OCCPS #06-01
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
Citation: Lang v. Toronto Police Service, 2006 ONCPC 1
REASONS FOR DECISION
DETECTIVE DAVID LANG
Appellant
TORONTO POLICE SERVICE
Respondent
Presiding Members:
Sylvia Hudson, Vice Chair
Dr. Tammy Landau, Member
Appearances:
Mr. Joseph A. Markson Counsel for Appellant
Mr. Robert Fredericks, Counsel for the Respondent
Hearing Date: Wednesday, January 18, 2006
This is an appeal from a penalty imposed on April 12, 2005 by Superintendent N.T. Tweedy (the “Hearing Officer”) following a plea of guilt to one count of discreditable conduct contrary to section 2 (1) (a) (xi) of the Schedule Code of Conduct, O.Reg. 123/98 (the “Code”).
The penalty in question is the forfeiture of three days or twenty-four hours.
Background:
Detective David Lang joined the Toronto Police Service in 1980. In 1989 he was promoted to the rank of sergeant. From 1993 to 1997 he was an investigator with the Service’s Public Complaints Investigation Bureau. He is currently assigned to the Fraud and Forgery Squad.
According to an Agreed Statement of Facts, Detective Lang had been through an acrimonious separation, divorce and custody battle. He expressed concerns about his safety and the possession of firearms by his former wife’s friend.
As a result of his concerns, in the spring of 2003 Detective Lang contacted the
Chief Firearms Office of the Canadian Firearms Centre. His concerns were
referred to the Halton Regional Police Service. As a result, an Area Firearms Officer conducted an investigation and concluded that no offences had occurred and there were no grounds to support a Firearms Licence revocation. Detective Lang was advised of this decision.
Detective Lang was not satisfied and filed a public complaint with the Ontario Civilian Commission on Police Services, listing numerous allegations of misconduct against identified officers of the Halton Regional Police Service. These complaints were subsequently dismissed.
While pursuing this complaint there were occasions when Detective Lang was on duty and used the resources of the Toronto Police Service. This included the use of police service stationary, telephones and a computer. As a result, he was charged with two counts of discreditable conduct.
On January 18, 2005, an Agreed Statement of Facts was brought before the Hearing Officer and Detective Lang pled guilty to one count of discreditable conduct. The other charge was withdrawn.
On April 12, 2005, the Hearing Officer imposed the penalty of a forfeiture of three days, pursuant to section 68(1)(f) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”).
Appellant’s Position:
Mr. Joseph Markson, Counsel for Detective Lang, is seeking a reduction of this penalty. He acknowledged that Detective Lang committed misconduct by misusing police resources when he made five personal telephone calls while on duty, used a Toronto Police Service envelope to submit complaints to Halton Regional Police Service, and stored two personal documents on his at-work computer.
Mr. Markson outlined three grounds for the appeal. First, he argued that the Hearing Officer erred in his consideration of the facts and went beyond the Agreed Statement of Facts that gave rise to the allegation of discreditable conduct and the guilty plea. Mr. Markson expressed the view that the Hearing Officer took particular offence to the fact that Detective Lang lodged complaints against fellow officers, albeit of another police service, even though such behaviour is clearly permitted under the Act, and that the complaints were lodged while Detective Lang was off-duty.
Second, Mr. Markson argued that a penalty of three days forfeiture was disproportionate to the facts of the offence. He pointed out that the scope of what was described as discreditable conduct (i.e. misuse of police resources) was certainly minor. Mr. Markson pointed out that of the five telephone calls made by Detective Lang, three were short voicemail messages left by others on Detective
Lang’s voicemail. He pointed out that Detective Lang responded to those voicemails at the end of his shift. On at least one occasion, Detective Lang had not taken a lunch break and was therefore entitled to end his shift early. Counsel further argued that Detective Lang had only used his work computer to store his personal documents and had not created them on the work computer. In addition, he noted that only one envelope of the Toronto Police Service was used.
Mr. Markson suggested that the Commission bear in mind that people frequently, and of necessity, make personal phone calls from work to, for example, their doctor, or to arrange daycare. This is generally tolerated by employers and would not, if kept within reason, constitute misconduct. He argued that Detective Lang’s actions should not be viewed as different from other officers or civilian employees in such situations.
Finally, Mr. Markson took the position that the Hearing Officer erred in failing to give due weight to the personal circumstances of Detective Lang. In particular, Detective Lang’s unblemished employment record, the stress from his divorce and custody battle, and his guilty plea should, according to the Appellant, be given more weight.
Mr. Markson acknowledged neither he nor the Hearing Officer could find precedents based on factually similar cases (misuses of police resources). However, Mr. Markson argued that a reprimand should be the appropriate remedy for the very limited personal use of police resources made by Detective Lang.
In support of his argument, Counsel drew our attention to Constable Lewis and Ontario Provincial Police (1997), 3 O.P.R. 1121 (O.C.C.P.S.), Constable Groat and Quinte West Police Service (2001) 3 O.P.R. 1513 (O.C.C.P.S.) and Constable Bettes and Peel Regional Police Service (1996), 2 O.P.R. 1070, (O.C.C.P.S.).
Respondent’s Position:
Mr. Robert Fredericks, Counsel for the Respondent, submitted that due to the seriousness of Detective Lang’s misconduct, the imposed penalty was not unreasonable and was within the range of appropriate findings.
Mr. Fredericks argued that the Hearing Officer accepted that Detective Lang had fear for his personal safety and he had the right to file a public complaint. Mr. Fredericks suggested that the crux of the Hearing Officer’s decision boiled down to Detective Lang’s “off-duty conduct that entered into his on-duty conduct”.
Counsel submitted that the use of the Toronto Police Service resources was not the only issue at stake in this case. He noted that Detective Lang received phone
calls at work, and his voicemail message would have made it clear that he was a Toronto police officer. According to Mr. Fredericks, this is not the same as making a doctor’s appointment or organizing a child’s hockey game. Further, Detective Lang initiated the complaints as a Toronto police officer and did so during working hours. He either “deliberately or recklessly” concealed the fact that he was a Toronto police officer.
Finally, Mr. Fredericks asserted that it is not possible to divorce the context of the use of resources from the nature of the behaviour (i.e. lodging complaints against officers of another police service and conducting at least some of those activities while on duty). Indeed, according to Mr. Fredericks, it is the context, which gives them their seriousness. The Respondent submits that the actions of Detective Lang rose to the level of conflict of interest contrary to section 49(1) of the Act.
Mr. Fredericks agreed that it was difficult to find comparable decisions, with a similar fact scenario. However, he noted that the three key criteria to consider when imposing penalty 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.
On this point he cited: Williams and the Ontario Provincial Police (1995), 2
O.P.R. 1047 (O.C.C.P.S.), Reilly and Brockville Police Service (1997), 3 O.P.R.
1163 (O.C.C.P.S.), Lewin and Toronto Police Service (2001), 3 O.P.R. 1472 (O.C.C.P.S.) and Hrycyschyn and Ontario Provincial Police (1993), 2 O.P.R. 956 (O.C.C.P.S.).
Mr. Fredericks noted that the Hearing Officer acknowledged that there were mitigating circumstances, including Detective Lang’s unblemished employment record, his plea of guilt and remorse. However, having considered these, the Hearing Officer was right to take into account the repeated nature of the conduct, the fact that Detective Lang was previously with the Complaints Bureau and that he was a senior officer in the Toronto Police Service.
Mr. Fredericks concluded by requesting that we dismiss the appeal and confirm the decision of the Hearing Officer.
Decision:
There is no dispute that Detective Lang’s behaviour constituted misconduct. Detective Lang entered a plea of guilt and has been found guilty of one count of discreditable conduct. The issue before us concerns the appropriateness of the penalty imposed by the Hearing Officer.
We have given careful and thoughtful consideration to the arguments of both the Appellant and the Respondent. We do not find that the Hearing Officer went beyond the Agreed Statement of Facts, or that a reprimand is the only appropriate sentence in this case.
In Williams and Ontario Provincial Police the Commission identified three key elements in determining an appropriate sentence. 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 continues his behaviour. Further considerations can include the need for deterrence. These principles are the foundation on which the Commission determines whether the penalty in the matter before us is appropriate.
We agree with the Hearing Officer that the charge against Detective Lang constituted serious misconduct. While on duty, he used police service resources to pursue a personal grievance against members of another police service. Detective Lang worked for four years in the Public Complaints Investigations Bureau of the Toronto Police Service and should have been very aware of potential concerns of conflict of interest.
We find that the Hearing Officer took into consideration the appropriate mitigating factors: Detective Lang’s exemplary employment record, the degree of personal stress he was under as a result of his divorce and custody battle, and the remorse he has expressed.
We also find that the Hearing Officer gave appropriate weight to the aggravating factors in this case: the misuse of police resources occurred on a number of separate occasions, Detective Lang is a senior officer who worked in the complaints bureau for some time and should have been aware of the conflict of interest he put himself in, and the damage his behaviour threatened to cause to the reputation of the Toronto Police Service.
When dealing with disciplinary appeals relating to the Hearing Officer’s decision it is important to understand the role of the Commission in hearing disciplinary appeals. The Commission takes its direction from the standards of review set out in Walker and Peel Regional Police Service (2000), 3 O.P.R. 1425 (O.C.C.P.S.), which states, at page 1431. “It is not our function to second-guess the Hearing Officer’s decision particularly in those cases where we might have imposed a different disposition (Bright v Konkle). Rather, it is our role to assess whether or not the Hearing Officer applied the correct principles and whether or not in the circumstances the penalty imposed is manifestly excessive”.
We feel that the Hearing Officer reviewed all the evidence and all the factors before imposing his penalty. We find no evidence of any manifest error justifying the setting aside of the decision of the Hearing Officer.
We feel that Detective Lang’s experience with public complaints, coupled with his status as a detective, warranted better judgment. Although we appreciate the fact that Detective Lang was within his rights to lodge a complaint against officers in another police service, and that he was going through difficulties in his personal life, we strongly believe that senior police officers must be ever conscious of their responsibilities and conduct. Furthermore, senior police officers must be held to the highest behaviour standard. In this case, it appears that this standard was not met.
Given the above, it does not strike us that a penalty of forfeiture of three days is unreasonable or outside of the range of penalties available to the Hearing Officer. Accordingly, we dismiss the appeal and confirm the decision of the Hearing Officer.
DATED AT TORONTO THIS 8th DAY OF FEBRUARY 2006.
Sylvia Hudson Dr. Tammy Landau
Vice Chair, OCCPS Member, OCCPS