OCCPS #06-10
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
Citation: Wildeboer v. Toronto Police Service and Aylin, 2006 ONCPC 10
REASONS FOR DECISION
CONSTABLE PAUL WILDEBOER Appellant
TORONTO POLICE SERVICE AND NICOLA AYLIN Respondents
Presiding Members:
Murray W. Chitra, Chair Biagio (Bill) Marra, Member
Appearances:
Peter M. Brauti, Counsel for the Appellant Robert Fredericks, Counsel for the Respondent, Toronto Police Service Kelley J. Bryan, Counsel for the Respondent, Nicola Aylin
Hearing Date: Monday, October 16, 2006
Constable Paul Wildeboer appeals the penalty imposed on him by Superintendent Neale Tweedy (the “Hearing Officer”) on February 14, 2006 following a plea of guilt to one count of insubordination contrary to section 2(1)(b)(ii) of the Code of Conduct contained in Regulation 123, R.R.O. 1998 (the “Code”).
The penalty in question is forfeiture of 18 days or 144 hours off.
Background:
The history of events leading to the disciplinary proceedings against Constable Wildeboer is complex. It involved a tangled web of personal and business relationships that generated acrimony, civil and criminal proceedings and public complaints.
As a consequence, on February 13, 2004 Constable Wildeboer was charged with two counts of insubordination arising from a series of Canadian Police Information Centre (“CPIC”) queries that he conducted in 2002 and 2003.
The disciplinary hearing commenced on January 31, 2005. Ms. Alylin had standing at these proceedings as a public complainant given that she had been the subject of a number of Constable Wildeboer’s CPIC queries. At the hearing, counsel for Ms. Aylin raised objections to the wording of portions of a proposed Agreed Statement of Facts.
These objections were dealt with by way of a motion that involved several days of evidence and submissions. On April 12, 2005 the Hearing Officer ruled that he would accept the Agreed Statement of Facts as initially presented.
That Statement read:
Police Constable Paul Wildeboer, between October 2002 and February 2003 was attached to 55 Division, performing investigative duties in the Fraud Office. Between March 2003 to August 2003 still remaining at 55 Division he was performing front line duties in uniform. He had access to computer terminals ON38099, ON91186 and ON36900.
While on duty, Police Constable Wildeboer conducted the following CPIC queries.
On October 15, 2002, Police Constable Wildeboer conducted two CPIC queries on Judith Davis, his girlfriend at the time.
On November 19, 2002, Police Constable Wildeboer conducted two CPIC queries on Kathy Mickalakos, a former friend/acquaintance.
On December 17, 2002, Police Constable Wildeboer conducted a CPIC query on himself.
On February 20, 2003, Police Constable Wildeboer conducted two CPIC queries on himself.
On February 26, 2003, Police Constable Paul Wildeboer conducted two CPIC queries on Kathy Mickalakos, a former friend/acquaintance.
On June 28, 2003 Police Constable Paul Wildeboer conducted a CPIC query on his daughter.
On October 25, 2002, February 18, 2003, and August 23, 2003 Police Constable Paul Wildeboer conducted three CPIC queries on Nicola Aylin, an acquaintance. He became concerned about her identity, associations and other activities she was involved in. As a result of his concerns, he conducted the above CPIC queries.
Police Constable Paul Wildeboer conducted numerous CPIC queries that were not for the purpose of his official police business or duties.
On April 27, 2005 Constable Wildeboer pled guilty to an amended single count of insubordination that incorporated the elements identified above.
Penalty Hearing:
The hearing with respect to penalty commenced on November 2, 2005. The Hearing Officer heard evidence from Ms. Kathy Mickalakos about the impact of Constable Wildeboer’s actions on her.
The Hearing Officer received a summary of Constable Wildeboer’s Record of Service and selected information from his Personnel File. It disclosed that Constable Wildeboer commenced his employment with the Toronto Police Service as a cadet in June of 1981. He became a first-class constable in October of 1985. The Service Record contained 30 positive entries and 13 letters of appreciation.
It also disclosed two prior disciplinary findings. One was a conviction for discreditable conduct in October of 1996 arising from an incident where Constable Wildeboer failed a roadside breathalyzer test after being stopped on Highway 400 for driving 140 kilometres an hour. Apparently, Constable Wildeboer had been drinking as a result of serious domestic problems with his then common law wife. For this conduct, he received a penalty of forfeiture of four days or 32 hours off.
The second matter arose from the improper storage of a service firearm. For this infraction Constable Wildeboer received a loss of eight hours in June of 2005 at a Unit Level disciplinary proceeding.
The Prosecutor drew various sentencing precedents to the Hearing Officer’s attention. She suggested that in the circumstance, an appropriate penalty would be a forfeiture of pay in the range of ten to fifteen days.
Counsel for Ms. Aylin stated that he was not in a position to suggest what would be an appropriate number of days to be forfeited. However, he indicated that in his opinion, this was one of the more serious cases of unauthorized CPIC use and urged the Hearing Officer to view it in that light.
Counsel for Ms. Aylin also proposed that the Hearing Officer consider imposing what amounted to ‘CPIC probation’. In essence, for a period of time Constable Wildeboer would be required to report to his Unit Commander any CPIC queries and explain their purpose.
Constable Wildeboer did not testify. Rather, his counsel suggested that given the circumstances, an appropriate penalty would be the forfeiture of between six to eight days.
The Hearing Officer delivered his penalty decision on February 14, 2006. He imposed a forfeiture of 18 days off. It is that decision that is the subject of this appeal.
Appellant’s Position:
Mr. Brauti, on behalf of the Appellant, argued that the penalty imposed by the Hearing Officer was flawed.
He took the position that the Hearing Officer erred in principle by assessing a forfeiture that exceeded that proposed by either the Prosecution or Defense. He asserted that the parties to the disciplinary proceedings had in essence made a joint submission with respect to penalty that was ignored by the Hearing Officer without explanation.
Mr. Brauti drew our attention to a number of cases that stressed the need for a Hearing Officer to provide clear reasons for departing from a joint submission. These included Romanic and Niagara Regional Police Service (1998), 3 O.P.R. 1272 (O.C.C.P.S.) and Toronto (City) Police Service v. Kelly [2006] O.J. No. 1758 (Ont. Div. Ct.).
He also spoke to the importance of joint submissions to the efficient operation of the disciplinary process and the need to encourage such arrangements. R. v. Cerasuolo (2001), 2001 CanLII 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.)
Mr. Brauti argued that an agreement by a Prosecutor to recommend a penalty within a certain range was an important factor to any officer considering a guilty plea. He stated that such a recommendation ought to be capable of being relied upon.
He suggested that for a Hearing Officer to ‘jump’ such a recommendation could constitute an error in principle. R. v. Smart [2005] O. J. No. 435 (Ont. C.A.), R. v. E.O. 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 (Ont. C.A.) and Lloyd and London Police Service (1999), 3 O.P.R. 1345 (O.C.C.P.S.)
Mr. Brauti argued that the penalty imposed in this situation was inconsistent with those imposed in prior disciplinary cases dealing with similar types of misconduct. On this point he drew our attention to Christian and Grbich and Alymer Police Service (9 August, 2002, O.C.C.P.S.), O’Neill and Toronto Police Service (27 October, 2004, Superintendent N.T. Tweedy), Coulis and Toronto Police Service (13 January, 2005, Superintendent N.T. Tweedy), Sterling and Hamilton-Wenworth Police Service (1999), 3 O.P.R. 1356 (O.C.C.P.S.).
Mr. Brauti also asserted that the penalty imposed by the Hearing Officer was demonstrably unfit because it failed to properly weigh the relevant dispositional considerations. These included the relative seriousness of the misconduct, the officer’s work history, the humiliation suffered by him and the unqualified nature of his guilty plea.
For these reasons, Mr. Brauti suggested that we reduce the penalty to a forfeiture of ten days or eighty hours off.
Respondent’s Position (Toronto Police Service):
Mr. Fredericks, on behalf of the Toronto Police Service, reminded us of the standard of review to be applied in dispositional appeals. Allen and Hamilton- Wentworth Police Service (1995), 3 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.)
He identified the relevant factors to be considered and weighed by a hearing officer when imposing penalty. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.)
Mr. Fredericks argued that the Hearing Officer properly took these matters into account. He drew our attention to various portions of the Hearing Officer’s decision dealing with the nature and seriousness of the misconduct in question, the damage to the reputation of the police force, employment history, remorse and deterrence.
He asserted that the penalty imposed reflected a proper balancing of these considerations and was consistent with penalties imposed in similar cases. In particular, he pointed to Coon and Toronto Police Service (10 April, 2003, O.C.C.P.S.).
Mr. Fredericks also argued that the facts of this case do not disclose the existence of any joint submission with respect to penalty. Further, even if such a submission existed it was clearly not supported by Counsel for the complainant, Ms. Aylin.
In conclusion, Mr. Fredericks asserted that the decision of the Hearing Officer properly articulates his thought process and provides clear and cogent reasons in support of his conclusions.
As a result, Mr. Fredericks requested that we dismiss this appeal and confirm the decision of the Hearing Officer.
Respondent’s Position (Nicola Aylin):
Ms. Bryan, on behalf of Nicola Aylin, supported the position taken by the Toronto Police Service.
Specifically, Ms. Bryan asserted that there was no joint submission with respect to penalty and accordingly the Hearing Officer did not impose a disposition that exceeded any recommendations.
Ms. Bryan noted the impact of Constable Wildeboer’s actions on Ms. Aylin. This included emotional trauma, legal costs and the disruption to her life caused by the hearing process.
Ms. Bryan argued that Ms. Aylin continues to be troubled by Constable Wildeboer’s lack of remorse in light of the seriousness of his misconduct. She suggested much of the damage to the reputation of the Toronto Police Service could have been avoided if Constable Wildeboer had pled guilty at the earliest opportunity.
She requested that we uphold the penalty imposed by the Hearing Officer. Further, she requested that pursuant to section 68(5)(c) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) we direct that Constable Wildeboer “must report to a superior officer at the end of each shift any and all CPIC queries he made during that shift, and the reasons for each query, and that the probation term will continue until the superior officer is satisfied that such … probation is no longer necessary.”
Decision:
The sole issue before us is whether the penalty of eighteen days forfeiture imposed by the Hearing Officer on February 14, 2006 was excessive and should be reduced.
The case before the Hearing Officer concerned an allegation of insubordination. Section 2(1)(b)(ii) of the Code deems it to be misconduct when an officer “without lawful excuse, disobeys, omits or neglects to carry out any lawful order”.
The order in question arose from Rule 4.13.1 of the Toronto Police Service Rules. This is directed at ensuring that members comply with RCMP guidelines on access to CPIC information. It includes a requirement that CPIC information must not be accessed for personal reasons or other purposes unrelated to law enforcement.
This appeal essentially raises two issues. The first is whether the Hearing Officer rejected a joint submission with respect to penalty without providing the necessary explanation.
Disciplinary proceedings involving police officers are administrative proceedings of a labour relations nature. Typically, there are two parties: the police service employer and the officer employee. However, discipline can arise from a public complaint.
In such situations, section 69(3) of the Act provides that the public complainant is a party to the disciplinary hearing and has the right of full participation. In the case before us, Ms. Aylin had this status. As such, she had the right to disclosure, cross-examine witnesses, call evidence and make submissions with respect to penalty.
At the sentencing hearing on November 2, 2005 the three parties took different positions. The Service proposed a penalty of forfeiture in the range of ten to fifteen days. Counsel for the officer proposed six to eight days. Counsel for Ms. Aylin did not suggest a specific number of days, but rather called for a forfeiture which reflected the “serious” nature of the unauthorized CPIC checks. As well, a period of ‘CPIC probation’ was recommended.
On the clear facts of this case, it cannot be said that there was a joint submission by the parties with respect to penalty that was departed from by the Hearing Officer, requiring specific explanation in his reasons.
The second issue before us is whether or not the penalty imposed took into account the relevant factors and sentencing precedents.
When evaluating or assessing a penalty, the role of the Commission is clear. It is not to second-guess the decision of the Hearing Officer. It is not to substitute our opinion for that of the Hearing Officer. Rather, it is to assess whether or not the Hearing Officer applied the correct principles and imposed a penalty that is consistent with those handed down in similar cases.
In situations where the relevant factors have not been fairly or impartially considered, a decision discloses a manifest error or if the penalty imposed is beyond the normal range the Commission may intervene.
The factors to be taken into account by a Hearing Officer when imposing penalty are well established. They 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.
There are other considerations that may be relevant and either aggravate or mitigate a penalty. They include the officer’s employment history and experience, recognition of the seriousness of the transgression and handicap or other related personal circumstances.
Additional factors could include provocation, the need for deterrence or concerns arising from management’s approach to the misconduct in question. As well, a Hearing Officer must take into account prior disciplinary cases dealing with similar types of misconduct.
The Hearing Officer’s decision is 23 pages in length. The first part dealt with the motion brought with respect to the proposed Agreed Statement of Facts. The Hearing Officer then went on to summarize the positions of the various parties with respect to penalty.
In his analysis the Hearing Officer identified the conduct in question as being serious. This is no doubt correct. As was noted in Coon and Toronto Police Service at page 12:
The Commission has ruled in the past that the personal use of CPIC constitutes major misconduct. The use of CPIC must be solely reserved for official police work and must never be used for personal reasons. Fundamental to the successful functioning of the CPIC system is a strong sense of trust; trust that the system is there to help police officers in pursuit of their official duties and trust that no police officer will purposely or willfully misuse the system.
The Hearing Officer noted that Constable Wildeboer’s actions represented a breach of privacy rights that caused distress and trauma to members of the public. As well, it constituted a breach of contract with the RCMP, which maintains the CPIC system.
It is also evident that this was not an isolated incident, but rather a course of conduct. Constable Wildeboer made 13 separate CPIC queries on six separate occasions over the course of 10 months. These queries appear to have arisen in the context of acrimonious personal and business relationships.
The Hearing Officer acknowledged the Appellant’s lengthy record of achievement. However, he noted the comments made in the decision at Constable Wildeboer’s prior disciplinary hearing in 1996. That proceeding arose out of a domestic dispute.
Superintendent Terrance Kelly in his penalty decision dated October 22, 1996 stated:
… it must be recognized that when his personal problems reverberate and affect this Police Service adversely the situation must be closely scrutinized. I hope P.C. Wildeboer takes into consideration the necessity of stabilizing his personal life … I hope that P.C. Wildeboer appreciates the leniency offered to him today in this Tribunal …
The Hearing Officer expressed concern that this admonishment does not appear to have had a lasting affect.
Accordingly, he suggested that a penalty reflecting specific deterrence was necessary given that Constable Wildeboer’s “inability to stabilize his personal circumstances, has affected his decision making, and offended both his Oath of Office and public trust.” The Hearing Officer also stressed the importance of general deterrence. He noted that the Service published Routine Orders in both 2000 and 2002 reminding officers not to use the CPIC system for personal purposes. Both appear to have little impact on Constable Wildeboer.
These observations with respect to both specific and general deterrence seem reasonable and supported by the record.
The Hearing Officer noted Constable Wildeboer’s guilty plea, acknowledgment of wrongdoing and prospects for rehabilitation. He expressed reservations about the lateness of the plea, but made clear that he would apply the appropriate mitigation.
The Hearing Officer noted that the reputation of the Service had suffered as a result of the actions of Constable Wildeboer. This was at two levels. The first related to the media coverage generated by the disciplinary hearing. The second concerned the complainants, who felt both violated and abused by his actions.
Given the above, and acknowledging we are assessing the reasons of a lay tribunal not legally trained, it seems evident that the Hearing Officer identified and weighed the relevant sentencing factors in light of the record before him. His reasoning discloses no obvious error.
Further, in his decision the Hearing Officer identified several decisions where penalties were imposed for improper CPIC use. He noted that the penalties imposed ranged from reprimand to dismissal.
It is difficult to compare these cases. Some involve single counts of CPIC abuse, others involve multiple counts and some involve multiple abuses contained in a single count.
For example, in Coulis and Toronto Police Service the officer pled guilty to one count of insubordination. That related to a single CPIC query made on behalf of her husband that jeopardized an undercover police officer. Constable Coulis received a forfeiture of six days.
In Christian and Grbich and and Aylmer Police Service an officer was charged with several disciplinary infractions. He pled guilty to five. Three were for discreditable conduct. Each concerned a single CPIC query directed at the current boyfriend of a former girlfriend. The officer received a five day suspension for the first count, fifteen days for the second and thirty days for the third.
In Hardy and Toronto Police Service the officer was charged with one count of insubordination for several unauthorized CPIC queries on behalf of a suspected drug dealer. He pled guilty and was demoted from first-class to third-class constable for six months.
In the case at hand Constable Wildeboer was found guilty of one count of insubordination. However, it related to thirteen unauthorized CPIC queries on six separate occasions. It cannot properly be compared to cases with a single transgression reflected in a single count.
As such, we feel that it cannot be said that the penalty of eighteen days forfeiture for the various transgressions reflected in the single count of insubordination that Constable Wildeboer pled guilty to was outside of the range available to the Hearing Officer.
That leaves the question of ‘CPIC probation’. Section 68(5)(c) of the Act provides that in addition to a suspension or forfeiture a hearing officer may “direct that the … police officer participate in a specified program or activity”.
To our mind this provision cannot be applied where no actual program exists. Further, the concept of “activity” cannot be expanded to include, what is in effect daily scrutiny of Constable Wildeboer’s CPIC usage by unnamed individuals for an unspecified period of time.
If Constable Wildeboer’s immediate supervisor feels that increased monitoring is necessary, then he or she is certainly entitled to do so. However, it is our view that this is not within the authority of a Hearing Officer to direct.
For the above reasons, this appeal is denied.
DATED AT TORONTO THIS 7th DAY OF NOVEMBER, 2006.
Murray W. Chitra Chair, OCCPS
Biagio (Bill) Marra Member, OCCPS