Constable Larry Mikalachki v. Toronto Police Service and Jesse Garrett, 2004 CanLII 77201

ONTARIO CIVILIAN POLICE COMMISSION

DATE: July 7, 2004

FILE: OCPC-04-007

CASE NAME: CONSTABLE LARRY MIKALACHKI AND THE TORONTO POLICE SERVICE AND JESSE GARRETT

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

BETWEEN:

Constable Larry Mikalachki APPELLANT

-and-

Toronto Police Service and Jesse Garrett RESPONDENTS

DECISION

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

Hearing Date: May 28, 2004

Hearing Location: [Blank in original]

Appearances: Gary Clewley, Counsel for the Appellant Michael Martosh and Kerri A. Kitchura, Counsels for the Respondent, Toronto Police Service

I. Introduction

1This is an appeal by Constable Larry Mikalachki, from the penalty imposed following a plea of guilty to one count of insubordination contrary to the Police Services Act, R.S.O, 1990, c.P.15 as amended. As a result of that plea, Hearing Officer Superintendent A.R. Griffiths imposed a penalty of nine days (72 hours).

2The Appellant had originally been charged with three separate counts of misconduct, which charges arose as a result of a public complaint, made by Mr. Jessie Garrett, the essence of which was that the Appellant caused CPIC inquiries to be conducted concerning Mr. Garrett and others, as well as a vehicle, which queries were not for official police business and released this information to his father, Mr. Gordon Mikalachki, who is involved in a neighbourhood dispute with Mr. Garrett.

3It is the position of the Appellant that the evidence tendered on the penalty hearing was by way of an agreed upon statement of fact entered into between the prosecutor and the officer. The facts as read in appear at pages 7 and 8 of the transcript. The acceptance of the facts as being basically correct is recorded at page 9 of the transcript. The complainant, Mr. Garrett, was present before Superintendent Griffiths on June 19, 2003 and represented by counsel. It is not disputed that the complainant enjoys party status to these proceedings as well as the penalty proceedings, which gave rise to this appeal.

4The complainant, Mr. Garrett did not appear at the hearing of this appeal although the proceedings were stood down until 10:15 a.m. to allow him time to appear.

5From reading the transcript, the agreed upon statement of facts as read in by Inspector Marks and acceded to by the Appellant officer was not put to Mr. Garrett for his acceptance or comment. At no point in the transcript can any indication be found that Mr. Garrett agreed to or accepted the agreed upon statement of fact.

6As the argument of this appeal proceeded, it was clear that the Appellant did not take issue with the nine days imposed, but rather with the procedure which was followed at the penalty hearing that gave rise to the decision. In essence, the Appellant concedes that the decision is a correct one, but that it was arrived at in the wrong fashion.

7The Appellant’s concern essentially relates to the procedural difficulties experienced at the penalty hearing, and that the Hearing Officer went beyond the scope of the agreed statement of fact in finding that the officer revealed the contents of the improper inquiries. The Appellant officer contends that he did not reveal the contents of the inquiries. This is somewhat difficult to accept when one reads the comments of Inspector Marks commencing at line 26 on page 7 of the transcript as follows: “And after that I will enter the officer’s Record of Service and Documentation from his personnel file. … on April 10,1996, Mr. Jessie Garrett complained to the Office of the Public Complaints Commissioner, that Police Constable Larry Mikalachki, badge number 2561, had accessed his criminal record, by checking his previous name, that of Wayne Rampton, and had released this confidential information to his father, Mr. Gordon Mikalachki”.

8The Appellant’s concern also relates to the manner in which “evidence” was received at the penalty hearing. He argues, in essence, that the Hearing Officer took the equivalent of unsworn testimony by way of a victim impact statement from Mr. Garrett and his wife and then relied upon that information, which to a great extent differed from the agreed upon statement of fact.

9Mr. Clewly, for the Appellant, quite properly concedes that the penalty of nine days, simply for accessing CPIC information improperly, is well within the range of dispositions available to the Hearing Officer for such a serious breach. He urges, however, that we should make editorial comment about the procedural difficulties that were encountered before the Hearing Officer, at the penalty proceedings and that we should consider decreasing the penalty by one day, to remedy the errors in the reasoning of the Hearing Officer.

10We do not feel that the Hearing Officer has made an error in principle, nor that he has exceeded the discretion and range of penalties available to him for the behaviour set forth in the agreed upon statement of fact. We also feel that the Hearing Officer had authority pursuant to section 15 of the Statutory Powers and Procedures Act, R.S.O 1990, c.s.22 as amended, to receive the comments of Mr. And Mrs. Garrett as he did.

11We do feel it appropriate however, to comment that in the normal course, if a Hearing Officer is going to receive evidence on a penalty, or otherwise, that such evidence be taken in the normally accepted fashion of sworn or affirmed evidence and be formally presented. Our comments as to the application of section15 of the Statutory Powers and Procedures Act, should not be taken to encourage Hearing Officers to depart from the usual formality that one would expect in a quasi-judicial hearing.

12Nonetheless, the decision arrived at by the Hearing Officer is proper, and we will not interfere with it. Our jurisdiction to interfere with a decision is restricted to those instances where there has been a manifest error in principle, resulting in a penalty which is clearly or manifestly excessive, or if the Hearing Officer failed to adequately consider all of the factors before him or her. No such errors were made by the Hearing Officer in this case, and the appeal is accordingly dismissed.