Galassi v. Hamilton Police Service, 2003 CanLII 87655

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Galassi v. Hamilton Police Service, 2003 ONCPC 20

REASONS FOR DECISION

POLICE CONSTABLE CRAIG GALASSI

Appellant

HAMILTON POLICE SERVICE

Respondent

Presiding Members:

Peter J. Doucet, Member Frederic G. Farrell, Member Michele J. Shephard, Member

Appearances:

Irwin Koziebrocki, Counsel for the Appellant

Steven M. Boorne, Counsel for the Respondent

Hearing Date: August 19, 2003

Background:

Constable Craig Galassi, aged 39 years at the time of his PSA hearing, was a 20 year veteran of the Hamilton Wentworth Police Service (HWPS).

He was charged with three counts of misconduct dealing with: 1. Showing a scrotum piercing ring and part of his scrotum to a fellow police officer, 2. Placing a dead cat on the hood of the vehicle of a fellow police officer, and 3. being found guilty of an indictable criminal offence of careless handling of a firearm, contrary to the Criminal Code of Canada. The full particulars of these charges are set forth in the Notice of Appeal and need not be repeated here.

Constable Galassi appeals to this Commission against the conviction on counts one and two, as well as the penalty on count three. As he pled guilty to count number 3, there is no appeal on conviction on count three.

Facts:

The hearing was held before Inspector Chuck Anderson over successive days. The evidence was transcribed into 12 separate volumes of evidence, and was extensive.

With respect to count 1, the evidence essentially is that it became known throughout the squad that Constable Galassi had his scrotum pierced with a ring of sorts. It became the subject of joking and banter amongst his colleagues.

One colleague, Constable Jaimi Bannon challenged Constable Galassi from time to time to either show her the piercing or stop talking about it. One day he decided to show her and did so while on duty. He covered most of his genitals with his hand, but opened his trousers enough to reveal approximately one inch of his scrotum and the piercing. Constable Bannon was neither shocked nor offended. She simply commented that it must have hurt and the matter was treated as a joke. She made no complaint.

The HWPS felt that this conduct was likely to bring the reputation of the HWPS into disrepute and charged Constable Galassi accordingly. The hearings officer agreed and convicted Constable Galassi and imposed a penalty of 16 hours forfeiture of pay.

With respect to count 2, the evidence essentially is that Constable Galassi played a joke upon a fellow officer by placing a dead cat upon the hood of his personal vehicle. This cat had “made the rounds” prior to this, and had been placed on various vehicles and in various places. Constable Galassi continued the joke. The officer upon whose vehicle the cat was placed was concerned simply that

the ammonia from the animal could damage his paint, and approached the acting

Sergeant, Bargeman, to determine who had done this so he could be asked not to repeat the joke. At parade the question was asked and Galassi freely admitted it was he. Bargeman suggested he approach the officer to informally resolve the matter and Galassi readily did so. The matter was resolved. This resolution was confirmed by Staff Sergeant Jack Watts who was satisfied that the matter was informally resolved. HWPS superiors, however, later disagreed and pressed this charge. The Hearing Officer convicted Galassi of this charge.

Again, he was assessed a penalty of 16 hours forfeiture of pay, but concurrent to the earlier forfeiture.

The facts surrounding the third count are more detailed and span a larger period of time. Fortunately, there was an agreed upon statement of fact, which we produce below as follows:

In February, 2000 in the parade room at Station 20 of the Hamilton-Wentworth Regional Police Station, the Appellant while on duty was observed sitting at a table loading bullets into the magazine of his pistol. As he was loading the magazine, he was looking at individual officers and was heard to be uttering their names with each bullet. One officer in particular, Officer Larkin, heard his name being referred to. And, although he took the matter as a joke at the time, later expressed concern about that matter.

In November, 1997 a Constable Lloyd and the Appellant were sitting in the report room outside of the custody area of Station 20. Lloyd made a comment to the Appellant and immediately felt a sharp pressure in his back causing him to go forward. And as he turned back he saw the Appellant putting his pistol back in his holster.

Between 1997 and 1998 Jason Lloyd was sitting in the report room at Station 20, the Appellant walked up to Lloyd pointed his pistol at Lloyd’s groin and made a joking remark.

In 1998 Constable Kazprzyk was in the change room at Station 20 changing for his shift. The appellant pushed the barrel of his pistol into the back of Kazprzyk’s neck. Kazprzyk expressed displeasure about that because of a safety issue and mentioned to him a fatal incident where there was an accidental discharge of a service weapon in Niagara region a few months before.

In respect of that matter, the Appellant takes the position it was a clip from his

gun, and not the barrel of his gun that was placed at the officer’s back.

The following day Constable Kazprzyk was again in the change room. He was again changing for his shift, and the Appellant again put a pistol in his back. Kazprzyk again expressed his displeasure. Again the Appellant states that it was a clip, and the prosecution takes the same position.

In 1998 Constable Larkin was in the report writing room at the station where the Appellant unholstered his pistol and pointed it at Larkin. The Appellant looked around before doing this.

Again in 1998 within two months of the previous incident while in the station

report writing room, Constable Larkin was with the Appellant who commented

that people will flinch if a person was to shoot an elastic band at them but won’t if you point a gun at them. With that, he took his gun out and pointed it at Larkin. Larkin took it as a joke. And, there is no suggestion that his finger was on the trigger when he pointed it.

In 1998 Constable Charlene Moses was in the custody area at Station 20 with

the Appellant. She and the Appellant were talking about the value of Kevlar body armour vests. After the conversation, Constable Moses felt something pushing against the back of her body armour. She turned and saw the Appellant with his gun in her back. He commented to Moses if she wondered whether the vest would work and then holstered his pistol.

In November of 1998 Constable Joanne Serkeyn was seated in the report writing room at the station. The Appellant was observed standing in the entrance to the room. He was joking in relation to his pistol. He took his pistol out of his holster, threw it on the floor, it slid ten or twelve feet. She was afraid it might go off. She hid behind a desk and then left the room.

Clearly this was the most serious charge, as it was the subject of a plea of guilty by Constable Galassi and resulted in an extensive sentencing hearing resulting in the Hearing Officer imposing a penalty of Constable Galassi being required to resign and, in default of resigning from HWPS within seven days, to be dismissed in accordance with s. 68(1)(b) of the PSA.

Appeal:

Constable Galassi appeals his conviction on counts 1 and 2. He cites various grounds, which are set forth in his Notice of Appeal as well as supplemented by his factum, and which need not be repeated here.

Our role on an appeal from a conviction is well stated in the oft quoted passage from Williams and Ontario Provincial Police (1999) 2 OPR 1047 and 1058:

“Our role or function in such matters is not to second guess the decision of the adjudicator. In certain limited cases, it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the Adjudicator, as to the credibility of witnesses, cannot be reasonably accepted.

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

We must be satisfied that the Hearing Officer has made a manifest error in principle.

The decision of the Hearing Officer, particularly as to the credibility of witnesses and findings of fact, is entitled to great deference and ought not to be lightly interfered with.

This is our role on appeal. It is not for us to substitute our decision, nor to postulate upon what we might have done had we sat in the first instance. To do so is to rehear the matter, and that clearly is not our role.

With respect to counts one and two, the issue really turns upon the test of what might reasonably be expected to bring discredit upon the reputation of the HWPS. The test is well enunciated in the decision of Girard v Delaney (1995) 2

PLR 337 (Board of Inquiry), and page 349 as follows:

1. The test is primarily an objective one.

2. The Board must measure the conduct of the officer by the reasonable expectations of the community.

3. In determining the reasonable expectations of the community, the Board may use its own judgment, in the absence of evidence as to what the reasonable expectations are. The Board must place itself in the position of the

reasonable person in the community, dispassionate and fully apprised of the circumstances of the case.

4. In applying this standard the Board should consider not only the immediate facts surrounding the case but also any appropriate rules and regulations in force at that time.

5. Because of the objective nature of the test, the subjective element of good faith (referred to in the Shockness case) is an appropriate consideration where the officer is required by the circumstances to exercise his discretion.

We must therefore consider, in relation to counts 1 and 2, if the hearings officer seriously misapprehended or misapplied the evidence, if his conclusions were void of evidentiary foundation, or if he committed a manifest error in principle.

We have read his well written and well reasoned decision thoroughly. We find that the Hearing Officer thoroughly considered the evidence, properly exercised his discretion, and carried out his duties as one would expect. He clearly expressed his decision on conviction on counts 1 and 2, and the process by which he arrived at that conclusion. We find, therefore, that his conclusions were not void of evidentiary foundation, and in fact were well based upon the evidence before him.

With respect to count 1, we find that it was within his discretion to find that the community would consider showing a portion of a police officer’s scrotum to another police officer, while on duty, while in uniform, and while in a police station to bring discredit upon the reputation of the HWPS and as a result he committed no manifest error in principle. We would accordingly uphold his decision.

The issue of the dead cat in count 2, however, is somewhat different. This matter was dealt with by way of informal resolution. Both the acting sergeant and the staff sergeant not only encouraged this, but endorsed it. We find that the informal resolution process as contemplated by the internal policies of the HWPS, which were before the Hearings Officer as exhibits 15 and 16 were complied with and that the Hearing Officer made manifest error when he found that the matters were not informally resolved. We would accordingly allow the appeal, therefore, on conviction with respect to count 2.

Appeal as to Penalty:

Our role in an appeal as to penalty is also limited. We must find a manifest error in principle or that relevant factors in assessing penalty were ignored. We must consider if the penalty is within the acceptable range for the offence in question.

If there is no manifest error in principle, if the relevant factors were considered in assessing penalty, and if the penalty is within the acceptable range, then we must defer to the hearings officer and our duty is not to interfere. Our

interference must be restricted to those limited cases where these criteria are not followed.

In his decision on penalty, the Hearing Officer gave a detailed analysis of the evidence before him. On page 34 of his decision he reviewed the factors which he must consider. These are clearly set out, not only in his reasons, but in the decision of Krug and Ottawa Police Service (OCCPS January 21, 2003).

• Public interest;
• Seriousness of the misconduct;
• Recognition of the seriousness of the misconduct;
• Employment history;
• Need for deterrence;
• Ability to reform or rehabilitate the police officer;
• Damage to the reputation of the police force;
• Handicap and other relevant personal circumstances;
• Effect on police officer and police officer’s family;
• Management approach to misconduct in questions;
• Consistency of disposition;
• Financial loss resulting from unpaid interim administrative suspension;
• Effect of publicity.

Again, as with his decision on penalty, it was clear from reading his decision how it was that he arrived at his conclusions, how he exercised his discretion, and the law which he applied.

There is no dispute that the 9 separate incidents involving the firearm or parts thereof were serious, recurring, unprovoked, and willful. Counsel for the appellant properly acknowledges that these are serious matters indeed.

The real question is whether or not Constable Galassi can be rehabilitated as a police officer and avoid the ultimate penalty of dismissal. Can he still be a useful member of HWPS given what has transpired.

Counsel have properly referred us to the decisions in Harwood, Nothing, and Favretto, made by this Commission and its predecessor. While each case must turn on its own facts, particularly when the allegations are as serious as these, these cases do assist us because they speak of a range of penalty which is available to a hearings officer, as well as when the application of the hearing officer’s discretion on penalty ought to be interfered with (Favretto).

Again, our role is not to substitute our decision for that of the Hearing Officer. He had the benefit of seeing and hearing each witness, of observing their demeanour, and of being in the best position to assess the evidence on penalty. As we find that he properly exercised his function in that regard, our role really is to determine if he made a manifest error in the penalty which he imposed, or if he imposed a penalty outside of the range of penalties available to him.

The gun is the ultimate symbol of the authority of a police officer. It is the ultimate symbol of deadly force as well. It is the police officer who bears the burden of the privilege and the onerous responsibility of carrying this instrument which can so easily take a life. Particularly in Canadian society, we are most concerned about firearms and the harm that can result from the barrel of a gun. We often watch our neighbours to the south and the gun related problems which plague their society, while attempting to avoid such problems in our own land.

We must look to police officers to set the standard. If they are cavalier with guns, what can we expect of citizens? Constable Galassi received extensive firearms training, all of which clearly made him aware that these 9 separate incidents with his firearm were not only wrong, but potentially deadly. Not one officer who testified came to the defense of Constable Galassi’s ultimate actions. While some charitably indicated they thought he was joking, none would commend or condone his actions.

As members of society, we must be particularly concerned about this type of gun play. But by the grace of God no one was seriously or fatally harmed in these 9 repeated incidents. As youngsters are often told, “No one is accidentally shot with a loaded gun”. The inference being that one always thinks the gun with which they are playing is unloaded.

Clearly there are cases where the acceptable range of penalty would include dismissal for even one isolated incident of gunplay (Nothing). Here we have not one, but 9 separate incidents.

The Hearing Officer was within the acceptable range of penalty open to him when he imposed the penalty of resignation or dismissal within 7 days in default of resignation. He based this on very strong evidentiary foundation, his reasoning was sound, and he committed no error in principle.

We accordingly dismiss the appeal as to sentence on count 3 and uphold the decision of the hearings officer in that regard.

DATED THIS 3RD DAY OF SEPTEMBER 2003.

Peter J. Doucet Frederic G. Farrell, Q.C.

Michele J. Shephard

Member, OCCPS Member, OCCPS Member, OCCPS