ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Staff Sergeant Kenneth Kyle
APPELLANT
-and-
York Regional Police Service
RESPONDENT
DECISION
Panel: Murray W. Chitra, Chair E.E. Kelly Culin, Member
Hearing Date: January 6, 2003
Hearing Location:
Appearances:
Harry G. Black, Q.C., Counsel for the Appellant
Elizabeth Cowie, Counsel for the Respondent
I. Introduction
This is an appeal from the disciplinary penalty imposed on Staff Sergeant Kenneth Kyle by Superintendent G. Smyth (the “Hearing Officer”) on January 15, 2002.
This penalty arose following a plea of guilt on December 5, 2001 to one count of discreditable conduct contrary to section 2(1)(a)(ix) of the Code of Conduct found at O. Reg. 123/98 as amended (the “Code”).
II. Background
Staff Sergeant Kyle has been an officer with the York Regional Police Service (the “Service”) for 29 years.
On April 15, 1998, while off duty, Staff Sergeant Kyle, drove his car while impaired. He struck another vehicle while in a plaza in Newmarket. The owner of that car (Mr. H.1) was not in his vehicle. He was using a nearby pay phone.
Mr. H. is a black man. He heard the collision and walked over to speak to Staff Sergeant Kyle. A discussion took place. It became heated and Staff Sergeant Kyle made a number of insulting racial remarks. By way of example, Staff Sergeant Kyle suggested that Mr. H. get his “Nigger ass out of town”. These offensive comments were heard by a number of bystanders. As well, Staff Sergeant Kyle identified himself as a police officer.
Mr. H. returned to the pay phone to call the police. Staff Sergeant Kyle followed him and while Mr. H. was using the phone kicked him in the back. The police arrived and took Staff Sergeant Kyle into custody. At the station he was given two breathalyzer tests. The readings were 200 and 190 milligrams of alcohol in 100 millilitres of blood.
As a result of these events, Staff Sergeant Kyle was charged with three criminal offences. These were impaired operation of a motor vehicle, operating a motor vehicle with excess alcohol in his blood and assault.
On February 8, 2000, Staff Sergeant Kyle appeared in court and pled guilty to impaired operation of a motor vehicle and assault. He was found guilty of these matters and the third charge was withdrawn. These events received attention in a number of local newspapers.
On April 3, 2000, Staff Sergeant Kyle appeared for sentencing. For the impaired conviction he received a fine of $1,200 and was prohibited from driving for one year. Passing of sentence on the assault was suspended and he was placed on probation for twelve months.
As a consequence of the criminal convictions Staff Sergeant Kyle was charged with the disciplinary offence of discreditable conduct contrary to section 2(1)(a)(ix) of the Code. That provision deems it to be misconduct if an officer “is guilty of an indictable criminal offence or a criminal offence punishable on summary conviction”.
The Hearing
On December 5, 2001, Staff Sergeant Kyle appeared before the Hearing Officer and pled guilty. The transcripts from the criminal proceedings were received as exhibits.
Both parties agreed that an appropriate penalty would be demotion to the rank of sergeant for one year. However, they disagreed over what should happen following the period of demotion. Counsel for Staff Sergeant Kyle argued that he should be returned to his former rank. The prosecutor argued that he should remain at the rank of sergeant until such time as he might be successful in any promotional competition.
The Hearing Officer was provided with copies of Staff Sergeant Kyle’s most recent performance evaluations. As well, he received a written report from Staff Sergeant Kyle’s supervisor, Inspector John Girvan. A number of character letters were also provided.
The Hearing Officer was advised that at the time of the events in question Staff Sergeant Kyle was experiencing personal problems. It would appear that his 24 year-old daughter had been injured in an automobile accident. She had been a passenger in vehicle that had been struck by a speeding car driven by an off duty York Regional Police officer who was racing with another off duty officer.
Both constables received criminal convictions, fines and periods of probation. As well, they were demoted for a period of time. They were reassigned in their duties and had contact with Staff Sergeant Kyle from time to time. The Hearing Officer was advised that these events made Staff Sergeant Kyle angry and depressed and he began to drink.
The Hearing Officer received letters from one doctor concerning Staff Sergeant Kyle’s depression. Another letter was provided by a specialist in alcohol addiction. It described how Staff Sergeant Kyle had taken antabuse for a number of months and had been abstaining from the use of alcohol. Finally, the Hearing Officer was provided with a letter of apology that Staff Sergeant Kyle wrote to Mr. H. on March 16, 2000.
On January 15, 2002 the Hearing Officer imposed the agreed upon penalty of demotion to sergeant for twelve months. He also ordered that at the end of this term Staff Sergeant Kyle would “remain a Sergeant but are permitted to enter the promotional process for the rank of Staff Sergeant at the first opportunity”. Further, Staff Sergeant Kyle would “not be required to rewrite the qualifying examination outlined in Article 25.1 of the current York Regional Police Uniform Working Agreement”.
Appellant’s Position
Mr. Black takes issue with the penalty imposed by the Hearing Officer. Specifically, he argued that the portion of the penalty extending the demotion beyond a year was not in accordance with the law, represented an improper delegation and was harsh and excessive. Further, he asserted that the Hearing Officer went beyond the scope of the Notice of Hearing in penalizing the Appellant in this manner.
Mr. Black argued that the imposition of an ‘indeterminate’ suspension represented an illegal penalty that does not comply with section 68(1)(c) of the Police Services Act R.S.O. 1990. c. P.15 as amended (the “Act”). He drew our attention to the legislative history of this section and comparable provisions in five other Canadian jurisdictions.
As well, he cited: Air Canada and Canadian Air Line Flight Attendants Association (1979), 1979 CanLII 3944 (CA LA), 22 L.A.C. (2d) 371 (Adams), Rusnak and Tillsonburg Police Service (1979), 1 O.P.R. 406 (O.P.C.), Sutton and Barrie Police Service (1982), 2 O.P.R. 552 (O.P.C.), Batorski and Niagara Regional Police Service (1982), 2 O.P.R. 569 (O.P.C.), Watling and Woodstock Police Service (1968), 1 O.P.R. 11 (O.P.C.), Collegiate/Arlington Sports (1984), 1984 CanLII 5188 (ON LA), 15 L.A.C. (3d) 220 (Beck), X v. Y. (1994), 1 O.L.R. 215 (Ont. Bd. Inq.), Giles and Halton Regional Police Force (1981), 1981 CanLII 1955 (ON HCJ), 33 O.R. 666 (Div. Ct.) and Kayne and Metropolitan Toronto Police Service (1986), 2 O.P.R. 697 (O.P.C.).
Section 68(1)(c) authorizes a Hearing Officer to demote a police officer “specifying the manner and period of demotion”. Mr. Black drew our attention to a number of dictionary definitions of the word ‘specify’. On this point he noted the cases of Bassuny v. McLeod [1996], O.J. No. 1439 (Ont. Gen. Div.), Ontario (Civilian Commission on Police Services) v. Browne (2001), 2001 CanLII 3051 (ON CA), 56 O.R. (3d) 673 (Ont. C.A.) and Ouimet v. The Queen 1977 CanLII 3095 (FC), [1978], 1 F.C. 672 (Fed. Ct., Tr. Div.).
Mr. Black asserted that a Hearing Officer cannot delegate his or her authority to impose the terms of a demotion to others. He argued that to do so offends the fundamental principle of natural justice known as “delegatus non potest delegare”. He drew our attention to Ontario Provincial Police (Commissioner) v. Silverman [2001], O.J. No. 2080 (Div. Ct.), Carter and Metropolitan Toronto Board of Commissioners [1971], 3. O.R. 559 (Ont. Ct. Jus.) and Doyle v. Restrictive Trade Practices Commission 1985 CanLII 5573 (FCA), [1985], 1 F.C. 362 (Fed. Ct., App. Div.).
In the alternative, Mr. Black argues that the penalty itself is harsh and excessive. On this point he noted several factors including the Appellant’s long and unblemished work history, remorse, plea of guilt, apology, and medical treatment, community support. He noted Carson and Pembroke Police Service (July 27, 2001, O.C.C.P.S.).
Finally, Mr. Black argued that the penalty went beyond the scope of the Notice of Hearing. He suggested that there was no evidence before the Hearing Officer as to Staff Sergeant Kyle’s unsuitability to return to his position or to continue to perform his normal duties in a satisfactory manner. On this point he cited Golumb and College of Physicians and Surgeons (1976), 1976 CanLII 752 (ON HCJ), 12 O.R. (2d) 73 (Div. Ct.), Percheson and College of Physicians and Surgeons of Ontario (1985), 1985 CanLII 2062 (ON HCJ), 20 D.L.R. (4th) 295 (Div. Ct.) and Re Tse and College of Physicians and Surgeons (1979), 1979 CanLII 2047 (ON HCJ), 23 O.R. (2d) 649 (Div. Ct.).
In conclusion he asked that the penalty be varied to a simple demotion to sergeant for one year.
Respondent’s Position
Ms. Cowie on behalf of the Respondent argued that the penalty imposed by the Hearing Officer was sound and should not be disturbed.
She asserted that a reading of section 68(1)(c) giving the words of that provision their plain and ordinary meaning support the notion that a demotion need not be for a fixed term. She suggested that the ‘period’ and ‘manner’ of a demotion can either be prescribed by the passage of time or the fulfillment of conditions.
She noted that penalties of demotion followed by eligibility for promotion in the normal course have been upheld in the past by appellate tribunals. On this points she citied Ontario (Civilian Commission on Police Services v. Browne supra., Ouimet v. The Queen supra., and X v. Y supra.
Ms. Cowie argued that a Hearing Officer is in the best position to determine an appropriate penalty and should only be varied by an appellate tribunal when it is unreasonable, amounts to an injustice or all relevant factors were not fairly or impartially considered. She suggested that penalties must not be measured against an absolute standard but must recognize the needs of a particular service or community.
In support of these arguments Ms. Cowie drew to our attention Williams and Ontario Provincial Police ((1995), 2 O.P.R. 1047 (O.C.C.P.S.), Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.), Carson and Pembroke Police Service supra., Favretto and Ontario Provincial Police (13 February, 2002, O.C.C.P.S.), and Lewin and Toronto Police Service (23 July, 2001, O.C.C.P.S).
Ms. Cowie identified several factors to be considered when imposing a penalty. She noted that there is a significant public component to any penalty. She suggested that this must include consideration of the affect of the conduct on the victim, public denunciation and an assessment of whether the officer in question has demonstrated unsuitability to hold a particular rank or position. On these issues she citied Schofield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.) and Brayshaw and Ontario Provincial Police (1992), 2 O.P.R. 937 (O.C.C.P.S.).
Ms. Cowie argued that the penalty in question was not harsh or excessive. She noted that officers holding supervisory rank are held to a higher standard. She identified cases that involved intoxicated and abusive conduct. These included Dempsey and Waterloo Regional Police Service (1991), 2 O.P.R. 909 (O.C.C.P.S.), King and Metropolitan Toronto Police Service (1992), 2 O.P.R. 923 (O.C.C.P.S.), and Gulliver and Brantford Police Service (1997), 3 O.P.R. 1175 (O.C.C.P.S.). She pointed out that these three cases involved this Commission imposing a demotion with any subsequent promotion being at the discretion of local authorities.
Ms. Cowie argued that the Hearing Officer in this case carefully considered all factors and imposed a substantially agreed upon penalty. She stated that the events in question raised a number of obvious concerns about the Appellant’s suitability as a staff sergeant and thus the portion of the disposition referring to the steps to be taken after the twelve months were appropriate.
Ms. Cowie asked that this appeal be dismissed.
III. Decision
- Section 68 of the Act identifies those penalties that may be imposed following a conviction at a disciplinary hearing. One is demotion. Specifically section 68(1)(c) states:
68(1) The Chief of Police may …
(c) demote the police officer, specifying the manner and period of the demotion …
It is this provision that is at the heart of this appeal.
Mr. Black suggests that under this section a Hearing Officer can only impose a demotion for a fixed period. At the end of the identified period of demotion (be it 6 months or 15 years) the officer must always return to his or her former rank. Ms. Cowie asserts that it is also possible to impose a period of demotion where an officer does not immediately return to his or her former rank, but must meet the requirements of the normal promotional process.
The answer to this dispute must be found in a plain and purposeful reading of the words of the statute. The Ontario Court of Appeal recently noted at page 16 of Ontario (Civilian Commission on Police Services) v. Browne that the Act does not define the terms “specify” or “specified”. The Court concluded that for the purposes of processing public complaints under section 72(11) of the Act that “specify” meant “clearly providing the information necessary for the chief to comply with his or her duty”.
We also believe that similar logic would apply here. Section 68(1)(c) requires a Hearing Officer who wishes to demote a police officer to provide clear details to ensure that the Service can give effect to demotion and that the officer understands the precise extent and nature of the sanction imposed.
A Hearing Officer is required to clearly articulate the “manner” and “period” of any demotion. In ordinary language the word “manner” refers to the “way a thing is done or happens”. Similarly, the concept of “period” normally denotes a portion of time measured in some fashion. This can include fractions of time or be measured in relation to specific events or occurrences.
In our view the concepts of “manner” and “period” must not be given the narrow meaning of a loss of status for a fixed number of days or months. In this view we are supported by the conclusions of the Board of Inquiry in X v. Y. In that case, the Board was asked to interpret the exact same provision. It found at page 18 of that decision:
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 or 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). This 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 to 1139 in Stitt v. York Regional Police Service (1997) 3 O.P.R. 1130 (O.C.C.P.S.).
As such, we have no difficulty with the legality of the penalty imposed by the Hearing Officer in this case i.e. demotion to sergeant for one year followed by entitlement to enter the normal promotional process for staff sergeant.
This being concluded, Mr. Black also asserts that the penalty itself is both harsh and excessive. We do not agree. Leaving aside the fact that Staff Sergeant Kyle agreed to a twelve-month demotion, it is clear that he was responsible for conduct that involved several highly offensive elements – any one of which warranted discipline.
Staff Sergeant Kyle was found guilty of two serious criminal offences. He drove in a community in which he was responsible for providing policing having consumed more than twice the legal limit of alcohol. He verbally abused a citizen using highly offensive racial slurs. He then assaulted that citizen without provocation. He invoked his status as a police officer.
This conduct brought discredit to Staff Sergeant Kyle, the York Police Service and his fellow officers. It was particularly offensive given his senior rank and length of service.
To his credit, Sergeant Kyle pled guilty, acknowledged responsibility and apologized to his victim. He appears to have personal issues that he has recognized and sought treatment for. He had many letters of support. These mitigating factors were identified by the Hearing Officer and appear to have been taken into account.
Given the above, we do not feel that the addition of a requirement that Staff Sergeant Kyle compete for promotion following the agreed upon period of demotion rendered the penalty harsh or excessive. Certainly, it does not represent an error in principle of the nature that would warrant our interference.
Accordingly, we would dismiss the appeal against penalty.
DATED AT TORONTO THIS 11th DAY OF MARCH, 2003.
Murray Chitra E. E. Kelly Culin
Chair Member