OCCPS #05-02
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
DETECTIVE CONSTABLE JAMES BUCKLE Appellant
ONTARIO PROVINCIAL POLICE Respondent
Presiding Members: Murray W. Chitra, Chair Peter Doucet, Member Bill Marra, Member
Appearances: Gavin J. May, Counsel for the Appellant Jinan Kubursi, Counsel for the Respondent
Hearing Date: Tuesday, March 1, 2005
This is an appeal from a decision of retired Superintendent Robert J. Fitches (the "Hearing Officer") dated March 26, 2004 that Detective Constable James Buckle was guilty of four allegations of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at O. Reg. 123/98 (the "Code").
As well, this is an appeal against the penalty imposed by the Hearing Officer on July 8, 2004. The penalty was that Detective Constable Buckle be dismissed from the Ontario Provincial Police forthwith.
Background:
Detective Constable James Buckle is 42 years old. He joined the Ontario Provincial Police ("OPP") in September of 1987 following several years service with the Canadian Armed Forces.
In 1991 Detective Constable Buckle was assigned to the North Bay Field Unit (the "Unit") of the OPP's Drug Enforcement Branch. The Unit consisted of a sergeant, five constables and a secretary. His duties were primarily undercover drug investigation. Detective Constable Buckle worked largely without direct supervision.
In order to pay for expenses related to his employment Detective Constable Buckle was provided by the OPP with two VISA cards. One was in the name of James E. Buckle. The other was in the name of James E. Finocchio. This was Detective Constable Buckle's undercover identity.
In November of 1994 Detective Constable Brent Cecchini was assigned to the Unit. Detective Constable Buckle assumed responsibility for providing this junior Unit member with training and guidance on undercover techniques. The two officers appear to have developed a personal relationship.
In late 1996, with the assistance of Detective Cecchini, Constable Buckle purchased a 1975 Harley Davidson motorcycle from an associate of the Hell Angels for $2,500. The motorcycle was in parts and not roadworthy.
In the summer of 1997 Detective Constable Cecchini was assigned to work as an undercover drug operative in a Joint Forces Project in eastern Ontario. He rented an apartment in Trenton under an assumed name and set up shop as a mechanic in an industrial mall in the same community.
Detective Constable Buckle decided to have the Harley Davidson repaired so that he could sell it. He contacted Detective Constable Cecchini who offered to work on it. Detective Constable Cecchini transported the motorcycle to Trenton from North Bay.
He was not able to make it roadworthy. The two officers agreed that the motorcycle would be taken to Motosport Plus in Kingston to be put in order. This occurred on November 1, 1997.
The cost of these repairs and parts eventually totaled $2,647.32. Payment was made in five separate transactions over the course of a number of months. Four of these transactions used Constable Buckle's OPP issued VISA cards. One payment of $200 was made on Constable Cecchini's undercover OPP VISA. Constable Buckle took possession of the repaired motorcycle on February 23, 1998.
Constable Buckle's multiple charges to Motosport Plus were noticed by Christine Gordon. Ms. Gordon is a civilian employee of the OPP responsible for the processing of OPP VISA accounts. She wondered if the OPP had been double billed in error.
In mid-March Ms. Gordon contacted Constable Buckle by telephone about this and other expense related matters. Following this discussion she paid the balance of the Motosport Plus charges. As a result, the OPP assumed the full cost of the repair of Constable Buckle's motorcycle.
In July of 1997 Detective Constable Buckle was provided by the OPP with a 1995 Nissan Maxima car. This leased and unmarked vehicle was to allow him to perform his duties without risk of being identified as a police officer.
In September of 1997 Detective Constable Buckle states that with the assistance of Detective Constable Cecchini he took the Maxima to a Canadian Tire Store in Kingston to have the tires replaced. He submitted a claim to his Detective Sergeant in North Bay for reimbursement. He was requested to provide a receipt. He could not produce one.
Constable Buckle asked a friend in North Bay to obtain a receipt for him. He was provided with a fake invoice in the amount of $657.80 from Guy's Tires in North Bay. He submitted this invoice to his Detective Sergeant on September 12, 1997. He was reimbursed from a 'special fund' used for OPP undercover activities.
In early 1998, Detective Constable Buckle states that he was driving the Maxima to Toronto when the windshield was hit by a rock from a truck. He states that he had the windshield replaced in Toronto. On January 15, 1998 Detective Constable Buckle submitted a claim to his Detective Sergeant in North Bay for reimbursement of $722.00 for these repairs. The Detective Sergeant requested an invoice.
Detective Constable Buckle could not produce one so he asked Detective Constable Cecchini to help him have one made up. Detective Constable Cecchini approached an acquaintance who made up a false invoice from Castle Auto Glass of North Bay in the amount of $722.34 for a new windshield for the Maxima.
On February 6, 1998 Detective Constable Buckle submitted this false invoice to his Detective Sergeant. Subsequently, Detective Buckle's 'running advance' was credited this amount.
As a result of unrelated events in the fall of 1997 a series of investigations and audits of the Unit were initiated. The above noted transactions with respect to the Harley Davidson, tires and windshield were identified.
Other expense claims were questioned. For the purposes of this appeal, only one is relevant. It concerned a request that Detective Constable Buckle submitted to his Detective Sergeant on August 17, 1997 for $400 cash to give to Detective Constable Monteith to pay an informant. Detective Constable Monteith told investigators that he only received $200 from Detective Constable Buckle.
Detective Constable Buckle eventually became aware that investigators were making inquiries about the Motosport Plus payments. In a conversation with the investigator he acknowledged that the Harley Davidson was his personal property. He clarified the total amount charged to his OPP credit cards. He also told the investigator that 'he knew he screwed up' and offered to 'go back in uniform' if that was deemed necessary.
Detective Constable Buckle was suspended from duty with pay on April 4, 1998. On September 22, 1998 he was served with a number of disciplinary charges. These were subsequently stayed pending the outcome of criminal proceedings.
The Hearing:
At the conclusion of criminal proceedings the disciplinary hearings against Detective Constable Buckle commenced.
A preliminary motion resulted in the severing of one charge. The hearing into the remaining issues commenced on December 1, 2003.
Detective Constable Buckle faced five allegations of discreditable conduct. The first related to the charges that Detective Constable Buckle made to his two OPP VISA cards to Motosport Plus in the amount of $2447.32. The second concerned the payment of $657.80 for tires. The third arose from the payment of $722.34 for replacement of the windshield. The fourth related to the $200 that was not received by Detective Constable Monteith.
The fifth allegation concerned approximately 80 alleged transactions over a 23 month period for different payments, purchases or expenditures totaling approximately $35,000. This allegation was eventually dismissed by the Hearing Officer and is not part of this appeal.
Detective Constable Buckle pled not guilty to all allegations. However, his counsel acknowledged that there were certain aspects of his client's actions that would likely constitute discreditable conduct (i.e. forged receipts). However, he stated that a hearing was necessary to establish a proper factual foundation.
Detective Constable Buckle's disciplinary hearing lasted 13 days. It included testimony from 10 witnesses, several agreed statements of fact and over a hundred exhibits.
The witnesses included the service manager of Motosport Plus, Ms. Gordon, Detective Constable Buckle's Detective Sergeant, Detective Constable Cecchini and Detective Constable Buckle.
The service manager of Motosport Plus confirmed that extensive repairs were made to Detective Constable Buckle's Harley Davidson. He testified that he was asked to have the total cost spread out in a number of payments because the owner did not want his wife to find out about it.
Ms. Gordon gave evidence that she processed a payment on the Harley Davidson for $800. When she received VISA statements with further charges to Motosport Plus she contacted Detective Constable Buckle. She testified that Detective Constable Buckle assured her that these multiple payments were for an OPP vehicle and not an error.
Ms. Gordon also testified that all OPP personnel issued with VISA cards were advised in writing that the cards were not for personal use. However, she acknowledged that this did happen from time to time and that members were required to reimburse such payments.
Detective Constable Buckle testified that he had allowed Constable Cecchini to have his Harley Davidson as a 'prop' to support his undercover identity in eastern Ontario. He acknowledged that he had used his OPP VISA cards to pay Motosport Plus, but that it was his intention to repay his employer once he sold the motorcycle. He testified that at the time of these events he did not have a personal credit card.
He asserted that he had used his OPP credit cards with the knowledge of his supervisor in the past and that this was common practice. He testified that he never told Ms. Gordon that the Motosport Plus charges were for a Service vehicle and that indeed Ms. Gordon was aware that the charges were for a personal vehicle that was being used as an investigative prop.
Detective Constable Buckle acknowledged that he had never reimbursed the OPP for the $2,447.32 paid to Motosport Plus. He stated that this was because he was told when he was suspended that he was to 'wait for instructions' regarding repayment. He indicated that such instructions had never been provided.
Detective Constable Buckle testified that he had both the tires and windshield on the Maxima replaced and that he had paid cash for this work in both cases. He stated that he could not find the receipts when requested, so he had two done up essentially to satisfy the demands of his Detective Sergeant.
He also denied pocketing the $200 that he did not turn over to Detective Constable Monteith. Detective Constable Buckle testified that he gave that money to an informant ("L") who was 'out of favor with Orillia'. He asserted that of this 'disguised' payment was done with the knowledge of his Detective Sergeant.
Detective Constable Buckle's Detective Sergeant testified that he was not aware that any of the receipts provided to him were falsified. Further, he denied that he had authorized a 'disguised' payment of $200 to L.
Detective Constable Cecchini testified. It would seem that he was also the subject of disciplinary proceedings arising from his involvement in the above noted matters and other allegations of inflated expense accounts and false receipts.
Detective Constable Cecchini had pled guilty to these allegations, reimbursed the OPP for his improper use of his OPP undercover VISA and following a joint penalty submission was demoted to 4th class constable for three months. In addition he forfeited 12 hours time off, lost his management competency credit and was directed to take financial counseling.
Detective Constable Cecchini testified that he had assisted Detective Constable Buckle in getting new tires on the Maxima. He was not sure of either the store where this had occurred or whether or not this had been in North Bay or Kingston. As well, he indicated that Detective Constable Buckle had telephoned him to help locate missing receipts for both the tires and windshield.
Hearing Officer's Decision:
The Hearing Officer released his decision on March 26, 2004.
In his judgment he condemned the 'creative' use of credit cards by some OPP personnel to pay for events known as 'take down parties'. However, he found that such practices of dishonesty paled in comparison to the allegations against Detective Constable Buckle.
With respect to the motorcycle repairs he identified the key issue as follows: If it can be demonstrated that Detective Constable Buckle intended to repay the cost of repairs, then it would, in all probability, become a question of a violation of policy. If, on the other hand, the evidence shows that Detective Constable Buckle intended that these costs be interpreted as work-related expenses relative to an O.P.P. owned vehicle, his actions could, quite clearly, be interpreted as discreditable. 1
He then proceeded to analyse the evidence in some detail.
The Hearing Officer noted that Detective Constable Buckle had previously reimbursed the OPP for personal expenses on his VISA when contacted by Ms. Gordon. He concluded however, that the events in question could not be characterized as similar 'one off' transgressions.
The Hearing Officer noted the multiple payments and the explanation that this was to hide the matter from Detective Constable Buckle's wife. He pointed out that Mrs. Buckle had no access to OPP VISA statements.
The Hearing Officer accepted Ms. Gordon's evidence that Constable Buckle had assured her that the expenditures were for a Service vehicle or otherwise proper. As well, he pointed out that Constable Buckle's admission that he 'screwed up' and his offer to go 'back to uniform' was a form of acknowledgement of guilt.
On the question of the tires, the Hearing Officer noted that if Detective Constable Buckle had purchased new tires in Kingston then he surely would have received a receipt and warranty. He suggested that if the purchase had been genuine then there would have been no need to generate a false invoice from North Bay.
He also noted that when the Maxima was returned to the leasing company following Detective Constable Buckle's suspension, the company had to replace the 'new' tires. He questioned whether or not common sense would dictate that replacement tires would have been necessary after only seven months and 48,000 kilometres driving.
On the matter of the windshield, the Hearing Officer again noted the false receipt and concluded:
While it is possible that Detective Constable Buckle would not retain the receipt for the windshield replacement, it is highly improbable that he would do so, given the large dollar amount of the expenditure.
While Detective Constable Buckle seems to be unable to recall the exact name of the company that replaced the windshield, the information he does recall would have [been] sufficient to permit him to either return to the location where the work was done, have one of his colleagues in the Toronto area attempt to find the facility or otherwise contact the company to obtain a replacement receipt.
While it is possible that Detective Constable Buckle might not have considered having this repair covered through the vehicle's insurance, it is highly unlikely that he would fail to do so. Any person, whether they are a police officer or not, is well aware of the availability of comprehensive vehicle insurance to cover mishaps of this nature.
Detective Constable Buckle's use of the Visa card for the motorcycle repairs and other improper expenses indicates that he was not at all hesitant to use the card, whether or not the expenditure was within policy guidelines for the use of the card. His use of cash in this situation is inconsistent with a great deal of the evidence with which I have been presented. 2
This left the matter of the payment to Detective Constable Monteith.
The Hearing Officer noted that Detective Constable Buckle had clearly submitted a request to his Detective Sergeant for $400 to give to Detective Constable Monteith. It was also without dispute that Detective Constable Monteith only received $200.
The Hearing Officer accepted the Detective Sergeant's testimony that he had not approved a 'creative use' of the expense form to make a payment to a discredited informant. He noted that the Detective Sergeant had since retired and had no reason to be untruthful.
Given the above, the Hearing Officer found Detective Constable Buckle guilty of all four counts of discreditable conduct.
Following submissions on disposition he released his penalty decision on July 8, 2004.
The Hearing Officer identified 11 relevant factors to be considered in sentencing and addressed each in turn. These included: public interest, seriousness of the misconduct, recognition of the seriousness of the misconduct, handicap or other relevant circumstances, employment history, ability to reform or rehabilitate the officer, effect on the police officer and the police officer's family, consistency in disposition, specific and general deterrence, employer approach to misconduct in question, damage to reputation of the police force and effect of publicity.
The Hearing Officer noted the personal impact of these events on Detective Constable Buckle and his family. As well, he considered in detail the relevance of the penalty that Detective Constable Cecchini received for his disciplinary charges relative to Detective Constable Buckle's situation. He concluded that given the absence of similar mitigating circumstance (taking responsibility, showing remorse, pleading guilty, making repayment etc...) the two cases were not comparable.
The Hearing Officer concluded that Detective Constable Buckle's action were not spontaneous, compulsive or isolated acts but rather protracted, premeditated, and deliberately deceptive misappropriations of public funds.
In summary, he concluded that given the seriousness of the allegations, the breach of the public trust, the absence of cooperation, the impact of the findings on Detective Constable Buckle's credibility and effectiveness, the need for general deterrence, the damage to the reputation of the force did not outweigh any mitigating factors and that the only appropriate penalty was immediate dismissal.
Appellant's Position:
Mr. May, on behalf of Detective Constable Buckle challenged the conclusions of the Hearing Officer.
He took issue with aspects of the Hearing Officer's findings of fact on all four allegations. He asserted that the Hearing Officer ignored conclusive or relevant evidence, misunderstood the evidence or drew erroneous conclusions from it. As well, he argued that the Hearing Officer's findings of credibility were self-evidently wrong, contained clear error and could not be reasonably accepted.
On the question of the motorcycle, Mr. May argued that the Hearing Officer ignored the Appellant's evidence that he intended the repay the OPP, failed to address the differences between statements that Ms. Gordon gave during the investigation and her evidence at the hearing and also placed an incorrect interpretation on Detective Constable Buckle's offer to return to uniform.
He suggested that the Hearing Officer ignored evidence about the common practice of officers to use their Service credit cards for personal purchases.
On the matter of the tires, Mr. May argued that the conclusions of the Hearing Officer were based on speculation. He pointed out that the Hearing Officer made certain assumptions about what would be reasonable tire wear after 48,000 kilometres driving.
He argued that there was no evidence presented on the state of the tires of the Maxima when it was surrendered by Detective Constable Buckle upon his suspension. He asserted that there was nothing inappropriate or inconsistent about Constable Buckle's use of cash for this transaction, and that the Hearing Officer ignored Constable Cecchini's evidence about assisting in the purchase of the new tires.
Mr. May acknowledged that Detective Constable Buckle provided a false receipt, However, given that he had purchased and paid for the tires Mr. May asserted that Detective Constable Buckle did not personally benefit from the transaction.
Mr. May argued that the Hearing Officer appears to have rejected Detective Constable Buckle's evidence about purchasing the windshield merely based on the officer's use of cash and his understanding of insurance coverage.
He asserted that, even if the officer's evidence was rejected, there was no clear and convincing evidence that the windshield was not replaced and that Detective Constable Buckle somehow profited from the transaction.
Finally, on the last count Mr. May argued that the Hearing Officer erred in not considering that Detective Constable Buckle's Detective Sergeant may have been mistaken in his recollection of the payment in question. Further, he suggested that even if you accepted the Detective Sergeant's evidence it had not been established that L did not receive the $200 in question.
He concluded by stating that at the worst Detective Constable Buckle's actions were only a breach of policy and not discreditable conduct.
Mr. May argued that the penalty imposed by the Hearing Officer was excessive, unwarranted and not in line with the evidence. He suggested that the Appellant should only have been sentenced for providing the two false receipts and given the passage of time and damage to his client that a proper penalty would be the imposition of a reprimand.
Mr. May stated that, even if we accept the Hearing Officer's factual conclusions, the penalty was still excessive. He pointed to Detective Constable Cecchini's penalty of demotion. He argued that the Hearing Officer unfairly or incorrectly characterized his client's decision not to plead guilty in the first instance, repay the OPP for the motorcycle repairs and his degree of cooperation with investigators.
In support of these arguments Mr. May drew our attention to Besco and Peel Regional Police Service (2001), 3 O.P.R. 1496 (O.C.C.P.S.), Ozon and Ontario Provincial Police (1998), 3 O.P.R. 1227 (O.C.C.P.S.), Quintieri and Toronto Police Service (2001), 3 O.P.R. 1509 (O.C.C.P.S.) and Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.).
Respondent's Position:
Ms. Kubursi, on behalf of the OPP argued that the Hearing Officer had proper evidentiary foundation for all four convictions.
She pointed out that it is the role and function of the Hearing Officer to assess the credibility of witnesses and that we should only interfere in such decisions in the most exceptional cases. On this point she drew our attention to Williams and OPP (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Cate and Peel Regional Police Service (2002), 3 O.P.R. 1604.
She asserted that the Hearing Officer was in the best position to make determinations of credibility and in so doing was entitled to make reasonable inferences. Norris v. Loranger (January 19, 1998, Ont. Bd. Of Inq.) and Allan and Hamilton-Wentworth Regional Police (1995), 2 O.P.R. 1001.
She then drew our attention to the portions of the evidence that she felt supported the Hearing Officer's findings. Ms. Kubursi noted that what was at issue was the misappropriation of in excess of $4,000 in several transactions over the course of many months. These activities were supported by the submission of false documents and misleading statements.
She argued that the only appropriate penalty in the circumstances was dismissal given that Detective Constable Buckle has been shown to be unfit to remain an employee and his usefulness to the OPP was annulled by his own conduct. Trumbley v. Metropolitan Toronto Police (1986), 1986 CanLII 2728 (ON HCJ), 55 O.R. (2d) 1 (Ont. C.A.) and Marsden and Metropolitan Toronto Police Service (1994), 2 O.P.R. 974 (O.C.C.P.S.).
Ms. Kubursi pointed out that the Commission has upheld penalties of dismissal for misappropriation from an employer. She suggested that such a penalty is called for in situations that cannot be characterized as 'singular, stupid acts of human frailty'. On these points she cited: Belisle and OPP (1985), 2 O.P.R. 634 (O.C.C.P.S.), Delano and Niagara Regional Police Service (1998), 3 O.P.R. 1297 (O.C.C.P.S), Parker and OPP (January 20, 2004, O.C.C.P.S.), Sack and OPP (1987), 2 O.P.R. 784 (O.C.C.P.S.) and Walker and Peel Regional Police Service (2000), 3 O.P.R. 1425 (O.C.C.P.S.).
Finally, Ms. Kubursi argued that there were substantial differences between the situation of Detective Constables Buckle and Cecchini with respect to the matter of penalty. She noted that Detective Constable Cecchini received the second most serious punishment available (demotion to 4th class constable). However, she pointed out that Detective Constable Cecchini had confessed his involvement, pled guilty at the earliest opportunity, was more junior in terms of experience and had not acted for personal gain.
For all these reasons, she suggested that both the findings and penalty of the Hearing Officer should be upheld.
Decision:
Section 2(1)(xi) of the Code makes it a disciplinary offence for a police officer to act "in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation" of a police service.
It is clear that the misappropriation of money by a police officer from his or her force would constitute conduct that was both prejudicial to discipline and likely to bring discredit to the reputation of any police service.
The burden of proof in police disciplinary hearings is "clear and convincing evidence". A hearing officer is required to receive exhibits, hear witnesses, receive submissions, make findings of credibility and fact and determine whether or not this burden has been met.
The assessment of credibility can be difficult. It is not simply a matter of attempting to gauge the appearance or sincerity of individual witnesses. This task has perhaps been best described by Mr. Justice O'Halloran in Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 (B.C.C.A.):
On reflection it becomes axiomatic that the appearance of telling the truth is but one of the elements that enters into the credibility of the evidence of a witness. Opportunity for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors is combined to produce what is called credibility ... in short, the real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
This is known as the "O'Halloran test":
Our role or function in an appeal on the record, such as this, is quite different. In Cate and Peel Regional Police Service the Commission explained at 1608:
Matters relating to the credibility of witnesses are clearly within the Hearing Officer's domain. In Carmichael and Ontario Provincial Police (1998), 3 O.P.R. 1232 (O.C.C.P.S.) at page 6 the Commission stated:
The applicable burden of proof in this case is that of "clear and convincing evidence". There must be weighty, cogent and reliable evidence upon which a trier of fact acting with caution can come to a reasonable conclusion that the officer is guilty of misconduct. We agree with the Appellant that the Commission can review whether there has been clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of witnesses. In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight.
Only in exceptional cases where the reasoning is evidently wrong, contains error, or cannot be reasonably accepted, will the Commission interfere with the conclusions made by the Hearing Officer.
Do such exceptional circumstances exist in this case?
Conviction
From a review of the transcript it is evident that the Hearing Officer had the responsibility of dealing with a number of complex factual disputes.
Some matters however, seem self-evident. OPP undercover officers, including Detective Constable Buckle, are issued with Service credit cards to be used for business purposes. The terms and conditions of the use of such cards are brought to the attention of officers at the time of issue.
Indeed, it would appear that Detective Constable Buckle was mailed his James E. Finocchio 'undercover' VISA card on January 22, 1998. The covering letter to Detective Constable Buckle from Ms. Gordon read in part:
TD Visa cards are NOT for personal use. They are to be used ONLY for the purchase of gas, oil, maintenance and repairs to specially plated Force vehicles. If the credit card is used inadvertently for personal purchases or payments it must be reported to the undersigned immediately. The cardholder shall attend any branch of the Toronto Dominion bank, present the TD Visa Card and make a payment for the total amount of the purchase. A receipt (copy will be accepted) must be forwarded to the Criminal Investigation Bureau. Any interest accrued due to late payments is the responsibility of the cardholder. Personal use of the TD Visa credit card is monitored on a continuous basis and reported to the cardholders supervisor. 3
It was this VISA card that was used to make the final two payments on Detective Constable Buckle's motorcycle when he picked it up in Kingston on February 23, 1998.
It also seems evident that OPP officers from time to time have used their Service VISA cards to pay for small and unanticipated personal expenses when traveling on business. This practice appears to have been tolerated. However, it is evident that there was a clear expectation that officers would make prompt repayment of any inadvertent expenditure. Detective Constable Buckle had done so in the past.
We agree however, with the Hearing Officer that such forbearance was never intended to establish a system of 'bridge financing' for employees. Certainly, it stretches credulity to suggest that this practice can be expanded to include the expenditure of thousands of dollars of public money by an employee without personal credit cards to fix his motorcycle so it could be sold for profit.
There is no question that Detective Constable Buckle, with the assistance of Detective Constable Cecchini, used OPP credit cards to get his motorcycle repaired. We agree with the Hearing Officer that his actions in this regard cannot be seen or characterized as an 'inadvertent' or 'one off' transaction.
In fact, the arrangements took place over the course of a number of months. It involved many phone calls and trips between North Bay, Trenton and Kingston. Payments were made in five separate transactions with the larger expenditures being two weeks apart. The explanation to the dealer (to hide the transaction from a spouse) was patently false. Three different OPP credit cards in three different names were used.
We agree with the Hearing Officer that this had the clear hallmarks of a deliberate attempt to disguise the nature and amount of the transaction.
Further, it is clear that these expenditures were noted by Ms. Gordon as part of her responsibilities for managing payments for over 700 VISA accounts. It is not disputed that she discussed this matter with Detective Constable Buckle.
Despite lengthy and very pointed cross-examination Ms. Gordon was firm in her assertion that Detective Constable Buckle had not been forthright and lead her to believe that these transactions were legitimate business related expenses and could be paid. That was precisely what she did.
Also worth noting, is that up to the point of his suspension in early April of 1998 Detective Constable Buckle had not attended at a branch of the Toronto Dominion Bank, presented his VISA cards and made full repayment. Seven years later he has still to do so.
Given the above, we believe that it was open to the Hearing Officer to accept the evidence of Ms. Gordon and reject that of Detective Constable Buckle. His conclusions with respect to credibility were clearly both reasonable and in harmony with the preponderance of probabilities.
On the other matters, it was also evident from testimony that the financial controls in place at the Unit were haphazard and, at best, lax. Indeed, the evidence was that many expense claims were signed blank and not properly witnessed.
Nevertheless, when Detective Constable Buckle submitted claims for reimbursement of monies that he says that he paid for tires and a windshield he was asked to provide receipts.
Detective Constable Buckle's evidence was that he either did not get receipts or could not find his receipts. Instead of contacting the places where he said he purchased these items and requesting replacements, Detective Constable Buckle acknowledged that he arranged for two different individuals to prepare forged receipts for both purchases.
He then submitted these receipts. Neither were in the name of the businesses or even for the same towns where he later asserted the purchases actually took place. Indeed, in the case of the windshield, Detective Constable Buckle could not clearly identify either the name or location of the business where he says the purchase took place.
The Hearing Officer found this extremely troubling. We do as well. Clearly, Detective Buckle's judgment, memory and ability to describe were lacking. As a result, to our mind the Hearing Officer was entitled to have serious doubts about Detective Constable Buckle's credibility on the key question of whether or not the purchases had actually taken place.
Further, we see nothing wrong with the Hearing Officer applying to Detective Constable Buckle's explanation his own experience with commonly understood matters. By this we refer to such factors as the need to obtain a receipt to ensure warranty or insurance coverage and tire wear.
On the latter point we note that the Hearing Officer was entitled to be skeptical about whether or not it made sense that 'new tires' would require replacement after 48,000 kilometres of mainly winter driving.
The only real evidence, apart from Detective Constable Buckle's, that either of these purchases had occurred, was the testimony of Detective Constable Cecchini. While the Hearing Officer did not specifically address this evidence, it is obvious that he did not accept Detective Constable Cecchini's testimony.
This does not surprise us given that Detective Constable Cecchini had assisted in arranging for the motorcycle repairs, used his Service VISA card to make one payment, helped obtain one false receipt and had no clear recollection of where the alleged tire replacement had occurred.
This leaves the matter of the requisition of cash to pay an informant. There is no dispute that the wording of the form that Detective Constable Buckle submitted to his Detective Sergeant stated that he was requisitioning $400 cash to give to Detective Constable Monteith. It is also not disputed that only $200 was handed over.
The Hearing Officer accepted the Detective Sergeant's evidence that this was not, as Detective Constable Buckle asserted, an agreed upon 'disguised transaction'. In light of this and the evidence as a whole, he rejected Detective Constable Buckle's explanation that he had given the unaccounted for $200 to L. In our view he was certainly entitled to do so.
In conclusion, we are satisfied that there was more than sufficient evidence before the Hearing Officer to support his essential factual conclusions. Seen in total and given the surrounding circumstances the evidence before the Hearing Officer disclosed a pattern of planned and deliberate discreditable conduct.
In our view, there is nothing in the Hearing Officer's reasoning that is so evidently wrong, in error or unreasonable that would cause us to interfere with his conclusions.
The four convictions stand.
Penalty
In Williams and OPP the Commission identified the three key elements to be taken into account when assessing penalty. These include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police force that would occur if the officer remained on the force.
There are other factors that can be relevant, either aggravating or mitigating the penalty depending on the misconduct in question. They include the officer's:
- employment history and experience;
- recognition of the seriousness of the transgression; and
- handicap or other relevant personal or family circumstances.
Other considerations could include, provocation, the need for general or specific deterrence, concerns arising from management's approach to the conduct in question and consistency.
There is no question that theft or misappropriation of money by a police officer is serious misconduct. As the Hearing Officer properly noted, in Walker and Peel Regional Police Service the Commission stated at page 1431:
There is no doubt that police officers, whether on or off duty, should not steal. Such behavior is serious discreditable conduct. Given the nature of their office, police officers must be held to a higher standard of conduct than members of the public. Over the course of a number of years Commission decisions have established the proposition that an appropriate penalty for a police officer who commits theft is dismissal (Spizziri and Ontario Provincial Police).
Recently, there have been two Commission decisions in which officers who had stolen and been dismissed had been reinstated. These are Guenette and Ottawa-Carleton Regional Police Service and Reilly and Brockville Police Service. These cases are not a departure from the principles established in cases such as Spizziri. Rather they stand for the proposition that in some situations significant mitigating factors can warrant the imposition of a penalty other than dismissal.
In previous cases significant mitigating factors have included lengthy exemplary service, diagnosed depression, acknowledgement of responsibility or evidence of strong support.
In the case at hand the Hearing Officer was of the view that such mitigating factors did not exist to the extent necessary to warrant a penalty other than dismissal.
At the time of the events in question Detective Constable Buckle was an officer with a history of 13 years good service. He was assigned to a position requiring the highest level of confidence and integrity.
He was working undercover, on the road a great deal and without much direct supervision. His duties included regular dealings with drugs, cash and individuals of questionable character.
Over the course of a number of months Detective Constable Buckle appears to have taken advantage of that trust by concocting a number of elaborate schemes to misappropriate for his own personal advantage more than $4,000 dollars of public money.
This is highly damaging to the reputation of both the Ontario Provincial Police and other officers working in similar circumstances. It is a clear breach of public trust.
Some of Constable Buckle's schemes were quite complex. Certainly, none can be described as 'singular or stupid acts of human frailty' as we have seen in cases involving impulse acts of shoplifting. See Sack and Ontario Provincial Police.
This conduct was not mitigated by evidence of handicap or inappropriate management approach. Further, as the Hearing Officer correctly pointed out there was no meaningful cooperation with investigators or acceptance of responsibility on the part of Constable Buckle. We do not see a willingness to acknowledge the creation of false receipts in light of the totality of the allegations to be significantly mitigating.
Also, there has been no restitution. Detective Constable Buckle's explanation that he has been waiting for what amounts to several years for clear instructions from his employer appears to have rung hollow with the Hearing Officer. It does with us as well.
Detective Constable Buckle has some evidence of support. However, there was nothing significant from fellow officers or former supervisors speaking to his future potential usefulness to the Service. Certainly, the evidence of support offered at the hearing did not rise to the level demonstrated in such cases as Guenette and Ottawa-Carleton Police Service (1998), 3 O.P.R. 1305 (O.C.C.P.S.).
This then leaves the issue of consistency. As the Commission has pointed out on many occasions consistency in disciplinary penalties is the hallmark of fairness.
In this case it is asserted that to dismiss Detective Constable Buckle would be unfair given the penalty imposed on Detective Constable Cecchini. The issue formed a significant portion of the Hearing Officer's decision with respect to penalty.
Detective Constable Cecchini was also charged with discreditable conduct for his part in the above noted transactions and a number of others. The total amounts of funds misappropriated by Detective Constable Cecchini's were very similar to that before the Hearing Officer in this case.
As noted earlier, the penalty imposed on Detective Constable Cecchini was demotion to 4th class constable for a period of three months, forfeiture of 12 hours time off, loss of management competency credit and financial counseling.
In his decision the Hearing Officer identified a number of differences in the situations of the two officers. These included:
- Detective Constable Cecchini came forward on April 14, 1998 and confessed his involvement in these matters. He immediately repaid the $200 charged to Motosport Plus on his OPP VISA. He fully cooperated with investigators.
- Detective Constable Cecchini pled guilty to the disciplinary allegations against him at the first possible opportunity on November 18, 1998.
- While the two officers had the same rank, Detective Constable Cecchini was junior to the Appellant in terms of service.
- The hearing officer in Detective Constable Cecchini's case concluded that his misappropriation of funds was not for personal gain.
We also note that the penalty in Detective Cecchini's case was put to his hearing officer by way of joint submission.
Given the above, it is seems evident that there were significant mitigating factors in the Cecchini case that were not before the Hearing Officer in Detective Constable Buckle's situation. As a result, we agree with the Hearing Officer that the two cases can be distinguished.
In light of the above, we are of the view that the penalty of immediate dismissal was certainly available to the Hearing Officer to impose. We see no grounds that would warrant us interfering with it.
According the appeal against penalty is also dismissed.
DATED AT TORONTO THIS 11th DAY OF MAY, 2005
Murray Chitra Chair, OCCPS
Peter Doucet Member, OCCPS
Bill Marra Member, OCCPS