Constable Mark Valois v. Toronto Police Service, 2003 CanLII 85805

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

Constable Mark Valois APPELLANT

-and-

Toronto Police Service RESPONDENT

DECISION

Panel: Peter J. Doucet, Member Joe Mavrinac, Member

Hearing Date: November 7, 2003

Hearing Location:

Appearances: Joanne E. Mulcahy, Counsel for the Appellant Darragh Meagher, Counsel for the Respondent

I. Introduction

1P.C. Mark Valois of the Toronto Police Service appeals to this tribunal from the penalty imposed upon him by acting Superintendent A. Warr on April 24, 2003.

Facts

2The facts of this matter are not in dispute. On two separate occasions, the first on November 26, 1997 and the second on March 9, 1999, Cst. Valois forged the signature of his wife on a loan document that was ultimately presented to the Toronto Police Credit Union in order to secure credit. He pled guilty to two offences before the Honourable Mr. Justice C. Vaillancourt of the Ontario Court of Justice and was found guilty of two offences of knowingly causing an individual to act upon a forged document contrary to Section 368 (1) (b) of the Criminal Code of Canada.

3In a joint submission before Justice Vaillancourt, Cst. Valois received an absolute discharge and as a result no conviction was registered for these offences.

4Cst. Valois then pled guilty to two counts of misconduct before acting Superintendent A. Warr. A hearing was held and evidence tendered with respect to an appropriate disposition.

5Acting Superintendent A. Warr imposed a penalty of reduction in rank from first class constable to second class constable for a period of six months concurrent on each charge of misconduct on both counts 1 and 2. It is from this disposition that Cst. Valois appeals to this tribunal.

Appellant’s Position

6Ms. Mulcahy on behalf of the Appellant argues that acting Superintendent A. Warr committed a number of errors, which she submits constitute manifest errors in principle, and which she submits can be directly linked to a disposition by way of penalty which is excessive, harsh and outside the range of penalties available to acting Superintendent A. Warr in these circumstances.

7Ms. Mulcahy submits that a more appropriate disposition would be within the range of a reprimand on the low end to ten (10) days loss of pay on the high end.

8Ms. Mulcahy reminds us that the penalty imposed by Superintendent A. Warr was on the very high end of the range suggested to him by the Prosecutor.

9She refers us to a number of cases, most of which were also placed before acting Superintendent A. Warr, wherein registered convictions for similar criminal code offences resulted in equal or lesser penalties. She reminds us of the very clear distinction between a conviction and an absolute discharge. She argues that acting Superintendent A. Warr failed to consider the possibility of rehabilitation of this officer and the fact that the discharge makes this officer much more useful to the Toronto Police Service then he would be were he to have a registered conviction upon which he could be cross-examined, thereby reducing his effectiveness as a front line police officer.

10She further draws to our attention what appears to be confusion on the part of acting Superintendent A. Warr by making use of the word “conviction” in his decision while at times interchanging it with the words “found guilty”.

11She further argues that acting Superintendent A. Warr’s comments about the delay in the entering of a plea of guilt on behalf of the officer before the Ontario Court of Justice were again an error in principle going to the correctness of the disposition.

Respondent’s Position

12Mr. Meagher on behalf of the Respondent, argues that acting Superintendent A. Warr did not commit the errors as outlined by the Appellant, but that even if he did commit errors they were not manifest errors in principle and that he arrived at a proper disposition within the range of dispositions available to him and that even if errors were committed, we should not interfere with the disposition imposed as it is a proper and correct one.

13Mr. Meagher draws to our attention the fact that in the proceedings before Justice Vaillancourt, Mr. Black, in making the submissions prior to sentencing, drew to the Court’s attention, that the Prosecutor would be seeking a reduction in rank in the Police Services Act proceedings. He goes on to quote Justice Vaillancourt’s reference to this “significant repercussion” that Cst. Valois would face at his misconduct hearing pursuant to the Police Services Act, and argues that this was clearly within the contemplation of Justice Vaillancourt when he acceded to the joint submission for an absolute discharge before him.

14He reminds us that Cst. Valois forged his wife’s signature on not one, but two occasions over a span of 2 years. He distinguishes this from cases where there was a one time departure from an expected code of conduct by an officer with an otherwise unblemished record and argues forcefully that the fact that Cst. Valois chose to do this on 2 separate occasions make the circumstances of this case somewhat different from those situations where only 1 incident of misconduct has taken place.

15Mr. Meagher argues that the penalty is not clearly manifestly excessive and that in order for our discretion to be exercised to interfere with the penalty imposed by the Hearing Officer we must be convinced that the penalty is clearly or manifestly excessive and a manifest error principle has been committed.

II. Decision

16When one reads the decision of acting Superintendent A. Warr, it is clear that the Superintendent had a good overall understanding of the facts that brought the matter before him. He outlines this clearly on page 45 of the transcript starting at line 5 to and including line 24. He reviews in detail the fact that this officer had an unblemished record, that he forged his wife’s name on two separate occasions, that there was no scheme or apparent intent to defraud the Credit Union of any money, that all monies were repaid voluntarily, that the officer pled guilty before Justice Vaillancourt, and that an absolute discharge was entered by Justice Vaillancourt after Justice Vaillancourt considered, among other things, the fact that the officer would face significant repercussions when dealt with under the Police Services Act.

17Acting Superintendent A. Warr goes on to comment, quite appropriately in our view, that the practices of the police Credit Union are not in issue. Like acting Superintendent A. Warr, we did not understand the suggestion on behalf of the Appellant, that the police Credit Union somehow shares culpability because they allowed the constable to take the applications home to sign. Surely, they should be able to trust in his integrity and the mere fact that their lax procedures allowed him to forge his wife’s signature should in no way reduce the consequences of his actions in doing this on not one but two occasions. There is no doubt that on more than one occasion acting Superintendent A. Warr makes reference to Cst. Valois being “convicted”. When his entire decision is read however, it is clear that this is more of a misunderstanding of the term of art in criminal law, than it is a manifest error in principle. Acting Superintendent A. Warr goes on to clarify his understanding on pages 45 and 46 of the transcript and it is clear that the appropriate principles were in his mind. He then goes on to analyse the sentencing considerations and we feel that he makes an appropriate analysis of the principle to be applied. While it is true that he does not specifically use the word “rehabilitation” he clearly contemplates this on page 46 of the transcript when he talks about handicap and remorse.

18There is no doubt when one considers all of the cases placed before Superintendent A. Warr as well as this tribunal, that there is a wide range of dispositions available to a hearing officer when dealing with the unique circumstances of this case. It is not for us to substitute the decision that we would have made had we decided the matter. We should only interfere if there has been a manifest error in principle resulting in a penalty which is clearly or manifestly excessive.

19We do not find that the penalty imposed is clearly or manifestly excessive. In fact, we find that it is well within the range of dispositions available to the Hearing Officer and that it appropriately suits the circumstances of this case and the principle to be applied in arriving at an appropriate penalty. The reality is that Cst. Valois forged his wife’s signature on not one, but two occasions. When he received his absolute discharge it was within the consideration of the trial judge that he would face significant repercussions in the Police Services Act hearing.

20We do not accept the argument of Ms. Mulcahy that a reprimand has significant repercussions in the circumstances, even when taking into consideration the loss of designation as a teaching constable and the reduction in salary that accompanies that loss of rank. A clear message must go out to all police officers that forgery of this nature is a matter of honour and integrity that will be looked upon seriously, not only by the police service, but also by society as a whole.

21Had Cst. Valois not pled guilty, received an absolute discharge, repaid the loan and acted as he did, we would have expected a much more severe penalty given two deliberate acts of forgery on two separate occasions over two years.

22For the reasons given, the appeal is dismissed.