OCCPS #04-11
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION - PENALTY
SUSAN MANCINI Appellant
CONSTABLE MARTIN COURAGE (NIAGARA REGIONAL POLICE SERVICE) Respondent
Presiding Members: Murray W. Chitra, Chair Brenda Weese, Member
Appearances: Bruce Robertson, Counsel for the Appellant Brian R. Simpson, Counsel for the Respondent
Written Submissions: September 10, 2004
Ms. Susan Mancini brought an appeal to this Commission under section 70(3) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) from a decision of Superintendent Steven R. Hibbard (the “Hearing Officer”) dated June 27, 2003.
The decision was that Constable Martin Courage was not guilty of the disciplinary offence of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at O. Reg. 123/98 as amended (the “Code”).
Ms. Mancini’s appeal was argued on April 15, 2004. In a written decision dated August 12, 2004 we revoked the finding of the Hearing Officer and substituted a determination of guilt against Constable Courage.
The purpose of this decision is to assess an appropriate penalty.
Background:
The aspects of Constable Courage’s behavior that are of concern are set out in our written reasons of August 12, 2004. For the purpose this decision a number of details are worth repeating.
As a result of a public complaint by Ms. Mancini, Constable Courage was charged with the disciplinary offence of discreditable conduct. The particulars of that allegation were that:
Between August 15, 2001 and November 30, 2001 … [Constable Courage] engaged in a course of behaviour that was known to be vexatious by continuing to contact directly and/or indirectly Ms. Susan Mancini, a person … [he] had been involved in a relationship with, after … [he was] were told … [his] actions were improper and to cease.
[His] … behaviour occurred both off duty and on duty while in uniform. Specific instances of inappropriate actions include:
Aug. 16 – [He was]… arrested for Breach of the Peace
Sept. 14 – [He was] … advised not to contact Ms. Mancini anymore yet [he] … persisted
Oct. 9 - On duty [he] … attended Ms. Mancini’s work place causing her distress
Oct. 9 - On duty [he] … attended Ms. Mancini’s home
We determined that the undisputed facts of this case were that on August 16, 2001 Ms. Mancini telephoned the Niagara Regional Police Service and reported an “unwanted person” in her home.
That person was Constable Courage. He had a room there. Ms. Mancini and he had a personal relationship.
The police responded and Constable Courage was arrested to prevent a breach of the peace. Constable Courage was removed in handcuffs to the police station where he worked and lodged in a cell. He was later released.
Constable Courage was counseled on three separate occasions by superior officers to stay away from Ms. Mancini. Ms. Mancini was referred to the Niagara Regional Police Service’s Domestic Violence Coordinator and told to contact the police if Constable Courage showed up at either her work or home.
Despite these warnings Constable Courage went to Ms. Mancini’s place of employment three times (once in uniform while on duty driving a police cruiser). Ms. Mancini called the police on two occasions. Finally, while on duty and in uniform Constable Courage drove his police cruiser to Ms. Mancini’s home and paid a nine-year old child to deliver her a love note.
We found that this conduct was disorderly, prejudicial to discipline and likely to bring discredit to the reputation of the Niagara Regional Police Service in contravention of section 2(1)(a)(ix) of the Code.
Decision
We requested submissions with respect to penalty from counsel for Constable Courage. They were received September 10, 2004.
Mr. Simpson, on behalf of Constable Courage suggested we impose a penalty of twelve hours forfeiture of pay. Mr. Robertson, on behalf of Ms. Mancini, had recommended a penalty of sixty hours loss of pay. We also note that at the original disciplinary hearing the Prosecutor submitted that a penalty of forfeiture of thirty hours would be appropriate.
The factors to be taken into account when imposing penalty are well established. There are three key elements. They include the nature and seriousness of the misconduct in question, the ability to reform or rehabilitate the officer and the damage to the reputation of the police service that would occur if the officer remained on the force.
Other factors can be relevant, either mitigating or aggravating the particular conduct in question. These include:
employment history and experience;
recognition of the seriousness of the transgression;
provocation;
handicap and other relevant personal or family considerations;
management approach; and
specific and general deterrence.
As well, when imposing penalty it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure both fairness and consistency.
How do these considerations apply to the facts of this case?
Constable Courage has been employed by the Niagara Regional Police Service for just under twenty-eight years. With the exception of the matters before us he has not been the subject of any disciplinary proceedings. He has been active in his church and acknowledged for his efforts at community policing in Niagara. This is certainly to his credit.
In October of 2000 Constable Courage and Ms. Mancini developed a personal relationship. It is clear that by August of 2001 Ms. Mancini decided that she wished to terminate that relationship. This decision obviously caused Constable Courage great difficulty. As well, it generated disagreements of a financial nature.
Constable Courage was described during the original disciplinary hearing by Acting Sergeant Payk (his former brother-in-law) as “a very stubborn, obstinate character, [who] doesn’t take criticism very lightly …” 1 This observation was based on 27 years acquaintance with Constable Courage.
Constable Courage felt that he was entitled to stay in Ms. Mancini’s home even when she clearly told him to leave. Indeed, it is evident that he was prepared to be arrested by fellow officers and put in a cell at his place of work rather then walk away.
As well, notwithstanding being advised three times by superior officers to stay away from Ms. Mancini, Constable Courage continued to contact her in person, by phone and in writing. This occurred while both on and off duty. He was of the view that his employer had no right to interfere in what he saw as his personal life.
However, as we pointed out in our earlier decision, police services across Ontario spend a great deal of time and effort dealing with both domestic disputes and their aftermath. As a police officer of some 27 years experience this would have been known to Constable Courage.
Mr. Simpson suggests that we view Constable Courage’s behaviour as “clumsy or sophomoric activity in a romantic breakdown”. Even acknowledging the emotional turmoil inherent in the breakup of any relationship, given the above noted context, we cannot consider Constable Courage’s misconduct as being minor in nature. Certainly, it can only be seen as the sort of behaviour that would diminish the respect that a reasonable person in the community might have in either the capacity or commitment of the Niagara Regional Police Service to deal effectively with domestic disputes.
Mr. Simpson quite rightly points out that there is no suggestion that Constable Courage was ever violent or threatened physical harm to Ms. Mancini. Constable Courage has not been the subject of any criminal proceedings arising out of his actions. He submits that Constable Courage has suffered embarrassment and humiliation at his place of work and suffered stress as these matters have proceeded through the disciplinary process.
Further, on the question of potential for rehabilitation and specific deterrence Mr. Simpson notes that there has been no accusation of inappropriate conduct or behaviour since the events in question. Indeed, we are advised that Constable Courage remains at his original Detachment and hopes to serve a further two years and then retire.
On the facts of this case Constable Courage warrants no mitigation for recognition of the seriousness of his actions. There is no suggestion of handicap. Further, we see no evidence of inappropriate management approach.
Provocation is not an issue.
Finally, we acknowledge that the facts in this case are unique and there are no precedents of a similar nature.
We note that neither Ms. Mancini nor the original Prosecutor in this case sought a penalty greater than loss of pay. Further, we are advised that if Constable Courage were to receive a penalty of more than 40 hours loss of pay then under the provision of the current collective agreement he would forfeit longevity pay in the amount of $6,000.
We agree that given Constable Courage’s lengthy positive work record and the absence of any further incidents that an appropriate penalty would be loss of pay. Further, to our mind it would be excessive if such a penalty resulted in the loss of longevity pay in the amount of $6,000.
However, the loss of twelve hours pay as suggested by Mr. Simpson would only represent a financial penalty of $420. As well, given the provisions of section 68(4) of the Police Services Act it could be satisfied by deduction from existing vacation, overtime or sick leave credits. To our mind, this would not give sufficient weight to the nature of the misconduct in question.
Accordingly, we order that Constable Courage be reprimanded and lose 25 hours pay. We direct that a copy of this decision be placed on Constable Courage’s file for a minimum period of two years. Further, the loss of 25 hours pay may not be satisfied by the application of any accumulated vacation, overtime, sick leave credits or other entitlements.
DATED AT TORONTO THIS 13TH DAY OF OCTOBER, 2004.
Murray W. Chitra Chair, OCCPS
Brenda Weese Member, OCCPS