ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Staff Sergeant James Daryl Monaghan
APPELLANT
-and-
Toronto Police Service
RESPONDENT
DECISION
Panel: Barbara Morland Wellard, Member Charles Rycroft, Member
Hearing Date: January 13, 2003 and April 7, 2003
Hearing Location:
Appearances:
Joanne E. Mulcahy, Counsel for the Appellant
Michael G. Martosh, Counsel for the Respondent
I. Introduction
This is an appeal from a conviction of one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at Ontario Regulation 123/98 as amended (the “Code”) made against the Appellant by Superintendent Margo Boyd (the “Hearing Officer”) on November 2nd, 2001.
In addition Staff Sergeant Monaghan appeals the sentence imposed by the Hearing Officer on December 21st, 2001 of a gradation to the rank of sergeant for a period of three months.
II. Background
The essential facts are not in dispute. The charges themselves arose from a conversation between the Appellant and Constable Harbinder Gill which occurred on the 17th day of February 2000. There had been some history between the Appellant and the Constable.
On December 17, 1998, Constable Gill filed an internal police human rights complaint alleging that his platoon commander, the Appellant, had made an offensive racial remark about him during a parade (hereinafter referred to as the “first complaint”). It was alleged that the Appellant stated to Constable Gill, an officer of Sikh heritage: “You people can grow a beard in three days”.
This first complaint was investigated and resolved at the unit level on the basis that the Appellant was assessed a 16 hour loss of pay, he was to provide Constable Gill with a personal apology which he did by expressing to Constable Gill his regret that any comment given had caused unintended offence.
In early February of 2000, Staff Inspector Corrie advised the Appellant that Constable Gill would be returning to the Appellant’s platoon after Constable Gill had been away on an extended assignment with the Community Response Unit. The Appellant expressed his concerns about Constable Gill’s return to his platoon including his belief that Constable Gill was a “disruptive influence”. The position of the Appellant was that he was a manager that came in and “cleaned up” the platoon and that Constable Gill would have harboured bad feelings about his managerial style. The main issue appeared to revolve around lunch breaks taken by Constable Gill and other members of the platoon.
The evidence of Staff Sergeant Monaghan as well as Sergeant Sean Brosnan confirmed that both the Appellant and the sergeants working for him were upset and angered by management’s decision to return Constable Gill to the platoon.
Staff Sergeant Monaghan testified that while Constable Gill was away from the platoon, that moral had improved and the operation of the platoon was much more positive. In his own testimony, he indicated that he really could not understand why Constable Gill would want to return to the platoon knowing the Appellant’s managerial style. However, despite these concerns, Staff Inspector Corrie indicated that the matter had been fully investigated and that he considered the matter to be closed and Constable Gill had chosen to return to the unit and his choice was going to be respected.
Staff Sergeant Monaghan testified that he was “shocked”, “crushed” and “angered” by senior management’s decision to return Constable Gill to his platoon, given that there were other options available. He testified that he felt that he was left standing alone and that he did not get much support from senior management about Constable Gill’s return.
Staff Sergeant Monaghan did not let the matter rest. He spoke with Detective Browne and advised him of his intention to “sit Constable Gill down” prior to the latter’s return to the platoon to discuss management’s decision whether “Constable Gill’s coming on to the platoon was the right thing to do.” Detective Browne testified that he advised the Appellant that as the Appellant had a stake in Constable Gill’s return, that he foresaw no difficulty with the conversation taking place.
The Appellant made the decision to speak with Constable Gill in the presence of Sergeant Sean Brosnan. That conversation took place on the 17th day of February 2000. Staff Sergeant Monaghan telephoned Constable Gill on that date and advised him that he wanted to meet with him. A meeting was conducted that day in the Appellant’s office and, as stated, in the presence of Sergeant Brosnan.
The salient aspects of the conversation are not in dispute. Staff Sergeant Monaghan indicated to Constable Gill that he could not understand why he wanted to return to the platoon especially after all the two of them had been through. In response to this comment, Constable Gill indicated that he accepted the Staff Sergeant’s apology (relating to the first complaint) and considered the matter to be behind them. Staff Sergeant Monaghan said that he still harboured bad feelings about what had happened between them (referring to the first complaint). He said that he had been hurt by the allegations (again referring to the first complaint). He advised Constable Gill that he had spoken with the sergeants under his command and they too could not understand why Constable Gill wished to return to the platoon.
Staff Sergeant Monaghan further advised Constable Gill that the situation in the platoon had not changed much since he had left. He stated that his management style was still the same and that he was still enforcing the lunch hours and overtime rules and running the platoon as he saw fit. He stated that he did not want the good functioning of the platoon to suffer as a result of the history between the two of them. Constable Gill asked the Staff Sergeant if he would prefer that he did not return to the platoon. Staff Sergeant Monaghan said: “I am paid to be objective and honest about this but I don’t want the good functioning of the platoon to suffer as a result of our history.”
Staff Sergeant Monaghan advised Constable Gill that the first incident was over and he stated: “the allegations hurt me. I paid for my lawyer. I didn’t want younger officers to be hurt going through the grief of a trial.” In response, Constable Gill advised Staff Sergeant Monaghan that he would think about it. Staff Sergeant Monaghan testified that when he asked Constable Gill about why he wanted to return to the platoon he replied that he wanted to be with his friends and hoped to get into CIB (Criminal Investigation Bureau). Staff Sergeant Monaghan was aware that if Constable Gill was to have been transferred to another platoon that he might have moved to the “bottom of the list” and that could have impacted negatively on his ability to get into CIB.
Although there was some divergence in the evidence, it is apparent that during the conversation Staff Sergeant Monaghan was “emotional”. Sergeant Brosnan commented that Staff Sergeant Monaghan appeared “very upset about what had happened”. The evidence of Constable Gill was that Staff Sergeant Monaghan repeatedly stated, “I don’t understand why you want to come back given the history we have.” In his evidence, Staff Sergeant Monaghan denied that he made any comment to Constable Gill about “harbouring bad feelings about him”. Further, he testified that he made no reference whatsoever to the unsubstantiated or unfounded allegations (in referring to the first compliant).
As a result of this conversation and the alleged behaviour of Staff Sergeant Monaghan during the meeting on February 17th, 2000, Constable Gill submitted a second complaint against Staff Sergeant Monaghan. This resulted in disciplinary charges.
The specific disciplinary allegation against Staff Sergeant Monaghan was as follows:
You are alleged to have committed misconduct in that you did act in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Police Force, contrary to Section 2(1)(a)(xi) to the Schedule Code of Conduct of Ontario Regulation 123/98 and therefore, contrary to Section 74(1)(a) of the Police Services Act, R.S.O. 1990, as amended.
- The Statement of Particulars read:
Being a member of the Toronto Police Service, attached to Number 55 Division, you, while on duty, on Thursday, February 17th, 2000, were assigned as the uniform Staff Sergeant of “E” platoon.
Investigation has revealed that at approximately 11:20 a.m., you placed a telephone call to Police Constable Harbinder Gill, #5006, Number 55 Division. You asked Police Constable Gill to meet yourself and Sergeant Sean Brosnan, #2475 in the sergeant’s office. When Police Constable Gill arrived in the office you began to speak to him.
An investigation has revealed that you told Police Constable Gill that you could not understand why he wanted to return to “E” platoon stating, “especially after all we have been through and I still harbour bad feelings about what happened.”
Police Constable Gill asked you if your statement indicated that you preferred that he not return to the “E” Platoon. You stated, “well given the history we have, I’ve gotta be honest and objective. I also don’t want my platoon to suffer and you know I took a hit and paid for the lawyer with my own money.”
You further commented about the nature of the allegations contained in the initial Racial Harassment Complaint made by Police Constable Gill. This caused Police Constable Gill to believe that an apology that had been given by you to him was now retracted and that your actions constituted a reprisal to the original complaint.
In so doing, your actions were such that they were likely to bring discredit upon the reputation of the Service.
The Hearing
Staff Sergeant Monaghan appeared before the Hearing Officer on August 2, 2001, August 20, 2001, October 12, 2001, October 18, 2001 and October 29, 2001. On November 2nd, 2001, the Hearing Officer convicted the Appellant and a sentencing hearing took place December 6, 2001. The Hearing Officer rendered her decision with respect to penalty on December 21, 2001.
At the disciplinary hearing, the main witnesses were Constable Gill and Staff Sergeant Monaghan. As well, Staff Inspector Corrie and Sergeant Sean Brosnan testified for the Toronto Police Service. Detective Browne testified for the Appellant. At the sentencing hearing, Superintendent W. Holdridge as well as Deputy Chief S. Reesor testified with respect to the Appellant’s usefulness as a police officer and they commended him for the work that he had done under their respective commands.
Reasonable Apprehension of Bias
The first issue argued before us was whether or not there was a reasonable apprehension of bias on the part of the Hearing Officer, due to the fact that during the course of the disciplinary proceedings she was offered and accepted a position with the Ontario Civilian Commission on Police Services (the “Commission”). The Appellant further argued that if we did not find that Superintendent Boyd should have recused herself, that we as Commission panel members and “employers” of Superintendent Boyd are not impartial, there is a reasonable apprehension of bias and we cannot hear this appeal.
We have had the benefit of reading the decision of our fellow members of this Commission in the decision relating to Constable Juan Blowes-Aybar dated the 24th day of February 2003. We adopt the legal analysis in that decision, however we would like to make a few additional comments.
We must first stress that since commencing her work with the Commission, Margo Boyd has had no decision-making powers on disciplinary appeals. She is an employee of the Commission and not an appointed member. Further, prior to this appeal being filed, the Commission has had no previous involvement in this case, given that it arose from an internal police matter and not a public complaint made under Part V of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”).
The test for bias in relation to adjudicative tribunals is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. See Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 (S.C.C.).
With respect to whether or not Superintendent Margo Boyd was biased, we find that there is little basis to the Appellant’s argument that she could not act as an impartial decision-maker after having secured employment with the Commission. In our view, the cases relied upon by the Appellant in support of her argument either simply outline broad principles, or if they are factually more applicable to the case at hand, are nonetheless distinguishable.
The Appellant relied upon Maple Leaf Meats Inc. and U.F.C.W. Locs 175 & 633 (2000), 2000 CanLII 50152 (ON LA), 89 L.A.C. (4th) 439 (P. Gordon). In that case an arbitrator withdrew from hearing a grievance due to the fact that the arbitrator had accepted an appointment with ARCH, a legal resource centre for persons with disabilities. The employer argued that the arbitrator’s new employer had the stated objective of advocating for the rights of disabled people. Given that the grievance dealt with disability benefits and illness, the employer submitted that union success was consistent with the arbitrator’s future employment and employer’s success would be inconsistent, raising a reasonable apprehension of bias. The arbitrator agreed.
In our opinion the case is distinguishable. A reasonable person would not conclude that Margo Boyd’s decision as a Hearing Officer would be of interest to the Commission as the Commission does not act as an advocate for either police officers subject to disciplinary hearings or for police management. The Commission has no interest in management securing a conviction in an internal disciplinary hearing. There is no argument that Superintendent Margo Boyd, upon being hired as a staff member with this Commission, would be seen to be motivated to reach a decision favourable to police management.
The Appellant also relied on Golden Valley Golf Course Ltd. v. The Queen in Right of British Columbia; Expropriation Compensation Board, Intervener (2001), 2001 BCCA 392, 200 D.L.R. (4th) 248 (B.C.C.A.). In that case, a panel member of B.C.’s expropriation compensation board accepted a position with a government ministry. The Court found that there was a reasonable apprehension of bias. However, in the case at hand, Margo Boyd was hired by the Commission and not by one of the parties in the original proceedings. The Commission, as Boyd’s new employer, has no connection to either party in the original disciplinary proceeding.
The Appellant’s second argument in relation to this panel is somewhat more compelling. The applicable legal test for reasonable apprehension of bias is what the informed person, viewing the matter realistically and practically and having thought the matter through, would conclude.
In those cases submitted to us by the Appellant, in almost all of the situations in which reasonable apprehension of bias was found, involved matters where the decision-makers had a clear interest in the issue before them. In the Appellant’s case, there is no interest on the part of the Commission’s panel members in the appeal before the Commission nor have there been meetings between the panel members and Margo Boyd relating to this specific case. As such, the only basis for an assertion of reasonable apprehension of bias is the possibility the panel members may like Margo Boyd as an individual or generally may respect her work for the Commission and thus be less inclined to reverse her decision.
We believe that Starzynski v. Canada Safeway Ltd. 2000 ABQB 897, [2001] 3 W.W.R. 651 (Alta. Ct. of Queen’s Bench) is helpful in this situation. In that case, Alberta’s Human Rights, Citizenship and Multiculturalism Act provided that the Director of the Human Rights and Citizenship Commission could dismiss a human rights complaint as being without merit or could discontinue the complaint in certain circumstances. A complainant could appeal the Director’s decision to the Chief Commissioner.
When a complainant appeals, the Chief Commissioner is required to review the Director’s decision. If the Chief Commissioner overrides the Director’s decision following the appeal, then the Chief Commissioner must appoint a new panel of the Commission to hear the complaint. In such circumstances, the panel cannot include the Chief Commissioner. This process occurred in the case in question.
One of the respondent parties argued that the panel, knowing that Chief Commissioner granted the complainant’s appeal of the Director’s decision, “might be influenced by the appearance that the Chief Commissioner believed there was merit to the complaint”. The Court, in dismissing this argument, noted that the applicable legislation set out that the Chief Commissioner was not permitted to sit on the hearing panel if he or she had granted the appeal of the Director’s decision. Obviously, in the case at hand, Margo Boyd will not, and cannot, sit on any disciplinary appeal panel.
The Court in the Starzynski case went on to note that even if there is some apprehension of bias in the overlap of the Chief Commissioner’s role, the statute authorized that overlap. However, the Court also made reference to the close relationship among the staff and stated the following at page 680:
The alleged close relationship among the staff is not sufficient to create an apprehension of bias. The same physical locations of the offices are merely functions of the fact that the Commission has an overlap between its administrative and adjudicative function . . .
The fact that the Director hires all staff, including staff who provide [sic] work with the Commissioners and the Chief Commissioner, has no bearing on the decision-makers’ states of mind. The Commissioners themselves are not hired by the Director but appointed by the Minister...
It should be noted that even in situations where a reasonable apprehension of bias might arise then the doctrine of necessity might also operate.
If reasonable apprehension of bias is applicable to the Commission’s entire panel because of personal contact with Margo Boyd and there are no other persons mandated by statute to hear the appeal, the statutory scheme would be defeated. In the case of Canadian Pacific Railway v. British Columbia (Information and Privacy Commissioner) [2002] B.C.S.C. 603 (B.C.S.C.), the court stated at page 14:
The doctrine of necessity operates to prevent a frustration of the statutory provisions in circumstances such as these where the only adjudicator is disqualified.
- We might note, however, that we do not believe that it is necessary to invoke the doctrine with respect to this matter. For the above reasons, we find that the Appellant’s arguments with respect to reasonable apprehension of bias fail.
Appellant’s Position
As stated by both the Appellant and the Respondent’s counsel (although in different ways), the question before the Hearing Officer was whether or not there was clear and convincing evidence that the conversation between Constable Gill and Staff Sergeant Monaghan was a retraction of the apology and a reprisal for the original complaint (the first incident). Further, if the Hearing Officer found that there was a retraction and a reprisal, were the actions of Staff Sergeant Monaghan with respect to the incident likely to bring discredit upon the reputation of Service?
The Appellant advanced numerous grounds of appeal, many of which are repetitive. In essence, she submitted on behalf of the Appellant that there was no clear and convincing evidence of reprisal. In particular, there was no clear and convincing evidence of the intent by Staff Sergeant Monaghan to perpetrate a reprisal. She submitted that we must only look to the contents of the conversation and there was no specific reprisal in that conversation. We cannot go beyond the conversation and look at the context.
In her submissions, she urged us to find that the Hearing Officer made findings beyond the scope of the Notice of Hearing. Specifically, she referred us to the portion of the Hearing Officer’s decision wherein she stated: “this case is not about his [Staff Sergeant Monaghan’s] success in implementing new processes, but about his ability to manage people”. She urged us to find that the Hearing Officer failed to consider relevant evidence including the motive of Staff Sergeant Monaghan in having his discussion with Constable Gill.
She stated that by accepting as an exhibit a written statement prepared by Constable Gill approximately 10 days after the date of the conversation, that the Hearing Officer erred in law by admitting inadmissible evidence. She argued that this was hearsay and violated the rule against the admission of prior consistent statements.
She stated that the Hearing Officer applied her own knowledge and experience with the Toronto Police Service and made findings of fact and speculation that were beyond the purview of the situation at hand. She refers to this as the “Hearing Officer’s opinion in hind sight”; “speculation”; and “ex-post facto approach”.
She stated that the Hearing Officer reversed the burden of proof. She stated that this conclusion can be made by reading the Hearing Officer’s decision as a whole.
She urged us to find that the Hearing Officer made inconsistent findings. Her basic argument with respect to this was that she accepted both Staff Sergeant Monaghan’s and Sergeant Brosnan’s evidence and therefore could not have found that there had been a reprisal and a retraction. If she accepted the Appellant’s version of the events, then she had to find him not guilty.
She further submitted that the Hearing Officer misapprehended the evidence and that in finding that there was professional misconduct she made a mistake in law as Staff Sergeant Monaghan had merely made an error in judgment which cannot be the basis of a finding of professional misconduct.
She referred us to numerous cases concerning both criminal and administrative proceedings in support of her arguments.
With respect to penalty, the Appellant submitted that the discipline imposed by the Hearing Officer was both harsh and excessive. She argued that it was inconsistent with other cases that she presented to us. She also stated that the Hearing Officer failed to take into account good character evidence, engaged in speculation and penalized Staff Sergeant Monaghan for matters beyond the Notice of Hearing. She argued that the Hearing Officer penalized Staff Sergeant Monaghan for his emotional reaction to her decision.
Counsel for the Appellant submitted that this is a situation where Staff Sergeant Monaghan had no record. Although there were two informal disciplines on his file, they should have been expunged, as they were more than two years old. In support of that argument she referred us to section 64(16) of the Act. That section provides that if there are “no other entries” two years subsequent to an informal discipline, it is to be removed from the officer’s record. She stated that there could be no entry until there is a finding of misconduct and that the finding of misconduct in this case was well beyond the two-year period of the previous informal disciplines.
She also referred us to numerous disciplinary cases wherein the penalties ranged from reprimands to a number of days off. None called for a reduction in rank. She did not provide us with any opinion as to what would be an appropriate sentence in this case.
Respondent’s Position
The Respondent takes the position that the decision of the Hearing Officer was based on clear and convincing evidence. He asserted that the reprisal and retraction could reasonably be inferred from the content and the context of the conversation.
It was Staff Sergeant Monaghan who requested Constable Gill to come to the meeting. It was Staff Sergeant Monaghan who questioned Constable Gill as to why he would want to return to the platoon, given the circumstances. The Hearing Officer found that the only conclusion that Constable Gill could come to was that he was not welcome. The Respondent argued that there was ample evidence to support this conclusion.
He stated that it was certainly open to the Hearing Officer to find that Sergeant Brosnan was credible and honest in his testimony. Sergeant Brosnan testified that he did not think there was anything wrong with the conversation. By accepting that Sergeant Brosnan was honest in his evidence does not mean that the Hearing Officer must accept his opinion as being correct. By stating that she is prepared to give Staff Sergeant Monaghan the benefit of the doubt and accept his evidence is not inconsistent with her finding that based on his evidence there was a reprisal.
He submitted that the charge itself stated that “your actions” would likely bring discredit to the Police Force. Accordingly, we can consider both the content and the context of the conversation. We can consider the fact that Staff Sergeant Monaghan arranged the meeting and was going to have a “sit down” with Constable Gill and he did so in the presence of Sergeant Brosnan. The Respondent argued that looking at the entire event as it unfolded, it was clear that the conversation was a retaliation in the sense that it was a subtle warning to Constable Gill that things were not going to be comfortable for him should he return to the platoon.
He advised us to find that the Hearing Officer did not engage in speculation or did not look at the matter in hindsight or “ex post facto”. She reviewed and analyzed the evidence and gave her opinion based on the evidence. She did exactly what she was delegated to do.
With respect to the issue of sentence, Mr. Martosh reminded us of our role as an appellate body and provided that we are satisfied that the Hearing Officer considered all of the relevant sentencing factors and principles, unless there is a manifest error in principle, we cannot overturn or vary the sentence. He submitted that the Hearing Officer did consider all of the appropriate factors and that the penalty was appropriate. He argued that the Hearing Officer did not look at the lack of remorse as an aggravating factor. But it certainly can be considered when looking at the possibility at rehabilitation.
He urged us to find that section 64(16) of the Act would not result in the two previous informal disciplines of 16 days each being expunged from the record. He therefore stated that Staff Sergeant Monaghan came before the Hearing Officer and this Commission with a prior record (although informal) and one must look at progressive discipline. One must consider that as Staff Sergeant Monaghan was in a position of authority that the matter is more serious. The Respondent argued that weighing all of the factors and applying them appropriately, as the Hearing Officer did, the penalty of a three-month gradation in rank was within the acceptable range and therefore should not be disturbed.
Mr. Martosh referred us to numerous cases in support of his various arguments.
III. Decision
The issue before this tribunal is not perhaps as straightforward as the Appellant submits. We do not believe that we must look only to the content of the conversation of February 17th in determining whether or not the actions of Staff Sergeant Monaghan would have brought discredit to the Toronto Police Service.
The facts as we stated at the outset, are substantially not in dispute. Staff Sergeant Monaghan summoned Constable Gill for a “sit down”. There was reference to the previous complaint and the resolution of the first incident. There were questions of Constable Gill as to why he would want to return to the platoon. The conversation was in the presence of two of Constable Gill’s superiors namely Staff Sergeant Monaghan and Sergeant Brosnan.
Given the undisputed context of the conversation (and adopting the version of Staff Sergeant Monaghan over that of Constable Gill), we accept the conclusion of the Hearing Officer that Constable Gill could reasonably believe that he was being subjected to a reprisal for his first complaint and an implied retraction of the apology he had received. In the circumstances the Hearing Officer found that apology to be “hollow” and we agree with this characterization.
Could such conduct bring discredit to the Toronto Police Service? In other words, would a reasonable person knowing the circumstances find that this was disreputable? We accept the position of the Respondent in this regard. This was totally inappropriate behaviour on behalf of Staff Sergeant Monaghan. He was a superior officer who implicitly told a subordinate that he did not want him working for him. This was despite expressing his concerns to Staff Inspector Corrie, being advised that the matter was closed and told that Constable Gill’s choice would be respected.
Staff Sergeant Monaghan did not appear to be willing to let the matter rest. Constable Gill had every right to choose to return to the platoon to pursue his goal of advancing to the CIB. Constable Gill did nothing improper in this regard. He was offended by Staff Sergeant Monaghan’s comments in the first incident and understandably further offended by Staff Sergeant Monaghan’s remarks on February 17th.
Staff Sergeant Monaghan, in his own opinion, was placed in a very difficult position. However, police managers are often placed in awkward situations. They must deal with these properly and in a mature manner. We do not believe that Staff Sergeant Monaghan did that in this case. We believe that there was ample evidence to support the finding of the Hearing Officer that Staff Sergeant Monaghan was guilty of discreditable conduct. We do not believe that she substituted her own opinion, ex post facto or in hindsight.
She reviewed the evidence, and she made finding of fact. Some of these were adverse to Staff Sergeant Monaghan but she had every right to do so. Her experience with the Toronto Police Service is recognized as being important and an attribute to the police disciplinary hearings. We do not find her decision to be void of evidentiary value. We do believe that there was ample evidence to support a finding that on a clear and convincing basis Staff Sergeant Monaghan was guilty as charged.
With respect to the issue of penalty, we agree with the recent case of this Commission that we can only interfere if there has been an error in principle or if we find that the Hearing Officer failed to adequately consider all of the factors before her.
Section 64(16) of the Act provides that a record of informal discipline shall be expunged from an officer’s record “two years after it is made if during that time no other entries concerning misconduct or unsatisfactory work performance have been made in the record under this Part.” The two entries in the Appellant’s records were dated in August of 1997 and October of 1998. The Appellant was sentenced by the Hearing Officer in December of 2001. She clearly took the two previous matters into account in the imposition of penalty.
We accept the submission of the Appellant that the two previous informal disciplines should have been removed from Staff Sergeant Monaghan’s file. We find that there was an error in principle in determining that Staff Sergeant Monaghan had a prior record.
He therefore appears before this Commission with no record. Further, there was character evidence given at the hearing to confirm that Staff Sergeant Monaghan had performed excellent work for the Toronto Police Service. There are a number of commendations on his file. These are two important mitigating factors.
The other factor that we must consider is Staff Sergeant Monaghan’s unwillingness to accept that the conversation that he had with Constable Gill was inappropriate. We do not see remorse and while that is not an aggravating factor it certainly does not warrant any mitigation.
However, we do accept that the process of this hearing in itself has been very difficult for Staff Sergeant Monaghan and that he now realizes the error of his ways. Given this, we believe that the sentence of a three-month gradation in rank was, in fact, harsh and excessive. Particularly, given that we believe that the Hearing Officer considered Staff Sergeant Monaghan to have a record and that this resulted in an increased penalty.
We do not want Staff Sergeant Monaghan to believe that we feel that this was not a serious offence. However, considering all of the mitigating factors, we would reduce the penalty to loss of 6 days or 48 hours time.
DATED AT TORONTO THIS 1st DAY OF MAY 2003.
Barbara Morland Wellard Charles B. Rycroft
Member, OCCPS Member, OCCPS