves the question whether or not it was appropriate.

64. In his decision, the Hearing Officer noted the classic principles to be considered when imposing penalty on an officer found guilty of misconduct, namely, the gravity of the misconduct, specific deterrence, general deterrence, rehabilitation and his employment record and years of service and commendations.

65. In his decision, the Hearing Officer made a finding that all of the offences were aggravated by several factors namely:

66. A subordinate officer under his direct supervision failed in her duty with his full knowledge if not his stated or implied consent. Being her supervisor, his misconduct required stronger sanctions.

67. The evidence itself of Sergeant Andrews in the context of his character and possible reoccurrence.

68. The lack of remorse of the misconduct and his failure to resolve the issue despite the opportunity to do so.

69. All of the above were legitimate considerations. The prosecutor had asked for dismissal while the defence had asked for a range of days for each incident. The Hearing Officer clearly believed that the penalty should be at the higher range of the spectrum for penalty of such conduct given the fact that there were multiple acts of neglect of duty as well as deceit coupled with the aggravating factors set out above. We agree.

70. With respect to general deterrence, the Hearing Officer believed that the most junior officer knows the importance of telling the truth both in responding to an investigation about a criminal matter or under oath. With respect to specific deterrence, he believed that the penalty imposed would send a strong message to other officers as to the consequences of such misconduct.

71. The Hearing Officer recognized the importance of rehabilitation. He stated: “We believe the motivation of rehabilitation is the acknowledgment of wrongdoing and acceptance of responsibility.” However, he believed that there was a denial by Sergeant Andrews of any wrongdoing and such denial raised, in his mind at least, the real question as to whether or not there could be any guarantee of rehabilitation. For him, his lack of acceptance of responsibility for the misconduct and his subsequent actions were a very serious concern. Under the circumstances we too believe his concerns were legitimate.

72. The Hearing Officer took the opportunity and did consider several mitigating factors pertaining to Sergeant Andrews that included his employment records, his evaluation reports and letters of support. He specifically made comment about exhibit number 34 that contained personal documentation submitted by various ranking officers of the Toronto Police Service which describes Sergeant Andrews as an officer who demonstrated remarkable restraint, professionalism, excellent leadership abilities and possessing all the attributes necessary for promotion.

73. Also, he made comment with respect to exhibit number 35 from the Service that contains similar evaluations. Letters of commendation referred to Sergeant Andrews’ professionalism and other letters referred to his fairness and judgment described him as a caring person. The Hearing Officer noted that twenty members of the community i.e. friends, retired Midland Police officers, police officers from other jurisdictions and local business people all gave evidence in support of Sergeant Andrews. He made specific reference to some of their remarks that Sergeant Andrews was:

• committed to his job
• a top notch police officer
• proud to wear the uniform
• strong character
• make difficult situations more easy to handle
• strong character and moral fiber

71. He noted that support letters on file concerning Sergeant Andrews suggested:

• diligent in his duties
• professional and sensitive
• one of the good guys
• conscientious
• competent and caring

72. That being said, there is no question that the conduct of Sergeant Andrews on the evening of November 23, 1999 and the events which followed were very serious. The seriousness of the initial conduct i.e. failure to cause an investigation dramatically increased when a junior officer, directly under his supervision, not only was a witness to, but was influenced to become a player in the misconduct. Not only did he set a bad example, he also encouraged a junior officer to engage in misconduct causing her to face disciplinary charges and putting her career in serious jeopardy. To make matters worse, his misconduct expanded and was compounded when, during the course of a criminal investigation concerning an assault on a civilian, Sergeant Andrews, with full knowledge as to what had transpired, made a false misleading or inaccurate statement to an investigating officer.

73. We understand and appreciate the Hearing Officer’s concerns about whether or not there is any guarantee of rehabilitation. However, having said this, we believe that rehabilitation is a very important and significant factor when considering an appropriate penalty. A community, in which a police officer serves, has made a significant investment in every police officer. The prosecutor had sought a penalty of dismissal and the Hearing Officer did consider this penalty. In fact, he stated that dismissal was in the appropriate range given the seriousness of the misconduct. However, the Commission believes that unless the offence is so egregious and unmitigated the opportunity to reform should be a significant consideration. The Hearing Officer was correct in his final assessment not to impose the penalty of dismissal. He was also correct that the penalties imposed for misconduct must be strong enough to send a clear message to other officers that such conduct or any conduct of this nature will not be tolerated. He was also correct that the penalty must ensure public confidence in their police force.

74. The Commission believes that rehabilitation is a key factor to be taken into consideration when a penalty is imposed, especially, when the officer has a prior unblemished employment record. Unless the officer is beyond rehabilitation (in which he would be a candidate for dismissal) the door should be kept open for the officer to be rehabilitated. The penalty should be tailored to provide him with the opportunity to do so.

75. In this case, the penalty imposed was demotion from sergeant to third class constable for six months to be followed by two years of progression to the level of first class constable. Further, Sergeant Andrews is to remain at that level for an additional three years before he would even be eligible to compete for his former rank. At a minimum, the penalty imposed is of several years duration. Practically, given Sergeant Andrews length of service, it means that he has little hope of regaining his rank prior to retirement.

76. In our view this result unduly emphasizes punishment and deterrence and does not properly account for rehabilitation. Sergeant Andrews had an unblemished twenty-two year service record. The evaluation reports and the direct evidence of character witnesses reflect a police officer who was competent and had the ability to fulfill his official duties as mandated by the Service. In short we believe the Hearing Officer failed to give sufficient weight to the numerous mitigating factors and the principles of rehabilitation.

77. Accordingly, what would be the appropriate penalty? It must be properly balanced i.e. sufficient to punish and to deter while not causing undo or excessive hardship while demonstrating reoccurrence will not be tolerated. 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 imperative analysis to assist the Commission in determining an appropriate and fair penalty.

78. Counsel for the Appellant drew our attention to Carson and Pembroke Police Service (27 July, 2001, O.C.C.P.S.). Constable Carson was charged with discreditable conduct and given a penalty of a reduction in rank from first class constable to fourth class constable for a period of one year with the return to first class constable to be in accordance with the provisions of the Act. He had made a death threat while on duty and in uniform to a civilian. He also had to face criminal charges. He had been under emotional stress at the time due to marital problems. He had eleven years of unblemished service and an excellent employment record. The Commission believed that under the circumstances, the officer deserved another opportunity to demonstrate that this was a brief, if not momentary, departure from an outstanding excellent service record.

79. The Commission varied the penalty to a reduction in rank from first class constable to second-class constable for a period of one year without conditions. We agree with counsel for the Appellant that in our case the mitigating factors were not given the appropriate weight as was demonstrated in the Carson decision. However, the conduct in Carson was materially different from our fact situation. In particular, Constable Carson committed the misconduct while under severe emotional stress and in the heat of the moment. By comparison, Sergeant Andrews was not under any emotional stress and had time to think clearly about what he was doing and had several opportunities to correct and remedy his conduct. He chose not to do so.

80. Counsel for the Respondent drew our attention to Gregg and Midland Police Service (11 December, 2001, O.C.C.P.S.). This case arose out of the same incident. Constable Gregg was the subordinate officer who accompanied Sergeant Andrews to Cocktails and Shotz. She was found guilty with respect to two counts of insubordination and one count of deceit. The penalty imposed was that she resign within seven days or be dismissed. There was an appeal with respect to both the convictions and the penalty. The Commission dismissed the appeal with respect to the convictions and varied the penalty from dismissal to demotion to second class constable for a period of one year. It was noted that she had an exemplary career of eight and a half years service until this incident.

81. The Commission did not believe that her reinstatement would cause irreparable harm to the Service. In that case, the Commission recognized certain similarities between this fact situation and the fact situation in Stitt and York Regional Police Service. Constable Stitt had been a police officer with the York Regional Police Service for seven years with no prior disciplinary convictions. He had fallen asleep in his cruiser and was later awakened by a civilian who advised him of a break-in at a convenient store. The officer chose not to investigate the break-in and later denied any contact with a civilian. At the hearing, he was found guilty of neglect of duty and deceit and demoted to second class constable for one year and forfeiture of forty-eight hours. On appeal, the Commission reduced the demotion to six months and forfeiture of twenty-four hours.

82. We believe that while the conduct in Stitt is more closely comparable to our fact situation to some degree. That being said, the conduct of Sergeant Andrews is more severe for a variety of reasons. Sergeant Andrews was in a supervisory role on the evening of November 23, 1999 and influenced a junior subordinate with eight and a half years of unblemished service to commit serious offences that resulted in her being convicted of several counts of misconduct. Moreover, Sergeant Andrews committed all of these offences voluntarily and perpetuated the wrong doings despite several opportunities to stop the process and correct his behaviour. He was also found guilty of five serious counts of misconduct.

83. We have concluded that while demotion is the appropriate penalty, the period of demotion in Stitt and in the Gregg decisions would be far too lenient. His misconduct was obviously much more severe and requires a more significant penalty. At the same time, we believe that the penalty imposed by the Hearing Officer is too severe given the mitigating factors stated earlier.

84. The appeal with respect to penalty will be allowed in that the penalty will be varied to a reduction in rank status and remuneration to second class constable for a period of two years after which he can move upwards in graduation from second to first class constable in accordance with the current provisions of Regulation 929 R.R.O. 1990. Thereafter, he shall be permitted to enter the promotional process for the rank of Sergeant and be required to rewrite the qualifying examine to demonstrate his suitability for the position of sergeant.

DATED THIS 1st DAY OF MAY, 2003.

Frederic G. Farrell, Q.C. Member, OCCPS

Orlando Zamprogna Member, OCCPS