Constable Robert Coon v. Toronto Police Service, 2003 CanLII 85797

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

Constable Robert Coon

APPELLANT

-and-

Toronto Police Service

RESPONDENT

DECISION

Panel: John A. Balkwill, Vice-Chair Barbara Morland Wellard, Member

Hearing Date: November 15, 2002, January 29 and January 30, 2003

Hearing Location:

Appearances:

Harry Black, Q.C. and Ms. J. Mulcahy, Counsel for the Appellant

George Monteith, Counsel for the Respondent

I. Introduction

1. This is an appeal by Constable Robert Coon from findings of guilt on seven counts of misconduct by Superintendent Edwin Hoey (the “Hearing Officer”) on February 8, 2001. As well, it is an appeal against the penalty of dismissal (unless he resigned within seven days) imposed on July 10, 2001.

II. Background

2. Constable Robert Coon has been a member of the Toronto Police Service for 23 years. During that period he worked at 51 Division, 14 Division, Investigative Support Services, 13 Division, 12 Division and 53 Division.

3. On June 20, 2000 Constable Coon was charged with four counts of insubordination, one count of neglect of duty, one count of discreditable conduct, and one count of corrupt practice contrary to the Schedule Code of Conduct found at Ontario Regulation 123/98 (the “Code”).

4. One charge related to the Appellant’s use of the CPIC system (Canadian Police Information Centre) between March 15, 1999 and March 24, 2000 to conduct approximately twenty-six inquiries on S.C. She is the Appellant’s former common-law spouse.

5. A further charge related to the Appellant’s use of the CPIC system between September 24, 1999 and December 20, 1999 to conduct numerous motor vehicle inquiries on a license plate registered in the name of S.C.

6. Another charge related to the Appellant’s use of the CPIC system between May 4, 1999 and October 18, 1999 to conduct numerous inquiries on R.S., then S.C.’s new common-law spouse.

7. Yet another charge related to the Appellant’s use of MANIX (a Toronto Police Service computerized information system) between March 15, 1999 and August 5, 1999 to conduct numerous inquiries on both S.C. and R.S.

8. A further charge related to the Appellant’s knowledge that S.C. was violating her bail conditions in November of 1999 when she moved from London, Ontario to Brampton, Ontario, and his failure to report or take any action in regard to the violation.

9. Another charge related to the Appellant’s conduct in relation to his contact with the Ministry of Correctional Services, Probation and Parole Services, in London, Ontario. It was alleged that he (without any attempt to indicate that his request was as a citizen and not a police officer) requested information regarding S.C., who was being released on parole. The conditions of S.C.’s parole would contain such personal information as her residence, her employment, and any treatment conditions.

10. The seventh and final charge related to the Appellant’s conduct on August 16, 1999 when he contacted the London Police Service.

11. The Appellant showed his badge to an employee of the London Police Service, informed her that he was with Metro Police, and stated that he needed a hard copy of an Occurrence Report. The Occurrence Report was not required for police business, but was for his own personal use.

The Hearing

12. The disciplinary hearing against Constable Coon commenced on January 23, 2001.

13. Constable Coon testified on his own behalf. He testified that he was involved in a relationship with S.C. from late 1989 until shortly after December 1994. She had a daughter M. who was born on April 10, 1987 and together they had a son T. who was born on June 17, 1992. By court order, Constable Coon had day-to-day care of T.

14. Constable Coon admitted that he knew the details of S.C.’s criminal record and did not deny that he did the numerous CPIC checks and inquiries as alleged.

15. On March 15, 1999, 6 days following his return to work after a four-year absence, Constable Coon was given a refresher course on the use of CPIC. He received his password and testified that he practiced to see if he could recall the procedure. One of the names that Constable Coon searched was S.C.’s. He noticed S.C. had been charged with domestic assault in November 1998. Constable Coon testified that he conducted these checks on March 24, 1999, April 7, 1999 and April 12, 1999. On May 4, 1999, Constable Coon testified that he checked the CPIC for S.C. because she wanted to spend time with the children and he wanted information regarding the domestic assault.

16. Constable Coon testified that on July 19, 1999, August 24, 1999 and September 9, 1999 he checked S.C. on CPIC because visitations with the children were approaching and he wanted to ensure there was no bench warrant outstanding for S.C. due to the outstanding charge of domestic assault.

17. On September 9, 1999 he learned that S.C. had been driving under suspension for medical reasons and that she had been charged with theft. She was to be in court on September 30, 1999. On September 13, 1999 and September 22, 1999, he again checked CPIC to confirm whether or not she was telling him the truth when she advised him that the suspension had been rescinded and she had her licence back.

18. Constable Coon testified that a couple of days before October 18, 1999 he checked both S. C. and R.S. on the CPIC system. He did a further check on November 8, 1999.

19. Constable Coon testified that on November 12, 1999, S.C. telephoned him during the evening and said that she wanted to get out of her house and move the next day. He subsequently attended at her residence on Wonderland Road on November 13, 1999, with a rented truck and helped S.C. pack and move out.

20. Constable Coon helped S.C. and her brother move some of her personal belongings into a storage locker. He informed her that she should advise the London Police Service that she had moved. Constable Coon said that he told S.C. of the condition that she had to reside in London and that she had to contact London Police. He testified that for six nights between November 13, 1999 and December 19/20, 1999 S.C. stayed at his residence (outside of London, Ontario).

21. Constable Coon did further checks on S.C.’s name using the CPIC system on January 14, and 31, 2000 and again on February 15, 2000. On February 18,Constable Coon did a further CPIC inquiry on S.C. to check to see if there was a bench warrant outstanding and returnable for the court date of February 16, 2000. He did the same on February 23 and February 28, 2000.

22. Constable Coon testified that he did not share the details he obtained from the CPIC checks with any one and that he did not use the information for any personal purpose nor did he use it for any family court dispute.

23. He said that he sent the fax to London seeking the bail and probation papers for S.C. on March 2, 2000. He testified that he attended at the London Police Service in August of 1999 and told the officers that his name was Bob Coon. He asked if he could have a hard copy of the Occurrence Report from Wonderland Road. When asked for his police badge, he produced it.

24. In his testimony he described the history of his relationship with S.C. and her addictions and his efforts to obtain treatment for her. He advised that the Family Court had granted him full custody of both children. A custody/access assessment had recommended that Constable Coon have custody with access to be determined by him provided that S.C. was not under the influence of drugs or alcohol.

25. In September 1998, S.C. moved to London with R.S. Constable Coon had agreed that her daughter, M., could live with her. Constable Coon recounted his involvement in his children’s lives. He told the Hearing Officer of the change in M.’s academic performance since she began living with him. He participated in all of their school activities. He had coached hockey and soccer for the past two seasons. He coached his daughter in triathlons and volunteered at his son’s school.

26. It was also noted that Constable Coon had been suspended from the Toronto Police Service from March 1995 until March 1999 as a result of criminal charges that had been laid against him. He was eventually acquitted by a jury in late 1997.

27. He testified that on March 5, 1999, he had been reduced in rank to second class Constable for one year after having been found guilty in 1998 of three counts of insubordination, one count of corrupt practice, and two counts of neglect of duty. Some of these charges related to a failure by Constable Coon to submit suspected cocaine and a property report to the drug repository or officer in charge. The other charges related to the fact that in 1994, Constable Coon failed to conduct a proper investigation or document an incident concerning a suspect who, before running away, threw a crack pipe and baggie to the ground. Further, Constable Coon had submitted money located in a search as found property and failed to conduct a proper investigation into the money or return it to its rightful owner. After notifying officers of a breach of a drug dealer’s conditions, he failed to prepare the paperwork regarding the breach or to document the surrender of a passport. Finally, on May 21, 1992 he forfeited three days for discreditable conduct for another matter.

28. The record also shows that through the course of his career, Constable Coon has received 37 letters of commendation, awards and positive documentations. At the hearing, a number of officers, sergeants and senior officers spoke on behalf of Constable Coon. Additionally, family members recounted Constable Coon’s concern for his children and his attempts to care for them.

29. The brother and sister of S.C. testified about Constable Coon’s good character and the fact that they highly regarded and respected him as a parent.

30. Constable Coon’s two sisters testified about Constable Coon’s parenting skills and the efforts he made to assist S.C.

31. Staff Sergeant Villani, Sergeant Norm Gridley (retired) and Sergeant Brennan, long serving members of the Toronto Police Service gave evidence as to the character, professionalism and usefulness of Constable Coon as a police officer.

32. Staff Inspector Fernandes, the Unit Commander of 53 Division testified as to the good character of Constable Coon. He testified that he is very reliable and that he had absolutely no problems with Constable Coon’s work habits.

Appellant’s Position

33. Mr. Harry Black on behalf of the Appellant submitted that there had been a failure to comply with the mandatory provision in section 69(11) of the Police Services Act R.S.O. 1990, c. P.15 as amended. Section 69(11) reads: “The oral evidence given at the hearing shall be recorded and copies of transcripts shall be provided on the same terms as in Ontario Court (General Division).”

34. The transcript in this case was not prepared by a court reporter and there are many inaudible passages in the transcript especially in the evidence of Constable Coon. A quick count shows that there are at least 35 inaudible passages in the transcript of Constable Coon’s evidence.

35. He urged us to find that the transcript was prejudicial to the Appellant’s right to a full and fair appeal. He stated that this was of particular significance as the penalty under appeal involves dismissal.

36. It was suggested that the Hearing Officer erred in reversing the burden of proof in the case. He focused his enquiry on whether the Appellant had provided an acceptable justification for his actions rather than determining whether the prosecutor had proven each of the essential elements of insubordination, neglect of duty, discreditable conduct and corrupt practice on clear and convincing evidence.

37. It was argued that the Hearing Officer erred in failing to consider that the number of CPIC checks were for “police business”. It was further suggested that the Hearing Officer erred when he, in effect, stated a conclusion, i.e. “(U)sing police computers and telecommunications is prohibited” as his rationale.

38. Constable Coon testified that he received his password and practiced to see if he could recall the procedure. It was argued that the Hearing Officer erred in rejecting Constable Coon’s explanation when he found that Constable Coon had a personal purpose for what he did by relying on the assertion that the Appellant could have simply checked “numerous people with criminal records”.

39. Mr. Black argued that in finding the Appellant guilty of unauthorized use of CPIC, the Hearing Officer failed to take into account the uncertainty expressed by Detective Sergeant Ramer when the Appellant enquired of him concerning his use of police information. He suggested that the Hearing Officer erred in failing to apply the evidence before him and instead engaged in speculation and conjecture to support adverse findings with respect to the conduct of the officer.

40. It was asserted that the Hearing Officer disregarded the overwhelming evidence of Constable Coon’s concerns and fears for the safety of his children.

41. It was noted that the first four charges allege that the inquiries were contrary to Rule 4.13.1 of the Rules of the Toronto Police Service. Rule 4.13.1 was not formally proven at the hearing. As a result, it was argued that the prosecutor failed to prove on clear and convincing evidence that there had been four counts of insubordination.

42. It was submitted that the Hearing Officer erred in concluding that the Appellant had a legal duty to act against S.C. and to report that she had moved out of London with respect to her stay in Brampton.

43. It was argued that the Hearing Officer disregarded the relevant evidence that Constable Coon had contacted authorities when there had been a bench warrant outstanding for S. C. This evidence was highly relevant in emphasizing that the checks the Appellant made were not personal but were for police business. It was also relevant evidence that the Appellant’s conduct was not likely to bring discredit to the reputation of the police service.

44. It was pointed out that nowhere in the decision of the Hearing Officer is there any reference to the conduct of the Appellant being “likely to bring discredit upon the reputation of the police force.” Instead the Hearing Officer pondered whether Constable Coon’s conduct would be considered discreditable conduct to the community at large, which is not the appropriate test.

45. It was argued that the Hearing Officer erred in finding Constable Coon guilty of corrupt practice by disregarding the words of “corrupt practice” and thus rendering them meaningless or superfluous. It was also suggested that he erred in disregarding the requirement that there be an element of moral degeneracy in the finding of corrupt practice. On this point Mr. Black referred us to the cases of Police Constable P.G. v. A.G. (unreported, 18 April, 1996, Ont. Div. Ct.) and Re Bernstein and College of Physicians and Surgeons (1977), 1977 CanLII 1072 (ON HCJ), 15 O.R. (2d) 447 (Ont. Div. Ct.).

46. Mr. Black submitted that without any basis on the record, the Hearing Officer found that Constable Coon’s evidence was contrived, self-serving and empty. He stated that this is completely without merit. Constable Coon testified in his own defense and was entitled to respond.

47. Having regard to all of the circumstances of the case, some of the reasons put forward by the Appellant that the penalty imposed in this case was harsh and excessive are:

a. Constable Coon’s lengthy service with the Toronto Police Service (23 years);

b. excellent evaluations;

c. numerous letters of commendations;

d. uncontradicted character evidence that he is an excellent police officer;

e. the devastating financial impact of dismissal to himself and to his family for whom he is the sole financial support;

f. the apology he gave to the Toronto Police Service;

g. his lack of disciplinary record for CPIC violations; and

h. Constable Coon did everything in the open using his name and badge number and did not attempt to hide any of his conduct.

48. Mr. Black stated that the Hearing Officer disregarded the fundamental principle of sentencing that “consistency is the hallmark of fairness”. Scholfield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.) It was also argued that the penalty imposed in this case was unfair, inconsistent, arbitrary and discriminatory having regard to penalties imposed in previous decisions for similar offences. It is noteworthy that counsel for Constable Coon provided the Hearing Officer with over 111 penalty cases relating to officers in allegedly similar cases.

49. Mr. Black argued that the Commission has jurisdiction to vary a penalty where there has been a failure to give proper weight to mitigating factors. The Commission also has jurisdiction to vary a penalty which is unreasonable, would amount to an injustice or unfairness or where all relevant factors have not been fairly or impartially considered.

50. Favretto and Ontario Provincial Police (13 February 13, 2002, O.C.C.P.S.) and Carson and Pembroke Police Service (27 July, 2001, O.C.C.P.S.).

51. Mr. Black submitted that the Hearing Officer misstated, to Constable Coon’s detriment, the evidence as to the historic inutility of the Peel Regional Police in assisting Constable Coon in dealings with S.C’s access to their children and the potential threat to the children while she exercised her access.

52. Mr. Black argued that the Hearing Officer misstated the evidence to Constable Coon’s detriment when he indicated that Constable Coon had said that there was no doubt about the Service’s position on CPIC but that he had to look after his children’s safety first.

53. Mr. Black asserted that the Hearing Officer, in determining to terminate the career of Constable Coon, repeated and specifically relied upon all of the errors that he had made in finding him guilty and exaggerated them when he referred to Constable Coon’s conduct as “stalking by records surveillance.”

54. Finally, he stated that the Hearing Officer erred in penalizing Constable Coon for matters beyond the scope of the original Notice of Hearing. Re: Golomb and College of Physicians and Surgeons (1976), 1976 CanLII 752 (ON HCJ), 12 O.R. (2d) 73 (Ont. Div. Ct), Smith v. Murdoch (1987), 25 O.A.C. 246 (Ont. Div. Ct.) and Tse and College and Physicians and Surgeons (1979), 1979 CanLII 2047 (ON HCJ), 23 O.R. (2d) 649 (Ont. Div. Ct.).

55. Accordingly, the Appellant requested that the findings of misconduct by the Hearing Officer be quashed and that the allegations of misconduct be found unsubstantiated or in the alternative, that the penalties of resignation/dismissal be revoked and in their place, a lesser penalty be substituted.

The Respondent

56. Mr. Monteith submitted that the Respondent had complied with the mandatory provisions in subsection 69(11) of the Act. The Respondent did retain a transcriber, and the Appellant was provided with transcripts of the January 23, 2001 hearing, the February 8, 2001 judgment, and the July 10, 2001 sentence.

57. It is the Respondent’s position that the inaudible passages in the transcripts are simply due to the fact that the transcriber could not understand what the witnesses were saying at those points of the proceedings and did not prejudice the Appellant’s right to a full and fair appeal.

58. The Respondent submits that the Hearing Officer did not reverse the burden of proof in the January 23, 2001 Toronto Police Service disciplinary hearing. Rather, the Hearing Officer found that the “prosecution ha[d] proved its case on clear and convincing evidence” and did not reverse the burden in the Appellant’s hearing.

59. It was further submitted that the Hearing Officer considered both the number and the purpose of the CPIC checks and ruled that he “d[id] not accept it was for police purposes and police business”.

60. It was noted by Mr. Monteith that Sergeant Ramer testified as to his May 9, 2001 conversation with the Appellant, and to the fact that he advised him that any use of CPIC for personal reasons was not allowed. CPIC could only be utilized exclusively for police purposes. Sergeant Ramer’s e-mail stated that he should “conduct [himself] as would any citizen and contact the police in whatever jurisdiction applies and have them investigate”.

61. The Hearing Officer further held that, “CPIC is a federally controlled information system and its abuse is viewed as serious misconduct. Access for personal reasons because of an individual’s employment is strictly prohibited.” The Respondent urged us to accept this.

62. The Respondent referred to several cases concerning the use and abuse of CPIC. The Commission ruled, in Burdett and Guelph Police Service (13 May, 1999, O.C.C.P.S.) that the use of the CPIC system for personal, or self-help reasons, constitutes misconduct and in Sterling and Hamilton-Wentworth Regional Police Service (1999) 3 O.P.R. 1356 (O.C.C.P.S.), that a misconduct charge against an officer would be substantiated if a CPIC inquiry proves to be conducted for “no employment related reason.” Accordingly, the Respondent submitted that the Hearing Officer’s rationale for ruling that the Appellant’s use of the CPIC system for personal use constitutes misconduct, was wholly correct.

63. Mr. Monteith stated that the e-mail from Sergeant Ramer, addressed to the Appellant referred him to Rule 4.13.01 and 4.13.05 with respect to Constable Coon’s inquiry that CPIC can only be utilized exclusively for police business. He was advised that he was not entitled to use it to obtain information to assist him in child custody proceedings. Further, after the Appellant informed Sergeant Ramer that he wanted to use CPIC to ensure the safety of his children, Sergeant Ramer told the Appellant that any use of CPIC for personal use was not allowed.

64. The Respondent submitted that the Hearing Officer did not engage in speculation when he stated, “I believe that there are valid reasons for the information … written in large red letters that whoever held the file was not to release any information to Robert Coon.” An employee of the Ministry of Correctional Services testified that he did not release any information concerning S.C. because of the large red lettered note that stated that the file was not to be released to Detective Constable Coon or to any other Toronto police officer.

65. It was pointed out that the Appellant’s March 2, 2000 and March 3, 2000 requests to the Ministry of Correctional Services Probation and Parole Services, London, were not for police business and therefore these actions were likely to bring discredit upon the reputation of the police service. Accordingly, the Hearing Officer did not err in his conclusion that the Appellant was guilty of discreditable conduct.

66. It was argued that taking all of the evidence introduced at the trial as a whole, and giving proper consideration to the testimony before him, the Hearing Officer did not err, did not act without evidence, and did not base his decision on speculation, when he concluded that the Appellant was attempting to “track” S.C.

67. The Respondent respectfully submitted that the issue as to whether S.C. being returned to London was of her own making, was irrelevant to the Hearing Officer’s finding of guilt on the charge of neglect of duty.

68. He stated that on charge number five, the issues before the Hearing Officer were:

(a) Was the Appellant aware that S.C. was on bail for various Criminal Code offences and was he aware that one of the conditions of S.C.’s bail was that she was to reside in London, Ontario?

(b) Did S.C. reside with the Appellant in Brampton, Ontario, in November 1999 and/or did the Appellant have knowledge that S.C. was residing in Brampton contrary to her conditions of bail?

(c) If S.C. did reside with the Appellant in Brampton, Ontario, and/or if the Appellant was aware that S.C. was residing in Brampton, did the Appellant’s failure to report said violation of S.C.’s bail constitute a breach of the appellant’s duty to report?

69. The Respondent submitted that given all of the evidence at the trial, the Hearing Officer did not err in his conclusion that the Appellant was guilty of neglect of duty with respect to this issue.

70. The Respondent submitted that the prosecution had proved Rule 4.13.1 in evidence, and thus, the prosecutor did prove, on clear and convincing evidence, that there had been four counts of insubordination, and the Appellant was guilty, on clear and convincing evidence, of all four counts of insubordination. Given all of the evidence introduced at the trial and giving proper consideration to all of the testimony before him, the Hearing Officer did not err in his conclusion that the Appellant was guilty of four counts of Insubordination in relation to the first four counts.

71. Mr. Monteith submitted that the Hearing Officer did not err in concluding that the Appellant had a legal duty to act against S.C. in respect of her stay in Brampton or to make a report that S. C. did reside at the Appellant’s home in November 1999. The Appellant knew she was in breach of her conditions of bail.

72. The Respondent compared the facts in this case and stated that they are similar to the facts set out by the Commission in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.). Accepting this, the Appellant had a duty and an obligation to report S.C. for her stay in Brampton. The duty and obligation arose from the oath that the Appellant took as a recruit and the provisions of the Act.

73. Taking all of the evidence led at the trial and giving proper consideration to all of the testimony before him, the Respondent urges us to find that the Hearing Officer did not err in his conclusion that the Appellant was guilty of discreditable conduct.

74. The Respondent submitted that there was clear and convincing evidence to support a finding that the Appellant was guilty of “corrupt practice.” Section 2(f)(v) of the Code indicates that an officer is guilty of such conduct if he or she “improperly uses his or her character or position as a member of the police force for private advantage”.

75. It was noted that the Appellant showed a London Police Service employee his police badge, informed her that he was with Toronto Police Service and stated that he needed a hard copy of an Occurrence Report. The Occurrence Report was not required for police business, but was for his own personal use. Given this, it was submitted that the Hearing Officer did not err in his conclusion that the Appellant was guilty of corrupt practice.

76. The Respondent submitted that the Hearing Officer imposed the appropriate penalty, particularly in view of the Appellant’s conviction for discreditable conduct in 1992 and his convictions for one count of corrupt practice, two counts of insubordination, and two counts of neglect of duty in 1998.

77. It was noted that in determining whether dismissal would be the appropriate sentence, that the Hearing Officer considered the issue of reformation or rehabilitation, damage to the reputation and the image of the police force, and the need for specific and general deterrence.

78. The Hearing Officer found that not only did Constable Coon damage the reputation of Toronto Police Service with the Ministry of Correctional Services and the London Police Service, but also the broader body of the courts and the public to whom he is ultimately accountable.

79. Mr. Monteith submitted that, in addressing the need for general deterrence, the dismissal of the Appellant will send a clear and unequivocal message to the entire Toronto Police Service that an officer’s wilful disregard of the rules and regulations, the oath of office, and the core values of the police service, will bring serious sanctions. Accordingly, the Hearing Officer, given the Appellant’s disciplinary history and the numerous incidents of misconduct that were committed by the Appellant, was wholly correct when he ruled “Robert Coon’s usefulness as a police officer has been completely annulled.”

80. The Respondent submits that the Appeal be dismissed.

III. Decision

81. We must first deal with the issue regarding the completeness and accurateness of the transcripts. Ideally they should be complete and free of error. This may not, however, always be possible. Incidents of more than one person speaking or not talking directly into the microphone can inherently lead to difficulties. In Verreau Estate v. Reimer [1994]. M.J. No. 183 the Manitoba Court of Appeal considered this issue and stated at page 6 of its decision:

If this was a criminal proceeding, there would be no alternative but to order a new trial … and finally, I am satisfied that, notwithstanding the state of the transcript, the Court is able to properly dispose of this appeal, although not without some difficulty and concern.

82. The panel is able to fully understand and appreciate this case based on the transcripts and the arguments put forward by the Appellant and the Respondent. The concerns raised by the Counsel for the Appellant do have merit. The concerns, however, do not reach the level that the panel would feel obligated to declare this hearing null and void. The panel in this case was able to reach a proper and fair decision on the record before it.

83. The standard of proof to be used by any Hearing Officer in order to find an officer guilty is that the offense must be proven on clear and convincing evidence.

84. It is certainly recognizable that the Hearing Officer is an experienced senior officer of the Toronto Police Service. He brings not only practical knowledge to his deliberations but also an understanding of the rules under which every police officer must conduct himself or herself.

85. The Commission has consistently stated its role as an appellate body with respect to an appeal from findings of misconduct. This principle has been stated in numerous decisions and can be found in the Commission’s decision in Williams and the Ontario Provincial Police at page1058:

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 that the conclusions of the adjudicator, as to the credibility of the witnesses, cannot be reasonably accepted.

The question to be asked in this case is, are the conclusions, of the adjudicator void of evidentiary foundation?

86. Thus, the Commission’s role is to determine if the Hearing Officer had evidence before him to support his findings and conclusions.

87. The Hearing Officer has the advantage of seeing and hearing the witnesses. With that advantage he is in the best position to place the appropriate weight on the evidence in reaching his decision.

88. The Hearing Officer had evidence before him that Constable Coon had admitted to conducting the CPIC and MANIX checks and had aided in the relocation of S.C. from London to Brampton in spite of his knowledge of S.C.’s residency requirement to live in London. Constable Coon additionally provided his badge number and name to a London Police Service employee, in order to obtain an Occurrence Report. Constable Coon admitted he telephoned and faxed the Ministry of Correctional Services, Probation and Parole Services in London.

89. Given these facts, we cannot conclude that the Hearing Officer’s decision was without evidentiary foundation or unsubstantiated. The panel is satisfied that there was more than sufficient evidence before the Hearing Officer to conclude that Constable Coon had misconducted himself.

90. The Commission has ruled in the past that the personal use of CPIC constitutes major misconduct. The use of CPIC must be solely reserved for official police work and must never be used for personal reasons. Fundamental to the successful functioning of the CPIC system is a strong sense of trust; trust that the system is there to help police officers in pursuit of their official duties and trust that no police officer will purposely or wilfully misuse the system.

91. For the foregoing reasons, the panel dismisses the Appeal as to the conviction of Constable Coon.

92. Finally, we must deal with the matter of penalty imposed upon Constable Coon.

93. This Commission recently identified the various factors that the Hearing Officer must take into consideration when determining penalty (Krug and Ottawa Police Service (21 January, 2003, OCCPS)). These factors can either be mitigating or aggravating. Our role, as has been stated in numerous decisions of the Commission, is to assess whether or not the Hearing Officer fairly and impartially applied the relevant factors or sentencing principles to the case before him. We can only vary a penalty decision if there is a manifest error in principle or the proper factors are not considered. This is not something that the Commission can do lightly (Quintieri and Toronto Police Service (29 October, 2001) and Krug and Ottawa Police Service, supra.).

94. It is clear from his decision that the Hearing Officer was aware and considered that Constable Coon had been employed by the Toronto Police Service for 23 years. It is also clear from the evidence introduced by his Counsel that Constable Coon was a caring, loyal, and a dependable father and had many accolades from his fellow officers as to his on-duty deportment. These were mitigating factors.

95. The Hearing Officer in his decision on penalty was aware of the mitigating factors but these were offset by the fact that Constable Coon had previous convictions for corrupt practice, neglect of duty and discreditable conduct.

96. The sheer number of the counts before the Hearing Officer were a factor. As we have stated in previous cases, the seriousness of the offence alone can justify dismissal. Further, the Hearing Officer felt that the penalty should send a message concerning the misuse of CPIC. He considered the need for deterrence.

97. The panel is satisfied that the Hearing Officer took into account those positive attributes of Constable Coon’s record. That being said, he balanced this with the seriousness of the offences, the number of charges and Constable Coon’s previous record. It is true that the dismissal will have a major economic impact on Constable Coon and his family. However, that cannot be determinative of the issue. We find that the Hearing Officer did consider this factor. It is not open to us to second-guess his decision. In our opinion, there was ample evidence before him to support a dismissal. There was no error in his interpretation of the evidence. The penalty of dismissal falls within the acceptable range considering the seriousness of the matter and the repeated abuse of the CPIC system by Constable Coon.

98. Further, Constable Coon, although stating he was remorseful, tried to justify his behaviour by stating that S.C. was a criminal and he had every right to do a CPIC enquiry for that reason. Constable Coon felt justified in doing the searches for the safety and well being of his children. As a police officer, he should not be in a better position than an ordinary citizen who would not have access to CPIC in similar circumstances. This panel believes that Constable Coon, to this date, still does not believe that he acted inappropriately. We are not convinced that Constable Coon would not use the CPIC system again for his own personal use.

99. For the above reasons, the panel does not see, in the Hearing Officer’s decision as to penalty, the type of error that would make it necessary to alter the conclusion.

100. Accordingly, the panel denies Constable Coon’s appeal against penalty.

DATED AT TORONTO THIS 10th DAY OF APRIL 2003.

Dr. John A. Balkwill Barbara Morland Wellard

Vice-Chair, OCCPS Member, OCCPS