Constable Christian Brudlo v. Toronto Police Service, 2005 CanLII 81117

ONTARIO CIVILIAN POLICE COMMISSION

DATE:

November 23, 2005

FILE:

OCPC-05-009

CASE NAME:

CONSTABLE CHRISTIAN BRUDLO AND THE TORONTO POLICE SERVICE

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

BETWEEN:

Constable Christian Brudlo

APPELLANT

-and-

Toronto Police Service

RESPONDENT

DECISION

Panel: David Edwards, Member Murray W. Chitra, Chair Tammy Landau, Member

Hearing Date: Wednesday, October 19, 2005

Hearing Location:

Appearances:

Gary R. Clewley, Counsel for the Appellant

Robert Fredericks, Counsel for the Respondent

I. Introduction

1. This is an appeal from a penalty of dismissal (in the absence of resignation within seven days) imposed on Constable Christian Brudlo by Superintendent Neale T. Tweedy (the “Hearing Officer”) on February 9, 2005.

2. The penalty in question followed a finding of guilt on October 13, 2004 for a single count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at Regulation 123, R.R.O. 1998 (the “Code”).

3. Constable Brudlo also appeals this finding of guilt. This challenge is focused on a decision of the Hearing Officer to deny a request by Constable Brudlo for an adjournment prior to the commencement of the disciplinary proceeding on September 14, 2004.

II. Background

4. The facts giving rise to this appeal occurred in the spring and summer of 2003. At that time Christian Brudlo was a first-class constable. As a result of a complaint, Constable Brudlo was charged with the disciplinary offence of discreditable conduct on December 23, 2003.

5. The particulars of the allegations against Constable Brudlo were as follows:

Being a member of the Toronto Police Service, attached to the North Collision Reporting Centre, you between April and July, 2003, while on duty did have inappropriate contact with a civilian employee.

Specifically, you initiated conversations of a sexual nature stating, “You know, a lot of people say I’m good at sixty-niners”. At various times you would touch the victim in her mid-section without consent.

In so doing, your actions were such that you were acting in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Toronto Police Service.

6. A copy of a Notice of Hearing was served on Constable Brudlo’s counsel on January 7, 2004.

7. That Notice of Hearing directed Constable Brudlo to appear before the Hearing Officer on January 30, 2004. As well, it contained the following statement: “Take notice pursuant to Section 68(6) of the Police Services Act, 1990, as amended, the penalty of dismissal or demotion may be imposed if the misconduct or the unsatisfactory work performance with which you are charged is proved on clear and convincing evidence.”

The Hearing

8. Constable Brudlo failed to appear before the Hearing Officer on January 30, 2004. Proceedings were adjourned to February 17, 2004. On that date, Constable Brudlo booked off sick. The matter was adjourned to March 10, 2004.

9. Constable Brudlo appeared on March 10, 2004 and the proceedings were further adjourned to April 21, 2004. On that date, Constable Brudlo once again, failed to attend. Trial was set to commence on June 15, 2004.

10. On June 15^th Constable Brudlo booked off sick and failed to attend. The trial was rescheduled for July 15, 2004. Constable Brudlo failed to appear on that date and the trial was once again rescheduled to September 14, 2004.

The Adjournment Request

11. Constable Brudlo attended on that date. At the commencement of the proceedings, his counsel, Mr. Clewley, requested an adjournment to provide additional time to prepare. Constable Brudlo testified in support of this application.

12. In his evidence Constable Brudlo indicated that because of medical and emotional problems he had been taking various medications that affected his ability to concentrate, prepare for trial and instruct counsel.

13. He stated that he had not had an opportunity to review the disclosure materials that had been provided to his counsel a number of months earlier. He testified that he had been off duty for much of the summer living in Grand Bend. He stated that during this time he had been preoccupied with the care of his children and custody proceedings.

14. He indicated that he suffered from attention deficit disorder and that made it difficult for him to “digest” the disclosure materials on the eve of the hearing. He indicated that he had only found out the day before that the prosecution would be seeking his termination.

15. In cross-examination Constable Brudlo acknowledged that:

• he had been aware of the trial date for a number of months;

• he had worked twelve shifts in Toronto in July and August, but forgot to contact his counsel while he was in the city;

• during the summer his children normally went to bed between 8:00 and 9:00 p.m.;

• he had driven to the hearing in Toronto; and

• he described his condition that morning as “pretty normal” and he was experiencing a “better day”;

16. No medical evidence was submitted in support of the application.

17. The Hearing Officer dismissed the request for an adjournment with brief reasons. Following a short recess the disciplinary hearing commenced.

The Evidence

18. A total of four witnesses, including Constable Brudlo, testified. A number of exhibits, including photographs, drawings and statements were received.

19. The evidence disclosed that Christian Brudlo joined the Toronto Police Service (the “Service”) in September of 1983 as a cadet. In May of 1986 he was appointed as a fourth-class constable. In the summer of 2002 Constable Brudlo was assigned to uniform duties at the North Collision Reporting Centre at 113 Toryork Road.

20. The Centre is dedicated to the processing of automobile accident reports and insurance claims. It is staffed by members of the Service, Ontario Provincial Police and employees of a private company called North York Accident Support Services Limited.

21. M[1] started working at the Centre in January of 2003. She was employed by North York Accident Support Services Limited to assist in the processing of automobile insurance claims.

22. M is a smoker. Staff at the Centre are permitted to take their “smoke breaks” in a garage attached to the facility. To get to the garage, M passed by Constable Brudlo’s work area. Constable Brudlo is not a smoker. However, he often joined

23. M and other smokers when they took their breaks.

24. M testified that three months after she started working Constable Brudlo’s conduct towards her changed. At this time she was having difficulties in her relationship with her fiancé.

25. She stated that when Constable Brudlo found her alone in the garage he would make unwanted comments of a sexual nature. M testified that Constable Brudlo bragged about his sexual abilities, asked whether or not she liked to engage in mutual oral sex, suggested that she leave her boyfriend for him and talked about how well he would treat her. This included bringing her breakfast in bed.

26. M also indicated that on one or two occasions Constable Brudlo touched her on the upper thigh while she was sitting on a chair in the garage. She further testified that when she tried to leave the garage Constable Brudlo would follow her and rub her back, touch her from behind in the area of her ribcage, or try to hug her.

27. M testified that she first attempted to ignore Constable Brudlo and send him a “clear signal” that she was not interested. She stated that despite her efforts Constable Brudlo’s behaviour persisted. She testified that she was extremely uncomfortable.

28. As a result, she spoke to Constable Angelo Causi about the situation on July 3, 2003. Constable Causi also worked at the Centre. He reported her concerns to Sergeant Frederick Blacker on the morning of July 7^th. The Sergeant talked to M that same morning and an investigation was initiated.

29. Both Constable Causi and Sergeant Blacker testified concerning their conversations with M and their subsequent actions.

30. In his evidence, Constable Brudlo denied having made any comments of a sexual nature to M or touching her inappropriately. He acknowledged that he took his breaks in the garage and occasionally had conversations with M about different subjects including current and former relationships.

31. Constable Brudlo testified that M once suggested to him that if things did not work out with her fiancé then perhaps the two of them could go “for coffee”. Constable Brudlo stated that he “basically” told her that she was not his “type”.

32. Constable Brudlo was asked why M might “make up stories like this?” He stated that the only thing he could “come up with” was his “crack” about her not being his “type”. On this point, he noted “Women can be strange creatures. I found that out a few times.” [2]

33. He also agreed with suggestions that both he and M were “large” people and he might have “brushed” against her when passing in the narrow hallway leading to and from the garage.

34. At the completion of the testimony, the Hearing Officer received submissions from both Mr. Clewley and the Prosecutor. The Hearing Officer delivered his judgment on October 13, 2004.

The Conviction

35. In his decision, the Hearing Officer provided a detailed summary of the evidence presented. He identified the case before him as essentially “a contest of credibility”.

36. The Hearing Officer described the manner in which M testified. He characterized her evidence as “unrehearsed”, without “flamboyance or exaggeration” and delivered in a manner consistent with that outlined by Constable Causi. He observed that M had nothing to gain by making a complaint against Constable Brudlo and that she had testified that she did not want him to get in trouble with his employer, but rather to “know what he did was wrong”.

37. The Hearing Officer concluded that M’s testimony was not damaged in cross-examination and that any discrepancies in her evidence were minor and not problematic when put “in the proper context”.

38. The Hearing Officer acknowledged that Constable Brudlo testified under the influence of medication. He observed that Constable Brudlo’s evidence concerning the events in question was presented in a more “articulate” manner than with respect to the request for an adjournment. He described Constable Brudlo as having “no difficulty expressing himself.”

39. The Hearing Officer stated that he did not find it believable that M would have expressed a romantic interest in Constable Brudlo given the fact that she was in a committed relationship at the time. He found that given the layout of the office that Constable Brudlo’s explanation that he may have “brushed” against M in the hallway was “highly unlikely”.

40. The Hearing Officer indicated that he was greatly troubled by Constable Brudlo’s statement that “Women can be strange creatures”. He suggested that it was “most revealing” of Constable Brudlo’s character and demonstrated the “lack of gender respect” that could give rise to a sense of entitlement to speak to a female colleague about intimate sexual matters.

41. The Hearing Officer concluded that given the totality of the evidence, and his assessment of credibility that he was satisfied that the allegations against Constable Brudlo had been established to the required standard.

The Penalty

42. On December 9, 2004 the Hearing Officer received both evidence and submissions with respect to penalty.

43. Sergeant Robert States testified concerning Constable Brudlo’s work performance at the Central Alternative Response Unit for the period between July of 2003 and September of 2004. Sergeant States’ evidence was that Constable Brudlo’s work was “satisfactory” and “of standard” and that he worked well with colleagues.

44. The Hearing Officer received Constable Brudlo’s Record of Service. It noted twelve complimentary reports and twenty-four letters of appreciation received over the course of his seventeen-year career.

45. That Record however, reflected a prior disciplinary history. On December 14, 1990 Constable Brudlo was found guilty of the criminal offence of committing an indecent act contrary to section 173(1)(b) of the Criminal Code. This related to Constable Brudlo having exposed his penis on three occasions to two female neighbours.

46. Constable Brudlo received an absolute discharge for this conduct in criminal court. In subsequent disciplinary proceedings concluded on August 20, 1990 Constable Brudlo was terminated (unless he resigned within seven days) by Superintendent Duncan Wilson. On appeal, the Toronto Police Services Board altered this penalty to a reduction in rank to fourth-class constable. This was the maximum demotion possible.

47. More recently, on December 4, 2002 Constable Brudlo pled guilty to the criminal offence of assault. This related to an incident in June of 2002 where Constable Brudlo struck his common-law wife in the face with a closed fist. For this criminal conduct, Constable Brudlo received a conditional discharge and was placed on probation for twelve months.

48. As a result of these findings Constable Brudlo faced further disciplinary proceedings. On June 10, 2003 he appeared before Superintendent A. R. Griffiths and received a penalty of loss of 120 hours off. The maximum forfeiture possible is 160 hours.

49. In oral submissions, Mr. Clewley acknowledged that his client had received a fair hearing. He identified the test for imposing penalty in Williams and OPP (1995), 2 O.P.R. 1047 (O.C.C.P.S.). He suggested that an appropriate disposition, given the proper application of principles of progressive discipline, would be demotion in rank to second-class constable for a period of one year. He proposed that this demotion could be accompanied by a requirement that Constable Brudlo complete some remedial programs and attend the Medical Bureau from time to time.

50. The Prosecution drew to the Hearing Officer’s attention several previous Commission decisions dealing with inappropriate sexual conduct. There was particular reference to Cate and Peel Regional Police Service (1998), 3 O.P.R. 1257 (O.C.C.P.S). The Prosecutor noted Service policies and procedures with respect to sexual harassment and called for a penalty of dismissal.

51. The Hearing Officer delivered his penalty decision on February 9, 2005. In this judgment he summarized the submissions of both Mr. Clewley and the Prosecutor.

52. The Hearing Officer described the conduct in question as being serious in nature. He indicated that this was particularly the case given that it had occurred at work, while Constable Brudlo was in uniform and over a period of time.

53. He acknowledged that in the past that Constable Brudlo had done good work as a police officer. However, he expressed serious concern about the two previous criminal charges and resulting disciplinary convictions.

54. He noted that the most recent criminal penalty was imposed at the same time when the events that are the subject of this proceeding were taking place. Further, he pointed out that efforts had been made to help Constable Brudlo including anger management treatment and psychological counseling.

55. The Hearing Officer noted that Constable Brudlo did not warrant the mitigation that would attach to acceptance of responsibility for his actions. He also pointed out that the facts of this case did not raise concerns with respect to provocation or handicap.

56. He concluded that the events in question were not mere flirting, but the conduct of a man who had repeatedly demonstrated a bias and lack of sensitivity towards women. This was in the face of previous criminal and disciplinary proceedings, prior expressions of remorse and the provision of counseling and assistance.

57. The Hearing Officer expressed the opinion that Constable Brudlo had a character flaw that rendered rehabilitation unlikely and went to the heart of his potential future usefulness as a police officer. Further, given the need for deterrence, the importance of securing the public trust, upholding both the values of the Service, and properly acknowledging the damage to the reputation of the Service that the only appropriate penalty was termination.

Appellant’s Position

58. At the beginning of the appeal Mr. Clewley brought a motion for the introduction of new evidence under section 70(5) of the Police Services Act R.S.O. 1990, c. P. 15 as amended (the “Act”).

59. This evidence in question was a one-page letter from Dr. Nathan Pollock, a psychologist. It spoke to Constable Brudlo’s recent participation in five hour long counseling sessions on gender sensitivity.

60. Mr. Clewley argued that we should admit this document given the importance that the Hearing Officer placed on Constable Brudlo’s alleged “bias” towards women.

61. He asserted that Dr. Pollock’s letter met the four-part test established by the Supreme Court of Canada in Palmer v. Her Majesty the Queen 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 which the Commission adopted in Williams and OPP (1995), 2 O.P.R. 1008 (O.C.C.P.S.). He also drew our attention to R. v. Owen 2003 SCC 33, [2003] 1 S.C.R. 779 (S.C.C.).

62. As to the appeal itself, Mr. Clewley challenged a number of aspects of the Hearing Officer’s decision.

63. He argued that the Hearing Officer erred by failing to grant Constable Brudlo an adjournment on September 14, 2004. He suggested that this decision was made without proper findings or reasons.

64. Mr. Clewley asserted that the undisputed evidence before the Hearing Officer was that on September 14, 2004 Constable Brudlo was not well, on heavy medication, and had not had an opportunity to properly consult with his counsel or review the voluminous disclosure materials.

65. Mr. Clewley argued that the request for an adjournment under these circumstances was reasonable and necessary to ensure full answer and defence. He suggested that to force Constable Brudlo to proceed was unfair because it put him at a severe disadvantage in what turned out to be essentially a credibility contest.

66. He noted that the Hearing Officer placed great reliance on the demeanor of Constable Brudlo and his response to certain questions. Mr. Clewley suggested that given the fact that Constable Brudlo was medicated that neither his appearance nor comments could be relied upon as presenting an accurate reflection of his character or truthfulness.

67. Given the above, Mr. Clewley argued that the outcome of the disciplinary proceedings was a forgone conclusion and the only proper remedy is a new hearing.

68. In the alternative, Mr. Clewley challenged the penalty imposed by the Hearing Officer. He argued that it was harsh, excessive, failed to take into account the relevant precedents and did not correctly apply principles of progressive discipline.

69. Mr. Lowly drew our attention to the test for dismissal articulated in Williams and OPP. He argued that the facts of Constable Brudlo’s situation were most analogous to those in Cate and Peel Regional Police Service. The penalty imposed in that case was demotion to second-class constable for six months with the completion of suitable training on the prevention of sexual harassment.

70. Mr. Clewley also drew our attention to Brayshaw and OPP (1992), 2 O.P.R. 936 (O.C.C.P.S.), Krug and Ottawa Police Service (21 January, 2003, O.C.C.P.S.) and Moore and Toronto Police Service (18 February, 1994, Superintendent Gary Madrick).

71. Mr. Clewley also asserted that the Hearing Officer improperly characterized Constable Brudlo’s disciplinary conviction for domestic assault. He suggested that while domestic assault was a serious matter it was not sexual misconduct. Further, Mr. Clewley noted that the penalty imposed in that disciplinary proceeding was forfeiture of time off.

72. He suggested that this set a new benchmark for any future progressive discipline. As such, the logical penalty to be imposed in the “progressive discipline chain” should have been demotion to fourth-class constable for a period of one year.

73. In conclusion, Mr. Clewley requested if we were not prepared to direct a new hearing that we overturn the penalty decision of the Hearing Officer and impose such a demotion.

Respondent’s Position

74. Mr. Fredericks, on behalf of the Service, opposed the motion to introduce new evidence.

75. He argued that the motion had not been filed in a timely manner. He asserted that the new evidence in question did not meet the four-part test articulated in Palmer v. Her Majesty the Queen. Further, he asserted that it would be an error in principle for us to receive evidence generated following a hearing to challenge a penalty decision made in the first instance. On this point he cited Compagnie miniere Quebec Cartier v. United Steelworkers of America, Local 6869 (1995), 1995 CanLII 113 (SCC), 125 D.L.R. (4^th) 577 (S.C.C.).

76. As to the appeal itself, Mr. Fredericks argued that the conviction and penalty should stand.

77. He noted that there is no absolute right to an adjournment. On this point he drew our attention to section 69(1) of the Act and sections 21 and 23(1) of the Statutory Powers Procedure Act R.S.O. 1990, c. S.22.

78. Mr. Fredericks argued that a party to a proceeding cannot rely on their own negligence in support of a request for an adjournment. This is particularly the case where the tribunal believes that the request is a stalling tactic or otherwise not genuine. In any event, Mr. Fredericks asserted that there is no evidence that the denial resulted in any prejudice to Constable Brudlo. C.U.P.E., Local 30 v. WMI Waste Management of Canada In., 1996 ABCA 6, [1996] A.J. No. 48 (Alta. C.A.) and Stolove v. College of Physicians and Surgeons (Ontario) (1988), 30 O.A.C. 236 (Ont. Div. Ct.)

79. Mr. Fredericks suggested that we should accord significant deference to a penalty decision of a hearing officer and only interfere where there is manifest error, relevant considerations have not been fairly or impartially considered or the sanction is outside of the normal range. Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.), Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.) and Walker and Peel Regional Police Service (2000), 3 O.P.R. 1425 (O.C.C.P.S.)

80. Mr. Fredericks noted the relevant factors to be taken into account by a hearing officer when assessing penalty. On this point he cited Williams and OPP and Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.).

81. Mr. Fredericks then drew our attention to various portions of the Hearing Officer’s decision that he argued addressed the identified criterion. In particular, he focused on consistency of penalty, potential for rehabilitation and the concept of progressive discipline. Eschweiler and OPP (1998), 3 O.P.R. 1276 (O.C.C.P.S.)

82. As well, he cited various cases in support of the argument that termination of Constable Brudlo was neither harsh nor excess, but consistent with previous decisions. Ashby and Brockville Police Service (1990), 1 P.L.R. 246 (O.P.C.), Krug and Ottawa Police Service and Armstrong and Peel Regional Police Service (2002), 3 O.P.R. 1583 (O.C.C.P.S.)

83. Mr. Fredericks concluded by requesting that we dismiss the appeal.

Decision

The Motion

84. Section 70(5) of the Act states that appeals to the Commission are “on the record”. However, it also provides the Commission with the authority to “receive new or additional evidence as it considers just”.

85. In order to ensure that requests to receive “new or additional evidence” are dealt with in an orderly, fair and consistent manner the Commission has established Rules of Practice pursuant to section 25.1 of the Statutory Powers Procedure Act.

86. These Rules require that any application to present new evidence must be made by way of a motion. Section 14.3 states that “Unless the Commission otherwise permits, a party shall deliver a notice of motion at least fourteen days before the Commission deals with any motion …”

87. At issue before us is the proposed introduction of a one page letter dated September 26, 2005 from a psychologist attesting to fact that Constable Brudlo attended five one hour gender sensitivity sessions.

88. The motion to receive this evidence was filed with the Commission on October 17, 2005. This was two days before this appeal. No consent has been granted to abridge the normal filing requirements. As such, it is clear that Constable Brudlo’s application to present new evidence has not been filed in a timely manner.

89. Even if this were not the case, we are not satisfied that the receipt of the letter would be “just”. The Act does not set out what factors are to be taken into account when attempting to assess whether or not it would be “just” to receive either new or fresh evidence. However, in previous cases, the Commission has identified the principles set out in Palmer v. Her Majesty the Queen as providing useful guidance.

90. At page 775 of that decision, Mr. Justice McIntyre describes the following four-part test:

91. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

92. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

93. The evidence must be credible in the sense that it is reasonably capable of belief; and

94. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

95. To our mind, the proposed evidence fails to meet two aspects of this test.

96. The letter in question was tendered to respond to concerns expressed by the Hearing Officer about Constable Brudlo’s attitude towards women. We note that such concerns were clearly identified by the Hearing Officer in his decision on conviction delivered October 13, 2004.

97. In that judgment the Hearing Officer referred to Constable Brudlo’s observations that “Women can be strange creatures”. At page 10 he stated:

I find his response to be highly offensive, delivered out of the mouth of a uniformed police officer testifying in a public tribunal. It is most revealing of his inner character. I find there is consistency between the comment, “women can be strange creatures,” and the prerequisite lack of gender respect that is implicit, if one felt entitled to speak to a civilian work colleague about such intimate matters as oral sex.

94. With due diligence, there is no reason why these concerns could not have been addressed in sentencing submissions that took place several weeks later on December 9, 2004.

95. As well, we are not satisfied that the evidence in question is particularly helpful or relevant. It is essentially a bald statement that in the eight months since his termination Constable Brudlo had attended some gender sensitivity sessions “and shown a willingness to consider how his attitudes have adversely influenced his relationships with women”.

96. There is no statement of medical opinion or prognosis. As such, it cannot be meaningfully tied to any of the essential dispositional factors (i.e. handicap or potential for rehabilitation).

97. For the above noted reasons we denied the motion to receive new or additional evidence.

The Adjournment Request

98. Section 69(1) of the Act states that disciplinary proceedings for police officers are to be conducted in accordance with the Statutory Powers Procedure Act.

99. Section 21 of that legislation speaks to adjournments. It states:

100. A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

101. This provision provides tribunals with an essential power to control their hearing process.

102. There is no right to an adjournment. The onus is on a party requesting an adjournment to show that it is required. The tribunal is obliged to assess any such request in light of a number of considerations. This would obviously include the history of the particular proceeding in question. Broader concerns can entail the importance of expeditious resolution of disciplinary proceedings involving public officials exercising significant powers.

103. Such considerations must be balanced against the essential need to ensure procedural fairness and natural justice. Police officers facing discipline are entitled to know the allegations against them, to be represented, to receive proper disclosure and have sufficient time to prepare.

104. Constable Brudlo’s request for an adjournment on September 14, 2004 was denied. The Hearing Officer provided brief reasons noting that the matter had been before the tribunal for several months, Constable Brudlo had not attended on previous occasions because of illness and two trial dates had already been missed. He also pointed out that Constable Brudlo had certainly been well enough that summer to work. The implication being that he should have been well enough to prepare.

105. We acknowledge that these reasons lack much detail or analysis. However, in our view, the context in which this decision was made is amply reflected on the record and support the conclusion reached.

106. Constable Brudlo was represented by experienced counsel. That counsel accepted a Notice of Hearing on his behalf on January 7, 2004. That Notice contained a clear statement that Constable Brudlo faced a potential penalty of demotion or dismissal.

107. Counsel for Constable Brudlo received timely disclosure. Constable Brudlo received the benefit of a number of requests for adjournment. Indeed, the disciplinary hearing had been scheduled to commence on two prior occasions and was not able to proceed because of Constable Brudlo’s absence. This obviously caused inconvenience to others involved, including the witnesses.

108. Constable Brudlo was aware that his hearing was rescheduled for a third time to commence on September 14, 2004. He had most of the summer off. He was sufficiently well to look after his children and deal with custody proceedings.

109. Constable Brudlo’s condition also permitted him to come to Toronto from Grand Bend to work twelve shifts. While he was in the city he “forgot” to contact his counsel. This is not an acceptable excuse.

110. Constable Brudlo drove to the disciplinary hearing on September 14, 2004. He testified to various medical conditions. The nature and extent of these conditions were not supported by any medical evidence. Constable Brudlo acknowledged that he was experiencing a “better day”. The Hearing Officer had the benefit of observing Constable Brudlo and assessing his state of mind.

111. Given the above, we believe it was open to the Hearing Officer to conclude that Constable Brudlo had not met the onus on him to show that a third adjournment was necessary “to permit an adequate hearing to be held”.

112. We note that during the course of that hearing the allegations against Constable Brudlo were vigorously defended. All witnesses were cross-examined and Constable Brudlo spoke on his own behalf. The Hearing Officer observed that he had “no difficulty expressing himself”. Further, in penalty submissions on December 4, 2004 counsel for Constable Brudlo acknowledged that his client “got a fair hearing”.

113. For these reasons we would dismiss this aspect of the appeal.

The Penalty

113. Constable Brudlo was found guilty of discreditable conduct contrary to section 2(1)(a)(xi) of the Code. That provision makes it a disciplinary offence 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”.

114. When assessing what might be an appropriate penalty for such behaviour a Hearing Officer is obliged to take into account a number of factors. In Williams and OPP the Commission identified three key elements. These include the nature and seriousness of the misconduct in question, the ability to reform or rehabilitate the officer and the damage that would occur to the reputation of the police service if the officer were permitted to remain on the force.

115. Other factors can be relevant, either mitigating or aggravating the possible penalty. They include the officer’s:

• employment history and experience;

• recognition of the seriousness of the transgression; and

• handicap or other relevant personal circumstances.

116. Other potential considerations are provocation, the need for deterrence, concerns arising from management’s approach and consistency with previous penalties for similar infractions.

117. Our role on appeal is somewhat different from that of the Hearing Officer. Our responsibility is not to second guess the Hearing Officer and substitute our own opinion. Rather, it is to assess whether or not the Hearing Officer has properly, fairly and impartially taken into account all of the relevant factors and principles and imposed a penalty within the range appropriate to the particular circumstances of the case at hand.

118. How do these considerations apply?

119. In his penalty decision the Hearing Officer properly identified the test in Williams and OPP and the relevant disposition factors. He characterized the conduct in question as being very serious, likely to damage the reputation of the Service and warranting both general and specific deterrence. We agree.

120. While on duty and in uniform Constable Brudlo behaved in a highly inappropriate manner towards a female colleague: That individual was vulnerable given that she was experiencing personal problems with her fiancé. This was known to Constable Brudlo.

121. This conduct in question included unsolicited comments and suggestive discussions of an explicit sexual nature. It also involved unwanted hugs and touching on the thighs, back and ribcage. This was not an isolated event or innocent flirting but rather a course of offensive conduct over the course of a number of months. Constable Brudlo’s behaviour continued in the face of “clear signals” from M that she was not interested. It caused her great distress and discomfort.

122. This conduct was in clear contravention of extensive Service policies and procedures designed to create and maintain a workplace free from harassment. It occurred while Constable Brudlo was on probation for assaulting his common-law spouse and during a time period when he was facing disciplinary actions for that incident.

123. Constable Brudlo’s actions were unmitigated by handicap, provocation or questionable management response. As well, this case does not demonstrate the mitigating factors identified in Cate and Peel Regional Police Service (i.e. single incident, acknowledgment of responsibility and positive testimony from female co-workers).

124. The Hearing Officer spent a significant portion of his penalty decision dealing with the question of the potential rehabilitation of Constable Brudlo. He acknowledged the positive aspects of Constable Brudlo’s work history but expressed grave reservations about his disciplinary record.

125. This record reflected a previous termination in 1990 that was reduced on appeal to the maximum demotion following a finding of guilt for the criminal offence of indecent exposure. As well, as noted earlier in June of 2003, Constable Brudlo received a substantial forfeiture following a finding of guilt for domestic assault.

126. The Hearing Officer expressed reservations with the fact that despite prior expressions of remorse, commitments to reform, treatment, assistance, support and counseling Constable Brudlo seemed to feel entitled to harass M. He believed that this was made worse because Constable Brudlo blamed his situation on M or some generic “strangeness” that he attributed to women.

127. The Hearing Officer found this raised serious questions in his mind with respect to Constable Brudlo’s character and suggested a flaw that rendered any possible rehabilitation unlikely and nullified his potential future usefulness to the Service.

128. We agree. Even acknowledging the gap between previous disciplinary proceedings Constable Brudlo’s employment history reflects a serious problem in dealing with members of the opposite sex. Even acknowledging that he may have testified under the influence of medication, his comments about women are of great concern.

129. This would be troubling in the case of any employee, but particularly so for a police officer sworn to uphold the law. It is the duty of police officers to assist victims of crime, not to create victims. Constable Brudlo has failed to meet this standard, not once, but three times during the course of his career.

130. As such, on the facts of this case we believe that the option of termination was certainly available to the Hearing Officer and an appropriate penalty in the circumstances.

131. For these reasons we uphold the penalty of termination (in the absence of resignation within seven days).

DATED AT TORONTO THIS 23rd DAY OF NOVEMBER 2005.

Murray W Chitra Tammy Landau David Edwards

Chair Member Member

1Name modified

2Transcript of Disciplinary Hearing, September 14, 2004, page 110.