Kenney v. Ontario Provincial Police, 2004 ONCPC 8

OCCPS-04-08

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Kenney v. Ontario Provincial Police, 2004 ONCPC 8

REASONS FOR DECISION

DETECTIVE SERGEANT CHRIS KENNEY Appellant

ONTARIO PROVINCIAL POLICE Respondent

Presiding Members: Douglas Smith, Member Brenda Weese, Member

Appearances: Lorna E. Boyd, Counsel for the Appellant Ted Carlton, Counsel for the Respondent

Hearing Date: Tuesday, April 27, 2004

This is an appeal from a penalty imposed following a finding of discreditable conduct made against Detective Sergeant Chris Kenney.

Background:

On Monday, March 4th, 2003, at approximately 9:30 p.m., members of Frontenac Detachment of the Ontario Provincial Police were dispatched to a single vehicle collision. The officers found an unmarked police cruiser on its roof with extensive damage to the vehicle. Several beer cans were visible in the interior of the vehicle and at the scene. Eleven cans in total were seized. The driver was recognized by the attending officers as Detective Sergeant Chris Kenney.

Kenney displayed signs of impairment. He was unsteady on his feet. His eyes were watery and bloodshot and his speech was slurred. Officer Kenney was steadying himself against the hood of a truck. Officer Kenney stated to the officers at the scene “I’m really sorry about this guys, obviously I’m drunk.”

Detective Sergeant Kenney was arrested for impaired driving. He repeatedly asked the officers not to arrest him but to take him home. Kenney tried to walk away from the accident scene and following a brief scuffle was handcuffed and transported to the Frontenac Detachment. Kenney refused to speak to legal counsel and to provide a breath sample. He was subsequently charged with the criminal offences of failing to provide a breath sample and impaired driving.

On April 1st, 2003, Detective Sergeant Kenney appeared in criminal court and pled guilty to the impaired operation of a motor vehicle and refusal to comply with the demand for a breath sample. He was fined $600 on each charge and his licence was suspended for 12 months. He was also made subject to ignition interlock sanctions for a further 12 months.

Detective Sergeant Chris Kenney was subsequently charged with discreditable conduct in that he was found guilty of an indictable criminal offence or a criminal offence punishable upon summary conviction, contrary to section 2(1)(a)(ix) of the Code of Conduct contained in the Schedule to Ontario Reg. 123/98 as amended (the “Code”).

The Hearing:

Officer Kenney appeared before Superintendent Morris Elbers (the “Hearing Officer”) on October 23, 2003 and pled guilty to the charge. An agreed statement of facts were read on the record. The Hearing Officer accepted the plea and found Kenney guilty of misconduct.

In a matter of penalty, the Prosecutor, Inspector Kathryn Rippey requested a two-year demotion to constable following which Kenney could enter the promotional process for sergeant.

The Defense Counsel Lorna E. Boyd recommended a one-year demotion to constable and a return to the rank of sergeant when that year had expired, and that a number of hours be forfeited from his statutory overtime bank.

Inspector Rippey noted that Detective Sergeant Kenney had been a police officer for over 22 years. He was originally a member of the Peel Regional Police Service, and joined the OPP in 1991. There was no previous disciplinary actions in his file.

In support of her position, Inspector Rippey submitted four documents.

The first was a memorandum dated June 19th, 2003, indicating that the penalty sought would be demotion.

The second document was a memo from Superintendent Christopherson dated December 1998 to staff of the OPP. This letter formally reminded members that the OPP maintains a zero tolerance in relation to alcohol/motor vehicle misconduct. At a minimum, the penalty to be sought for members involved in such conduct would be demotion in rank.

The third document was a photocopy of pages 156 and 157 from Ceyssens, Dunn and Childs Annotated Ontario Police Services Act. The annotation regarding section 68 provides an explanation that it is within the authority of a tribunal to require an officer to reapply for promotion following a specified period of demotion, and the specified period of demotion reflects the specific and general deterrence appropriate in the circumstances.

The fourth document was Sergeant Kenneth Kyle and York Regional Police Service (March 11, 2003, O.C.C.P.S.). This case speaks to issues of impaired driving and considerations of rank.

Inspector Rippey stated the aggravating factors in this case include:

1. It involved a force vehicle;
2. Detective Sergeant Kenney was off duty at the time of the collision;
3. There was liquor in the car;
4. He offered some measures of resistance to the arresting officers;
5. The arresting officers were subordinates to him in rank;
6. He refused a breath test;
7. Damages to the force vehicle was estimated at $25,140.61, rendering the vehicle a total loss.

Inspector Rippey noted that Detective Sergeant Kenney’s career profile shows that there is no indication that alcohol has been a problem for him and the need to address rehabilitation was not a factor. She noted that Detective Sergeant Kenney had apologized to fellow OPP officers, the Detachment and to the court showing his remorse for the incident.

Counsel for the Appellant, Lorna E. Boyd, provided the background regarding a number of devastating and life-altering events that occurred to Detective Sergeant Kenney a short period of time before March 24th, 2003.

1. Sergeant Kenney had been going through a difficult and contentious separation and divorce. A number of issues with respect to his three young children, including visitation were particularly upsetting and stressful.

2. In February, 2003 his collie dog, a long-time companion, who followed him everywhere was killed on the road.

3. Sergeant Kenney was remarried and in February 2003 anticipated the arrival of a fourth child. This ended when a routine ultrasound revealed the baby was dead. His wife was induced into labour to deliver a dead baby girl. He was unable to arrange a funeral because he did not want his child to be buried alone by herself so he chose cremation. It was his choice to pick up the remains of his child and drive them home. This happened two weeks prior to the March 24th, 2003 events.

Detective Sergeant Kenney said in his attempt to be strong for his wife, he held everything inside. He indicated as a result of all these situations he was in an extreme fatigue level, and often he was only sleeping two or three hours a night. He admitted that there is no excuse for his actions the night of the accident. He said his actions were deplorable and were a stupid once in a lifetime mistake.

Officer Kenney referred himself to counselling on March 27th, 2003. In a written report, psychologist Dr. Lapalme stated “What impressed me was his capacity to acknowledge his errors and see how his own reactions were linked. He appeared sincere and remorseful for his actions ... He recognized past events he probably had not dealt with properly, (death of a child, the death of a favourite animal, separations).”

Ms. Boyd had 13 letters of reference supporting Detective Sergeant Kenney. Detective Inspector Bush stated that Detective Sergeant Kenney’s work ethic and investigative proficiency were first-rate. He described him as a gentleman.

Inspector Van Straalah indicated that Detective Sergeant Kenney had accepted full responsibility for his actions and went out of his way to apologize for the embarrassment his actions may have caused. He indicated that Detective Sergeant Kenney took on new duties assigned after these charges arose and created a positive situation in his new position.

Inspector Van Straalah stated that Detective Sergeant Kenney showed real professionalism and he would gladly have him work for him in the future.

Detective Inspector Bowmaster stated that he has known Kenney for ten years and classified him as skilled and conscientious. He described the March 24th event as being totally out of character for Chris Kenney.

Randall P. Gibson, a Kingston lawyer, has known Detective Sergeant Kenney for some time both as a Crown Counsel and Defense Counsel described Chris Kenney as an exemplary representative of the Ontario Provincial Police. He indicated that the actions that led to the charges of discreditable conduct were entirely out of character and he felt that Detective Sergeant Kenney was capable of continuing his current job as a respected and senior member of the Ontario Provincial Police.

Counsellor Boyd argued that this case is clearly distinguishable from Kyle. Staff Sergeant Kyle was involved in an accident while impaired, uttered racial slurs, assaulted a man and identified himself as a police officer.

Ms. Boyd described Staff Sergeant Kenney’s career as exemplary, and his conduct since these events as beyond exemplary.

The Hearing Officer’s Decision:

Superintendent Elbers released his decision on December 4th, 2003.

He stated in part that drinking and driving is a serious offence and one that is totally unacceptable in our society. Police officers who have sworn to uphold the law, and there is a higher expectation that they are both aware and responsible in this regard. Police officers who hold positions above the constable rank should and must be more diligent in their demeanour and behaviour, especially when alcohol is involved.

He noted that the Ontario Provincial Police spends a great deal of time, energy and effort to educate the public and enforce the law in this specific area. Community Service Officers, RIDE Programs, Snowmobile and Marine Programs, public and school programs within communities promote the message, “Stop Drinking and Driving.”

Superintendent Elbers acknowledged Detective Sergeant Kenney’s letters of support attesting to his strong work ethic and investigating skills. He however noted that lack of a driver’s licence for two years would cause hardship to the organization.

In his deliberations regarding penalty, the Hearing Officer stated that he did not have to consider rehabilitation. He noted that there was no evidence that alcohol was a problem. Detective Sergeant Kenney had quit drinking.

Superintendent Elbers also commented that specific deterrence was not a great concern as he believed Detective Sergeant Kenney had learned a great deal from his experience. Detective Sergeant Kenney sought assistance immediately and pled guilty at the earliest opportunity. He apologized to the officers who were involved in his arrest for his unprofessional conduct on the night of his arrest. He was remorseful for his behaviour on March 24th, 2003.

The Hearing Officer stated that general deterrence was the main focus of sentencing in this matter. The aggravating factors in the case for consideration were: 1) off duty conduct, 2) driving a police vehicle, 3) liquor in the vehicle, 4) resisting arrest to subordinate officers; and 5) refusing a breath test.

Superintendent Elbers quoted from Page 3 of Dewar and Ontario Provincial Police (Hearing Officer M.P. Elbers, February 12, 2003). “ … I must impose a disposition that is clear, unequivocal message that does not underscore the seriousness of this offence …”

Superintendent Elbers noted that in 1997 and 1999, Superintendents Thom and Christopherson had issued internal correspondence detailing the OPP’s zero tolerance policy regarding drinking and driving offences by members of the force.

The Hearing Officer reasoned that the issue was whether or not Detective Sergeant Kenney would be returned directly to the Detective Sergeant rank or would have to reapply to the promotional process at the end of the demotion period. Referencing the Kyle case he reasoned that the requirement to compete for promotion following the agreed upon demotion did not render the penalty harsh or excessive.

In light of the seriousness of this allegation and bearing in mind all the evidence placed before him, the Hearing Officer sentenced Detective Sergeant Kenney to a demotion from Detective Sergeant to First Class Constable for a period of two years. Upon completion of the two-year period he could apply for consideration in the next promotional process.

The Appellant’s Position:

On December 18, 2003 an appeal of penalty was filed to the Ontario Civilian Commission on Police Services under subsection 70(1) of the Police Services Act, R.S.O. 1990, C.P. 15 as amended (the “Act”).

The grounds for appeal were:

1. The penalty was unduly harsh given the totality of circumstances
2. Insufficient weight was given to mitigating circumstances
3. Excessive weight was given to some aggravating factors; and
4. Options presented as restitution were not considered.

Ms. Boyd argued that insufficient weight was given to the personal difficulties suffered by the Appellant in the short time leading up to March 24th, 2003. These included the death of a child, loss of a long-time canine friend and the separations from his three children caused by a divorce.

Ms. Boyd argued that the Adjudicator erred by imposing an unduly harsh penalty given the totality of circumstances and the extremely responsible and remorseful conduct of the Appellant after he was charged. The efforts of the Appellant to promptly refer himself to a counseling agency, participate in a comprehensive assessment, attend ongoing counseling to understand his own conduct, as well as meeting with the Force psychologist should be recognized and encouraged as responsible post charge conduct.

Ms. Boyd disagreed with the comparison to the Kyle case stating there was significant differences. Mr. Kyle took 10 months to plead guilty to charges, uttered racial slurs and committed assault on a member of the public following a motor vehicle accident. He was impaired at the time.

Ms. Boyd stated the Hearing Officer erred when he did not consider Detective Sergeant Kenney’s offer of overtime hours as restitution for the loss of Force vehicle and that the penalty given causes him salary losses of over $17,702.00 over two years and negatively affects his pension.

Respondent’s Position:

Mr. Ted Carlton argued that the decision of the Hearing Officer is both correct and proper and should stand.

The Respondent respectfully submitted that the penalty imposed by the Hearing Officer was fair and a reasonable one and should not be disturbed on appeal. He argued that:

1. The penalty imposed was for a serious act of misconduct.
2. The statutory penalties imposed as a result of the conviction of the Appellant undermines the effectiveness and utility of Detective Sergeant Kenney for a two-year period.
3. The Commission should only vary penalties on appeal when the penalty imposed by the Hearing Officer is unfair or unreasonable. On this point he noted Lewin and Toronto Police Service (2001), 3 O.P.R. 1472 at page 1477 (O.C.C.P.S.).

The Commission should not lightly interfere with the penalties imposed by a Hearing Officer. This is given that it is a decision reached after a full and fair consideration of all the relevant factors and represented the seasoned judgement of a senior officer who was familiar with its expectations and, as such, was in a unique position to determine an appropriate disposition.

4. The Hearing Officer properly considered the evidence presented by the Appellant concerning his apology to the arresting officers, the letters of support for the Appellant and the Appellant’s personal circumstances at the time of the accident.
5. Regarding the financial consequences of the imposed penalty, he noted that every penalty imposed under section 58 of the Act carries with it financial impact. This is only one factor among many to be considered in determining an appropriate penalty.
6. Finally, it was respectfully submitted that the Hearing Officer exercised his discretion in a reasonable manner in declining to order forfeiture of hours in addition to the demotion.

Decision:

The Commission has in the past enunciated a number of principles that must be considered in assessing penalty. These include the nature and seriousness of the offence, the ability to reform or rehabilitate the officer and the damage to the reputation of the police force. In addition there are other mitigating factors that must be taken into consideration that include the employment history and experience of the officer, the recognition of the seriousness of the transgression and the handicap or other relevant personal circumstances.

These principles were clearly set out by this Commission in the case of Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S) and have been often cited in a number of decisions. In addition this Commission has stated that “consistency in the disciplinary process is often the earmark of fairness. The penalty must be consistent with similar cases that have been dealt with on earlier occasions”. Schofield and Metropolitan Toronto Police (1994), 2 O.P.R. 615 (O.C.C.P.S.).

These are the principles against which we must judge whether the penalty in the matter before us is appropriate. There is no doubt that the charges against Detective Sergeant Chris Kenny constitute serious misconduct. The Hearing Officer in his judgment clearly set out the facts that lead to both criminal and disciplinary charges. These include the fact that Detective Sergeant Kenney was driving an unmarked police cruiser that was involved in a serious single vehicle accident resulting in a complete write off of the vehicle. In addition there were several beer cans clearly visible in the cruiser. Detective Sergeant Kenney was uncooperative at the scene of the accident resulting in him being handcuffed and pinned to a police cruiser.

Furthermore upon arrival at the Frontenac Detachment Detective Sergeant Kenney refused to provide a breath sample as required by law. As a result he was charged with impaired driving and failing to provide a breath sample pursuant to the provisions of the Criminal Code. There is no doubt that his conduct has the potential to seriously damage the reputation of the OPP, particularly in light of the fact that not only the OPP but other police forces throughout Canada have devoted a great deal of effort to attempt to discourage drinking and driving.

This said, however, there are a number of factors that are a credit to Detective Sergeant Kenney and must be considered by us pursuant to the principles as set out in Williams in assessing his penalty. Detective Sergeant Kenney has had an unblemished service record of 22 years. In addition a number of e-mails were provided at the hearing attesting to Detective Sergeant Kenney’s investigative skills and professionalism. A letter was provided at the hearing by Detective Inspector Bowmaster in which he set out his desire that Detective Sergeant Kenney return to work as a supervisor and in which he attested to Detective Sergeant Kenney’s strong work ethic. Furthermore two letters were provided from Kingston lawyers attesting to Detective Sergeant Kenney’s work ethic and the out of character nature of this incident.

There is no doubt that Sergeant Kenney’s conduct at the scene of the accident and at the Detachment were disgraceful and most unfortunate. However, we accept the submissions of Ms. Lorna E. Boyd that his behaviour must be judged in its totality of a person under the influence of alcohol. This is substantiated by the fact that Detective Sergeant Kenney, much to his credit attended at the Detachment the following day, and apologized to his fellow officers for his conduct. In addition he has at all times accepted full responsibility for his actions and was cooperative and forthright with respect to the Professional Standards Bureau’s investigation.

He entered a plea of guilty at the earliest reasonable opportunity with respect to the charges laid against him pursuant to the Criminal Code and entered a plea of guilty to the charge of misconduct laid pursuant to the Act. In addition he prevented the necessity of a full hearing by agreeing upon a statement of facts. The Hearing Officer had no doubts that Detective Sergeant Kenney is remorseful for his behaviour on March 24, 2003, and we heard nothing in the arguments before us to persuade us otherwise.

Further, there is no doubt that Detective Sergeant Kenney suffered a series of personal tragedies before the incident. He and his first spouse had separated and a protracted and contentious separation and divorce followed. We were advised that the Appellant has three children from the first marriage and that he found issues with respect to custody and visitation with the children to be most upsetting and stressful. In February 2003 the Appellant lost a long time canine companion. A few weeks prior the impaired driving the Appellant and his second wife lost the child that they were expecting at the beginning of May, 2003. The Appellant and his wife were advised that his baby’s heart has stopped beating and as a result the birth of a dead child was induced. This required the Appellant and his wife to name the deceased child and plan for a funeral including purchasing a casket, viewing the remains and arranging for cremation.

There can be no doubt that the totality of all of these events were devastating to the Appellant and certainly in our opinion were far in excess of normal daily stress that all persons suffer from time to time. The Appellant much to his credit attended for a comprehensive assessment at the addictions agency “Options for Change” on April 9, 2003. Mr. Chris Myers, the Addiction Counsellor, provided a report dated October 16, 2003 for the Police Services Hearing in which he stated that the Appellant had:

... gone to great lengths to begin to understand why he drank and drove that evening. Mr. Kenney has expressed extreme remorse and regret for the act that he committed.

The report went on to further state that:

It appears that Mr. Kenney has consumed alcohol during high stress and to deal with pressures. Mr. Kenney’s personal relationships have caused stress and anguish for him. Mr. Kenney reports very little sleep on a regular basis, as little as 2-3 hours an evening. High stress, lack of sleep and alcohol can have disastrous effects. Mr. Kenney has learned that alcohol and affects him quite differently and dramatically under these conditions. Mr. Kenney reports to have stopped drinking completely and has set a goal of abstinence. Mr. Kenney has been attending out patient councelling since his assessment on a regular bi-monthly basis.

The Hearing Officer in his judgment clearly recognized that rehabilitation was not a factor in reaching his decision as to penalty and further acknowledged that alcohol was no longer a factor as Detective Sergeant Kenney had quit drinking.

As this Commission has stated in previous decisions the penalty must be tailored to both punish and deter while not causing undue or excessive hardship and yet sufficient to demonstrate that any re-occurence will not be tolerated. This is the balancing act that must achieved. Although it is important that the penalty must be consistent with other similar cases we recognize that each fact situation is different and as a result there will be a spectrum of penalties. The cases to which we were referred by the Respondent showed a great disparity in the penalty imposed for drinking and driving, ranging from forced resignation to a forfeiture of 15 days, although the more recent decisions appear to favour demotion over resignation.

This said, we do agree with the Hearing Officer that the offence committed by the Appellant is most serious, and must therefore result in a substantial penalty. We do however consider the penalty imposed by the Hearing Officer to be outside of the appropriate range considering all facts of this case. The Hearing Officer although considering, did not give appropriate weight to the Appellant’s previous outstanding record of 22 years, his personal tragedies, and the recommendations that he received from many parties at the Hearing.

In his decision the Hearing Officer referred to “some personal tragedy” of the Appellant. It is clear that Detective Sergeant Kenney endured more that just “some personal tragedy” and clearly was under extreme pressure and stress at the time of this incident. Furthermore the Hearing Officer appropriately recognized that there was no need for either specific deterrence or for rehabilitation based on the facts that Detective Sergeant Kenney’s behaviour was clearly out of character, and had little or no chance of being repeated as he no longer consumes alcohol. These findings however are not reflected in his final sentence. Furthermore the Appellant, much to his credit, took it upon himself to seek counselling in an attempt to determine and remedy the cause of his misconduct.

We heard argument about the applicability of the principle as enunciated by this Commission in Kyle and York Regional Police Service. In that case the Commission found that the penalty was not rendered harsh or excessive due to the requirement imposed upon Staff Sergeant Kyle that he would have to compete for promotion following the agreed upon period of demotion. The question, however, that we must ask in the present case is whether such a condition is applicable to the facts before us in this appeal. We think not.

In the Kyle case it is clear that the officer’s misconduct was deplorable. Not only was Officer Kyle involved in a motor vehicle accident while impaired but he also uttered racial slurs to and assaulted a member of the public. No doubt, such behaviour, raised serious concerns as to his ability to once again assume a senior rank and hence the imposition that he must prove his suitability by competing for promotion. In that case, it is interesting to note, that Staff Sergeant Kyle was sentenced to a demotion to the rank of Sergeant for 12 months following which he was to remain a Sergeant but would be permitted to enter the promotional process for the rank of Staff Sergeant at the first opportunity.

We can see no need for imposing such a condition upon Detective Sergeant Chris Kenney. There was nothing in the fact situation before the Hearing Officer to lead to any concerns that Detective Sergeant Chris Kenney is not fully qualified to resume his senior position following the demotion for a period of two years. On the contrary. It is clear that, other than this one time incident, Detective Sergeant Chris Kenney is an exemplary officer whose conduct was clearly out of character, and was no doubt caused by very serious personal tragedies. We consider a demotion for a period of two years considering all circumstances to be harsh, however we do acknowledge that it falls into a range that would be reasonable to be imposed by the Hearing Officer.

We do find, however, taking into consideration all facts before us in this appeal, that the sentence becomes unduly harsh and excessive when the added condition is imposed upon the Appellant that he must then enter into promotional process to resume his former rank. This is particularly the case given that there is not concern about his capacity to serve as a sergeant.

Accordingly the penalty is varied in that Detective Sergeant Kenney will be demoted to first class constable for a two-year period following which he will assume his former rank of Detective Sergeant.

DATED THIS 12TH DAY OF JULY 2004.

Douglas Smith Member, OCCPS

Brenda Weese Member, OCCPS