Constable Robert Kelly v. Toronto Police Service, 2005 CanLII 81116

OCCPS #05-03

ONTARIO CIVILIAN POLICE COMMISSION

DATE: May 16, 2005

FILE: OCPC-05-003

CASE NAME: CONSTABLE ROBERT KELLY AND THE TORONTO POLICE SERVICE

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

BETWEEN:

Constable Robert Kelly

APPELLANT

-and-

Toronto Police Service

RESPONDENT

DECISION

Panel: Hyacinthe Miller, Member Murray W. Chitra, Chair Peter J. Doucet, Member

Hearing Date: April 20, 2005

Hearing Location:

Appearances: Beth Symes, Counsel for the Appellant Ken Jull, Counsel for the Appellant Robert Fredericks, Counsel for the Respondent

I. Introduction

1. This is an appeal from the penalty of resignation in seven days or dismissal, imposed on Constable Robert Kelly by Superintendent Anthony J. Warr (the "Hearing Officer") in a decision delivered on September 30, 2004.

2. The penalty followed Constable Kelly's plea of guilty to two counts of discreditable conduct contrary to section 2(1)(a)(xi) of the Schedule Code of Conduct of Ontario Regulation 123, R.R.O. 1998 (the "Code"). That conviction is not in question.

II. Background

3. Constable Robert Kelly is currently 38 years of age. He was appointed to the Toronto Police Service (the "Service") in May 1989 as a police cadet. He was subsequently promoted to fourth-class constable in September 1989 and to first-class constable in July 1992.

4. From 1994 until 1996, Constable Kelly was assigned to plainclothes work.

5. From 1996 until November 2001 when he was arrested, charged criminally and suspended from duties he served as an undercover officer with the North West Field Command Drug Squad (the "Drug Squad").

6. In this role, he was required to assume the persona of a mid-level drug dealer, to maintain false identities for varying periods of time and to behave in a consistent manner so as to develop relationships with his targets and gain their confidence.

7. After his assignment to the Drug Squad Constable Kelly experienced a number of traumatic personal events. Between May 2000 and September 2001 he initiated several conversations about a transfer out of the unit. However, no formal request for transfer was completed.

8. In mid 2001, one of Constable Kelly's colleagues on the Drug Squad introduced him to RC, a police agent. Constable Kelly subsequently developed a personal relationship with RC. This relationship included Constable Kelly placing bets with the agent based on "inside information" about predetermined race outcomes and sharing a percentage of the horse race winnings with the agent.

9. Constable Kelly and RC consumed small quantities of cocaine together. The cocaine was sometimes provided by Constable Kelly.

10. In October 2001, as a result of inside information provided by RC, Constable Kelly won $25,000. A dispute arose shortly afterwards about payment of the money owed and a falling out occurred. RC contacted the Service's Internal Affairs. Based on this information, Internal Affairs commenced 17 days of investigation and surveillance with RC's assistance.

11. On November 16, 2001, Constable Kelly was arrested in a sting operation and charged criminally. Following his arrest, Constable Kelly admitted to addiction to cocaine and entered into treatment.

12. The Service initiated disciplinary proceedings. On March 14, 2002 Constable Kelly was served with a Notice of Hearing alleging four charges of misconduct contrary to the Code. The Hearing Notice stated that a "penalty of dismissal or demotion may be imposed if the misconduct … is proved on clear and convincing evidence".

13. Disciplinary proceedings were stayed pending the outcome of the criminal trial.

14. On June 23, 2003 Constable Kelly appeared before Justice Ian Cowan and pled guilty to two counts of simple possession of cocaine.

15. The question of sentence was argued on January 23, 2004 on the basis of an agreed statement of facts. On March 4, 2004, Justice Cowan determined that, given Kelly's substantial effort at rehabilitation and his prior impeccable police record:

• sentence was suspended;
• he was placed on probation for a period of two years;
• he was required to keep the peace and be of good behavior;
• he was to report to a probation officer as directed;
• he was to perform 200 hours of community service; and,
• he was forbidden to associate directly or indirectly with RC.

16. Disciplinary proceedings against Constable Kelly were recommenced on June 15, 2004.

Disciplinary Hearing

17. At the beginning of the hearing two of the disciplinary charges against Constable Kelly were withdrawn. He pled guilty to the two remaining allegations. These were that he had committed discreditable conduct contrary to section 2(1)(a)(xi) of the Code. This section states that it is misconduct for an officer to act "in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force".

18. The particulars of the first charge that Constable Kelly pled guilty to were as follows:

Being a member of the Toronto Police Service attached to the Toronto Drug Squad West, you, on Friday, November 9, 2001, were working from 3:00 p.m. to 11:00 p.m., assigned to duties in plainclothes.

At approximately 3:14 p.m., you were with a citizen in a bar in Mississauga, Ontario where you ordered alcohol.

Investigation has revealed that you supplied this citizen approximately 3.15 grams of cocaine.

19. The 'citizen' in question was RC.

20. The particulars of the second charge that Constable Kelly pled guilty to were as follows:

Being a member of the Toronto Police Service attached to the Toronto Drug Squad West, you, between Monday, November 12, 2001 and Friday, November 16, 2001, while on duty, were assigned to duties in plainclothes.

During this time, you spoke to a citizen several times on a Toronto Police Service cellular telephone informing him that you were arranging to secure cocaine to be used by the two of you on Friday, November 16, 2001.

On Friday, November 16, 2001, while absent from duty due to being injured on duty, you arranged to meet the citizen at a bar in the Greater Toronto Area.

On one occasion, you attended your vehicle in the parking lot at this location and consumed cocaine with this citizen.

Investigation has revealed that you arranged for, gave to, and used cocaine, with this citizen.

Investigation further revealed that you had in your possession, marijuana that was located in your vehicle.

21. Again, the 'citizen' in this case, was RC.

22. Staff Inspector George Cowley, the designated prosecutor ("the prosecutor") for the Service, read into the record an agreed statement of facts. This statement highlighted Constable Kelly's employment history, personal difficulties, efforts to leave the Drug Squad, substance abuse and efforts at rehabilitation. He noted that Constable Kelly had recently completed a substance abuse assessment at the discretion of the Service. That assessment concluded that he was fit to return to work, well on his way to recovery and no longer using illegal substances.

23. The judgment of Justice Cowan on Constable Kelly's criminal conviction was entered into evidence. On the basis of facts presented, the Hearing Officer found clear and convincing evidence that Constable Kelly was guilty of two counts of discreditable conduct.

24. Following the finding of guilt, the prosecutor and Constable Kelly's counsel filed briefs containing reference letters and details of the Appellant's employment history. The prosecutor stated that given Constable Kelly's guilty plea to the criminal charges and his substantial efforts at rehabilitation the Service was of the view he should have the opportunity to resurrect his career.

25. A joint submission on penalty was tabled. Peter Brauti, counsel for Constable Kelly, noted that he, Service management and the prosecutor had spent considerable time developing this proposal to ensure "the proper balance of discipline, safeguards and public confidence were taken into account".

26. This "last chance" agreement contained 13 conditions designed to facilitate Constable Kelly once again becoming a productive member of the Service. They included requirements that:

• he was not to possess or use any substance included in Schedule I, II or III of the Controlled Drugs and Substances Act;
• he would be subject to random drug testing at management's discretion;
• at management's discretion, he would undergo periodic substance abuse and psychiatric assessments;
• he would continue treatment at Bellwood;
• Medical Advisory Services would receive all records relating to his substance abuse problem and treatment to date as well as complete access to his medical records to assess his fitness for work;
• demotion to fourth-class constable; following favourable evaluation, eligibility for reclassification to third-class after one year, then to second and first-class, subject to the same conditions; and
• he would not carry a firearm or perform paid duties; he would work shift, in uniform, in an inside position.

27. As well, it was agreed that if Constable Kelly refused to provide a sample or tested positive or if any conditions of the last chance agreement were breached, he would be prosecuted for insubordination and the Service would seek his dismissal.

28. The prosecutor and defence counsel provided clarification to the Hearing Officer with respect to some of the above-noted conditions. At the end of the hearing, the Hearing Officer indicated that he needed time to consider the submissions prior to making a determination on penalty.

29. Following adjournment on June 15, 2004, communications continued between the Hearing Officer, the prosecutor and defence counsel. In an e-mail dated June 18 the Hearing Officer sought additional information regarding the terms and conditions of the last chance agreement. On June 25 he expressed concern in an e-mail about the suggested disposition and requested submissions on how it would address the principles of public interest, general deterrence and the reputation of the Service.

30. The hearing reconvened on July 7, 2004 at which time the Hearing Officer indicated that, after reviewing the agreed statement of facts and the joint submission on penalty, he was not in the position to make a decision. On July 27, 2004, the prosecutor and defence presented additional submissions to the Hearing Officer.

Penalty Decision

31. On September 30, 2004 the Hearing Officer issued his decision. He indicated that he was not satisfied that the joint submission on penalty properly addressed significant areas of concern such as public interest, the reputation of the Service, general deterrence and the continued usefulness of Constable Kelly to the Service.

32. He indicated that he accepted medical testimony that Constable Kelly was "self medicating" when he turned to cocaine usage, but commented that with the exception of Constable Kelly's self-reporting, there was no other evidence prior to his arrest, of his substance abuse problem.

33. He accepted that Constable Kelly rehabilitated himself from his addiction, but noted that Constable Kelly must have been "cavorting with drug traffickers" to obtain the drugs he used and those found in his possession. Further, he stated that he was disturbed that Constable Kelly never revealed the source of the drugs in question. He saw this as detracting from any claim of remorse.

34. He commented that Constable Kelly's conscious decision to possess and consume an illegal narcotic put him in the position where his credibility would always be in question.

35. He indicated that, in his opinion, Constable Kelly's deliberate acts contributed to the handicap or disability of drug addiction. This, he suggested, reduced the need for the Toronto Police Service to accommodate him by creating a position.

36. He concluded that Constable Kelly must resign within seven days or be dismissed from the Service. He acknowledged that this decision may have an impact on the willingness of officers to plead guilty to offences in the future.

Appellant's Position

37. Ms. Symes and Mr. Jull, on behalf of Constable Kelly challenged the conclusions of the Hearing Officer. It was their position that the Hearing Officer erred in refusing to accept the joint submission. They submitted that the joint submission was consistent with the relevant sentencing principles, was appropriate and should be reinstated.

38. Further, they argued that the Hearing Officer's decision:

• failed to give proper consideration to several relevant factors;
• relied on conclusions that were not supported or were refuted by evidence;
• was inconsistent with prior penalty decisions; and,
• was harsh and excessive

39. In particular, both Ms. Symes and Mr. Jull suggested that the Hearing Officer failed to give adequate consideration to the employer's duty to accommodate an officer with a disability. They noted that sections 5(1) and 17 of the Ontario Human Rights Code R.S.O. 1990, c. H.19 as amended have been interpreted to include drug or alcohol addiction as a disability that employers must accommodate to the point of undue hardship.

40. They pointed out that evidence presented to the Hearing Officer by several medical experts and addiction treatment specialists confirmed Constable Kelly's addiction to cocaine prior to his committing the misconduct to which he pled guilty. They also noted that the evidence also showed that Constable Kelly had disclosed his addiction and taken all reasonable steps at rehabilitation. They argued that the last chance agreement proposed by the prosecutor and defence was both a necessary and proper accommodation plan.

41. With respect to the Hearing Officer's findings concerning the origins and genuineness of Constable Kelly's addiction, the Appellant pointed out that they were speculative and in direct contradiction to the evidence presented. It was argued that this contributed to the Hearing Officer's incorrect conclusion that the Service's duty to accommodate Constable Kelly was somehow lessened.

42. Ms. Symes and Mr. Jull noted that the Hearing Officer did not hear oral testimony. As a consequence they suggested that his findings relating to endangerment of fellow officers, the source of Constable Kelly's drugs and the impact of the Service creating a new position for Constable Kelly had no proper factual foundation. The Appellant submitted these findings, made in error, and central to the Hearing Officer's reasons must be set aside.

43. It was also argued that the Hearing Officer's characterization of possession of narcotics as a breach of trust and an offence of dishonesty that would impact on Constable Kelly's future credibility as a witness constituted an error of law.

44. Further, it was noted that the Hearing Officer was asked twice whether he had additional questions about the submission on penalty. It was argued that by not advising counsel of the specifics of his concerns about the source of cocaine and the potential adverse consequences of not disclosing the source of narcotics he used, the Hearing Officer failed to ensure Constable Kelly's rights to procedural fairness.

45. It was also argued that the finding of the Hearing Officer that there is no position for Constable Kelly in the Service is contrary to the evidence presented in the joint submission that he would be placed as a booking officer. This position was identified by the employer as one in which the Appellant could be accommodated.

46. Finally, it was suggested that by concluding that Constable Kelly should be dismissed, the Hearing Officer failed to consider the intent of the suspended sentence imposed by Justice Cowan, during Constable Kelly's criminal trial.

47. In support of these arguments our attention was drawn to 27 cases by Ms. Symes and Mr. Jull.

Respondent's Position

48. Mr. Fredericks, on behalf of the Respondent, took the position that we should accord significant weight to the Hearing Officer's decision given that he both heard and carefully analyzed the evidence.

49. Further, he pointed out that we have no jurisdiction to interfere with the decision of a hearing officer absent a manifest error in principle, an unreasonable or unjust penalty, or unless all relevant factors have not been fairly or impartially considered. In the case at hand, he argued that the conclusions of the Hearing Officer had a clear basis in fact given the evidence placed before him and taking into account his experience and judgment as a senior police officer.

50. Mr. Fredericks acknowledged that the prosecutor for the Service presented a joint submission on penalty. However, he noted that the Hearing Officer was entitled to reach a different conclusion.

51. The Respondent contended that the Hearing Officer's decision contained a lengthy and comprehensive analysis of the relevant sentencing principles including:

• the very serious nature of Constable Kelly's misconduct;
• the sworn duty of a police officer to identify drug traffickers and the lack of evidence that Constable Kelly had revealed the source of the drugs in question;
• the breach of Constable Kelly's duty to protect society from the criminal activity he had blatantly committed;
• the impact of Constable Kelly's misconduct on his credibility as a witness and resulting usefulness as a police officer;
• the positive impact of Constable Kelly's rehabilitation did not outweigh the negative impact of other factors such as seriousness of misconduct, damage to the reputation of the Service and public trust;
• the fact that Constable Kelly's exemplary record was outweighed by the voluntary nature of his initial cocaine consumption and the seriousness of the misconduct;
• his conclusion that traumatic life events were not an excuse for breaking the law nor were they sufficiently important to warrant a reduction in the entirely reasonable penalty of dismissal; and
• the lack of impact of the addiction on Constable Kelly's work performance before November 2001 and the failure to disclose until after his arrest.

52. On the matter of duty to accommodate, counsel for the Respondent submitted that the Appellant has mischaracterized the role of addiction in disciplinary hearings.

53. Mr. Fredericks argued that the disability of drug addiction cannot be used as a shield against the consequences of misconduct. He noted that the purpose of a penalty of dismissal is to rid an employer of the burden of an employee who has, by their actions, demonstrated they are not fit to remain employed. He suggested that the issue of public safety must take precedence over any sympathy one might have for a disabled employee facing dismissal.

54. He requested that we uphold this penalty. In support of these arguments Mr. Fredericks drew our attention to 13 cases and other reference material.

Decision

55. In Ontario, the Police Services Act R.S.O. 1990, c. P.15 as amended ("the Act") regulates the conduct of police officers. It sets out the procedures to be followed in disciplinary matters.

56. In situations where a hearing is required, section 64(8) of the Act requires that the chief of police appoint a prosecutor to present evidence and represent the interests of the Service. In the case before us, Staff Inspector Cowley was designated prosecutor.

57. As well, section 76 of the Act authorizes a chief of police to designate an individual to serve as hearing officer. A hearing officer is to receive evidence, determine whether or not misconduct or unsatisfactory work performance is established and where necessary impose penalty. In the case before us, Superintendent Warr was designated hearing officer.

58. It is not uncommon during disciplinary proceedings for designated prosecutors and counsel for an officer to make joint submissions. A hearing officer is not obliged to accept such submissions. However, when a hearing officer elects not to do so they must ensure that principles of fairness are respected and provide clear reasons that are based on a sound factual foundation and take into account the relevant sentencing factors.

59. The factors to be taken into account by a hearing officer when imposing penalty are well established. In Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) this Commission identified three key elements to be considered. 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.

60. As was noted in Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.) there are also other considerations to be assessed in light of the particular conduct in question. These include the officer's:

• employment history and experience;
• recognition of the seriousness of the transgression; and
• handicap or other relevant personal consideration.

61. Other relevant factors can include management approach and the need for general or specific deterrence.

62. In addition, when imposing penalty, it is important that a hearing officer take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency. Schofield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.)

63. Our function on appeal is not to second-guess the hearing officer's decision, even if we might have imposed a different disposition. Rather, our role is to assess whether or not the hearing officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is manifest error in principle or the proper considerations are ignored then we may vary a disposition. Quintieri and Toronto Police Service (2001), 3 O.P.R. 1509 (O.C.C.P.S.) This is not lightly done. Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.)

64. How do these considerations apply to the facts before us?

65. The Hearing Officer in this case was presented with a clearly articulated joint submission on penalty that was supported by the prosecutor, defence counsel and endorsed by the Service. It is clear from the record that this joint submission caused him difficulty.

66. Following the adjournment of the hearing on June 15, 2004 the Hearing Officer asked questions with respect to certain aspects of the proposed conditions. He subsequently requested further submissions on the subjects of general deterrence, the public interest and the impact of Constable Kelly's conduct on the reputation of the Service.

67. Unfortunately, the Hearing Officer was somewhat oblique in expressing the nature of his concerns and this put the parties in the awkward position of having to make certain assumptions about how to best respond. To our mind, this raises a significant fairness issue.

68. Leaving this aside, having rejected the joint submission without requesting any oral evidence, the Hearing Officer was then required to craft a penalty decision based solely on the written facts before him. As noted earlier, these consisted of an agreed statement of facts, the judgment of Justice Cowan, letters of support, medical records and Constable Kelly's service record.

69. This undisputed evidence was clear and in large measure acknowledged by the Hearing Officer. It disclosed that Constable Kelly was an experienced police officer with 16 years of service. Many of those years were spent working undercover for mid-level cocaine projects. His employment was described by Justice Cowan as being "an impeccable record … [of] heroic police service".

70. This job was difficult, dangerous and stressful. The average workweek was approximately 70 hours. Constable Kelly's partner was shot in his presence and he personally arrested one of the offenders. In another incident Constable Kelly was chasing a man who pointed a shotgun at him. That man was subsequently charged with attempted murder.

71. At some point Constable Kelly began to experience emotional stress and started to associate with his undercover persona. This was exacerbated by a number of personal problems including the death of Constable Kelly's father after a lingering illness. His common-law wife of nine years left him. He became depressed.

72. Constable Kelly spoke to his supervisors about a transfer to another less stressful assignment. He was seen as a valuable operative who would be difficult to replace. His requests were never formalized and did not come to pass.

73. Constable Kelly began to deal with his stress, anxiety and depression by "self-medicating" with illicit substances that, given the nature of his work, were readily available to him. According to medical evidence his use of cocaine turned into an addiction. Constable Kelly's addiction was accepted as a matter of fact by Justice Cowan.

74. Such a condition constitutes a disability under the provisions of Ontario's Human Rights Code. There is a legal duty on employers to take efforts to accommodate employees with such disabilities. At the time of Constable Kelly's arrest and conviction, the Service did not have a program in place to assist undercover officers with job-related stress and substance abuse.

75. As a result of his conduct, Constable Kelly found himself in a situation where he was arrested. Upon this arrest Constable Kelly admitted his problem, sought and undertook intensive treatment. He entered a 21-day inpatient program at the Hamilton Services Addiction Unit. He successfully completed this program and entered aftercare at the Bellwood Health Services Unit. He subsequently accepted a volunteer position at Bellwood to help other persons with substance abuse problems.

76. In total Constable Kelly attended between 350 to 400 hours of counseling, His psychologist, Dr. Susan Williams concluded that he had learned to cope with his problems and "had a very low risk of relapsing as he was committed to change and had replaced his negative conditions with positive ones and had significant remorse".

77. The Service required Constable Kelly to attend a substance abuse assessment. That assessment concluded that Constable Kelly was fit to return to work, was well on his road to recovery and was not using illegal substances.

78. Constable Kelly pled guilty and accepted responsibility for the criminal charges against him. He was given a suspended sentence, placed on probation for two years and ordered to perform community service. He also pled guilty to two disciplinary allegations.

79. In his decision, the Hearing Officer identified the relevant sentencing factors. He properly assessed the conduct in question as being serious, contrary to the public interest, requiring both general and specific deterrence, and likely to adversely affect the reputation of the Service. The Hearing Officer acknowledged Constable Kelly's recognition of the seriousness of his misconduct.

80. The Hearing Officer noted Constable Kelly's fine employment record, but then went on to state that on occasion, even the most exemplary conduct cannot excuse certain behavior. As a general statement of principle this is correct. We certainly acknowledge that there will be many cases where absent substantial mitigating circumstances a penalty of termination is warranted.

81. Addiction as a handicap can be a significant mitigating factor. It may not excuse inappropriate conduct, but can certainly explain it.

82. The Hearing Officer accepted that the series of personal challenges experienced by Constable Kelly between 1997 and 2001 were mitigating factors in Constable Kelly's decline, but determined they were no excuse for his choice to break the law and consume illegal drugs. We cannot disagree with that conclusion.

83. However, where an addiction is in some fashion work related, is acknowledged, treated, and is unlikely to reoccur, these are elements that bear significantly on the broader question of rehabilitation. To our mind the Hearing Officer failed to properly take this into account.

84. In particular, we find that the Hearing Officer's analysis with respect to the question of Constable Kelly's handicap to be particularly unhelpful. The Hearing Officer noted that there was no evidence before him other than Constable Kelly's self-reporting of his substance abuse problem prior to his arrest. He pointed out that one of Constable Kelly's supervisors did not note any signs of impairment on the part of the Appellant. He also indicated that given Constable Kelly's choice not to use drugs on November 9, 2001 (because he was working) this suggested that "the addiction was not too powerful, and he was able to control his usage."

85. These comments are speculative, unsupported by the evidence and unfairly diminish the clear and undisputed evidence of Constable Kelly's addiction and handicap. They go beyond what would be acceptable observations based on common general knowledge or any specialized understanding of police practices inherent in the Hearing Officer's senior rank.

86. Along the same line, the Hearing Officer suggested that prior to becoming addicted Constable Kelly must have obtained his drugs by illegal means. He then noted that in order to obtain these drugs he "must have at times been cavorting with drug traffickers under the nose of fellow officers" or "skimming or seizing them from seized exhibits". He faults Constable Kelly for not pursuing a transfer more vigorously, suggesting that perhaps Constable Kelly did not have a genuine desire to leave the Drug Squad.

87. He expressed disappointment that Constable Kelly had not identified the source of his illegal drugs and as such did not appear to have been completely remorseful. The Hearing Officer then concluded that "Although … [Constable Kelly] purports to suffer what can be referred to as a handicap or disability – drug addiction, his own deliberate acts that amount to criminal behavior are what lead to his addiction. Therefore, in my opinion, the need for the employer to accommodate this officer is lessened." This latter conclusion is clearly wrong.

88. Again, the other observations are speculative or unsupported by the evidence. There was no evidence before the Hearing Officer about any drug use by Constable Kelly prior to his addiction, when precisely he may have become addicted and how he obtained the drugs in question. None of these matters was contained in the allegations before the Hearing Officer. None was relevant to the essential mitigating nature of a handicap and the broader obligation of an employer to accommodate such an employee to the point of undue hardship.

89. The addiction in question was not 'purported'. It was established by uncontested medical evidence that was accepted by Justice Cowan in criminal proceedings.

90. Further in our view, if these concerns were of essential importance to the Hearing Officer, he should have explicitly requested that information or directed a full penalty hearing. At the July 7, 2004 proceeding, the prosecutor stated for the record that tests showed the cocaine in Constable Kelly's possession at the time of his arrest did not come from police seized property. The Hearing Officer did not pursue this question further.

91. There was no evidence before the Hearing Officer that Constable Kelly was ever asked about the source of his drugs and did not respond, or that he was given a lawful order to disclose this information and refused. Constable Kelly should not have been castigated for non-disclosure nor should this have had any weight in the Hearing Officer's penalty decision. More to the point, speculation about this matter cannot be used to diminish clear evidence on the record of Constable Kelly's remorse and regret.

92. In assessing the question of management approach as a possible mitigating factor, the Hearing Officer simply noted that the Service does not tolerate corrupt practice. With respect, this completely ignores the obvious fact that the approach of Service management to Constable Kelly's situation was to take part in developing the terms and conditions of the last chance agreement.

93. The Hearing Officer also took issue with the capacity of the Service to actually retain and accommodate Constable Kelly. This seems to be based on a concern that if he were to remain a police officer this would undermine both police and public safety and future drug enforcement efforts.

94. In this particular case, it would appear that the employer was prepared to acknowledge Constable Kelly's handicap, support him in overcoming his addiction, recognize that his potential as a good employee was not exhausted and facilitate his rehabilitation. The employer agreed that Constable Kelly could continue his employment with the necessary safeguards in place to ensure that he was monitored, that he had opportunity to perform his duties and work towards promotion.

95. This approach certainly seems appropriate in light of the fact that Constable Kelly developed his addiction to cocaine after being assigned by his employer to work for five years in the difficult and dangerous role of an undercover drug operative.

96. Finally, the Hearing Officer received 26 letters of support on behalf of Constable Kelly. A number of these were from Constable Kelly's former and current fellow officers and supervisors who spoke well of his character, investigative skills, work ethic and professionalism and indicated a willingness to work with him again.

97. The Hearing Officer also commented on the constraints Constable Kelly could face in performing the duties of a police officer, given his criminal conviction. He expressed concern about the difficulty that Constable Kelly might confront if he were obliged to testify as a witness in future criminal proceedings. We do not disagree. However, the simple fact that a police officer may have been found guilty or convicted of a criminal offence does not automatically mean that that individual cannot continue to serve as a police officer. The seriousness of each transgression must be weighed and assessed against the factors identified above.

98. Section 42(1) (e) of the Act states that one of the essential duties of all police officers is "laying charges and participating in prosecutions". In order to effectively fulfill this duty an officer will be required from time to time to testify in criminal court. The acceptance by any court of an officer's testimony will in large measure turn on the court's assessment of that officer's credibility.

99. The credibility of a witness is subject to challenge on cross-examination.

100. Section 12 of the Canada Evidence Act R.S.C. 1985, Chap. C-5 as amended states:

12(1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding an offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.

101. This applies to criminal proceedings.

102. Such information may be used to impeach the trustworthiness of a witness. However, the probative value will vary not only with the type of conviction, but also the proximity in time to when the witness gave evidence.

103. The Hearing Officer concluded this "definitely would affect his usefulness to this service." There is certainly some truth to this statement. While the conditions agreed to by the prosecutor and the defence provided for Constable Kelly being assigned to an inside position without his firearm, there could still be the possibility that he could be required to appear in court.

104. Constable Kelly's credibility may well be subject to challenge. That being said, we would not, given the facts of this case, go as far as the Hearing Officer when he stated that Constable Kelly's "credibility as a witness is forever compromised and his usefulness as a police officer will always be impaired". There is little or no doubt that police officers who have been convicted of a criminal offence must work very hard to re-establish trust and prove their worth to the organization.

105. However, we do not agree that Constable Kelly's usefulness to the Toronto Police Service has been expunged or that he would be forever prevented from performing the full duties of his position as a police officer.

106. As this Commission has stated in previous decisions any penalty must be tailored to both punish and deter while not causing undue or excessive hardship and yet be sufficient to demonstrate that any reoccurrence will not be tolerated. This is the balancing act that must be achieved. Although it is important that the penalty must be consistent with other similar cases we recognize that each situation is different and as a result there will be a spectrum of penalties.

107. It is clear that Constable Kelly has been an exemplary officer whose misconduct was clearly out of character and, as confirmed by medical experts, his actions were no doubt contributed to by a series of distressing personal and work-related events. Considering all of the facts of the case and in light of the accommodation plan contained in the joint submission, we consider the penalty of dismissal imposed by the Hearing Officer to be unduly harsh and punitive.

108. In our view, his decision was based in part on a foundation that was not supported by the evidence and was, in part, speculative. Consequently, the Hearing Officer's assessment of handicap and the officer's potential for rehabilitation is flawed. As a result, we do not believe that the Hearing Officer was justified in departing from the joint submission and erred in so doing.

109. We do not excuse Constable Kelly's actions. They were reprehensible. However, he appears to have done everything in his power to make things right. He pled guilty to both his criminal and disciplinary charges. He has accepted responsibility for his actions and taken meaningful steps to address his problems. There is undisputed medical evidence that there is low risk of relapse. His potential for rehabilitation has been recognized by his employer. Accommodation without undue hardship is possible.

110. He agreed to accept demotion to the lowest possible rank of fourth-class constable, work as a booking officer without his firearm and be subject to rigorous work and medical monitoring conditions. Constable Kelly expressed remorse for his misconduct. He agreed to undergo a severe financial penalty and, by his continued presence in the Service, he will serve as a constant reminder of the professional consequences of a conviction for serious misconduct.

111. In light of the above, the penalty of dismissal cannot stand. The penalty is varied to reflect what was proposed in the joint submission, specifically:

112. Constable Kelly will not possess or use any substance included in Schedule I, II or III of the Controlled Drugs and Substances Act. However, he will be permitted to handle these substances as required in the performance of his duties.

113. Constable Kelly will be subject to random drug testing for illegal substances at management's sole discretion and for as long as he is employed by the Toronto Police Service.

114. Refusal to provide a sample for drug testing or testing positive for a substance included in Schedule I, II or III of the Controlled Drugs and Substances Act will result in a prosecution for insubordination under the Police Services Act in which the Toronto Police Service will seek his dismissal.

115. Constable Kelly will be required to undergo substance abuse assessments and psychiatric assessments at management's discretion.

116. Constable Kelly will continue his treatment at Bellwood Health Services until health professionals advise he no longer needs to attend.

117. Constable Kelly will provide Medical Advisory Services of the Toronto Police Service with all medical records relating to his substance abuse problem and treatment to date.

118. Constable Kelly will provide Medical Advisory Services with complete access to all of his medical records for as long as he is employed with the Toronto Police Service.

119. Constable Kelly is to be demoted to fourth-class constable for the period of one year. Upon receiving favourable performance appraisals he will be eligible for reclassification to third-class constable. Upon receiving favourable performance evaluations he will be eligible to reclassification to second-class constable then to first-class constable, subject to the same conditions.

120. Constable Kelly will not carry a firearm.

121. Constable Kelly will work in uniform and be placed on shift for an inside job within the Service.

122. Conditions 9 and 10 do not preclude Constable Kelly from progressing to a position that requires outside work, after a period of one year has elapsed. Should he progress to a position requiring outside work, conditions 2 and 3 will be removed, provided he meets all other qualifications required of a police officer.

123. Constable Kelly will not perform paid duties.

124. Condition 12 will be removed if Constable Kelly is permitted to carry a firearm.

125. In the event that Constable Kelly breaches any of the above conditions, he will be prosecuted for insubordination under the Police Services Act and the Toronto Police Service will seek his dismissal.

DATED THIS 16^th^ DAY OF MAY 2005

Murray Chitra Peter J. Doucet Hyacinthe Miller

Chair Member Member