Hassan v. Peel Regional Police Service, 2006 CanLII 84677

OCCPS #06-07

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Hassan v. Peel Regional Police Service, 2006 ONCPC 7

REASONS FOR DECISION

CONSTABLE AHMED ALI HASSAN

Appellant

PEEL REGIONAL POLICE SERVICE

Respondent

Presiding Members:

Murray Chitra, Chair

Sylvia Hudson, Vice Chair

Garth Goodhew, Member

Appearances:

Ms. Julie Stanchieri, Counsel for the Appellant

Mr. Andrew Heal, Counsel for the Respondent

Hearing Date: Friday, June 30, 2006

This is an appeal by Ahmed Hassan from a penalty imposed on May 30, 2005 by Superintendent Roman Boychuk (the “Hearing Officer”) following findings of guilt on three counts of misconduct.

Two of these disciplinary convictions arose from pleas of guilt to allegations of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at O. Reg. 123/98 (the “Code”). The third conviction was for corrupt practice contrary to 2(1)(f)(v) of the Code imposed following a hearing.

The penalty in question is dismissal in the absence of resignation within seven days.

Background:

Ahmed Ali Hassan joined the Peel Regional Police Service (the “Service”) in September of 2000. Prior to that he had served four years as a member of the Waterloo Regional Police Service.

Ahmed Hassan was deployed by the Service as a uniform patrol officer with the rank of first-class constable. His performance was satisfactory. Constable Hassan was notable in that he was the Service’s only officer of Somali heritage. His picture was featured on the Service’s recruitment poster.

The facts giving rise to the matters before us took place while Constable Hassan was on extended leave. On January 25, 2002 he flew into Lester B. Pearson International Airport aboard a KLM flight with his two young children (ages two and four). They were travelling from Kenya via Amsterdam.

While clearing Canadian Customs, Constable Hassan was flagged for luggage inspection. He identified himself to Custom’s officials as a Peel police officer. Later, at a secondary inspection Constable Hassan produced his police identification and indicated that he was in a rush because he “had to get to work by 5 p.m. in order to get his gun”. Constable Hassan was not scheduled to return to work until February 7th.

The inspection proceeded. Constable Hassan was observed transferring a package from a bag that had not been inspected to one that had. When confronted, Constable Hassan asked the Customs officer: “Am I going to get in trouble for the khat?” A subsequent search of the already inspected bag revealed 219 grams of the illegal drug Cathinone (“khat”) valued at approximately

$100.

Constable Hassan was arrested. When questioned, he claimed that the khat must have been placed in his luggage by an individual named “Mohammed” whom he met in Amsterdam and who was seated in 28H on the same flight. Subsequent inquiries concluded that there was no one by the name of “Mohammed” seated in 28H or anywhere else on the plane.

Constable Hassan was charged by the Royal Canadian Mounted Police with two counts of importing a controlled substance contrary to the Controlled Drugs and Substances Act 1996, c.19. On August 11, 2003, he appeared before Justice Durno of the Ontario Superior Court of Justice and pled guilty to the included offence of possession of a controlled substance. The other charge was withdrawn. Constable Hassan subsequently received a conditional discharge with probation for 12 months.

Constable Hassan was charged with five counts of disciplinary misconduct. On August 3, 2004 he appeared before the Hearing Officer and pled guilty to two allegations of discreditable conduct. One count related to the importation of khat. The second arose from the finding of guilt for the criminal offence before Mr. Justice Durno. Charges of deceit and neglect of duty were withdrawn.

A disciplinary hearing into the remaining charge of corrupt practice was commenced. This hearing focused on the allegation that Constable Hassan had

identified himself to Customs officials as a police officer “in order to effect a personal advantage”. On October 29, 2004 the Hearing Officer found Constable Hassan guilty of this allegation.

Detailed evidence and submissions were called on the matter of penalty over the course of a number of days. This included 13 witnesses who spoke in support of Constable Hassan. Most testified to his reputation in both the Somali and Muslim communities. A number of letters of a similar nature were received as exhibits.

On May 30, 2005 the Hearing Officer directed that Constable Hassan be dismissed unless he resigned within seven days. It is this penalty that is the subject of this appeal.

Appellant’s Position:

Ms. Julie Stanchieri, Counsel for the Appellant, challenges the Hearing Officer's penalty decision. Specifically, she argued that the Hearing Officer:

1. imposed a penalty that was unduly harsh given the totality of the circumstances;

2. submitted his own opinion with respect to damage to the reputation of the police force in the absence of direct evidence;

3. gave improper weight to several mitigating and aggravating factors;

and

4. erred in placing undue weight on deterrence without properly considering the possibility of rehabilitation.

On the first point Ms. Stanchieri noted that Constable Hassan acknowledges that his misconduct was serious and warranted penalty, but suggested that dismissal was excessive.

She asserted that the penalty of dismissal must be reserved for the most serious offences and that not every case where a police officer uses his or her position for private advantage would fit that description. On this point she drew our attention to Welch and Metropolitan Toronto Police (1986), 2 O.P.R. 738 (O.C.C.P.S.).

Ms. Stanchieri argued that there is no sentencing precedent for the facts of this case. However, Ms. Stanchieri suggested that useful comparators might be found in impaired driving disciplinary decisions. This included the cases of Sergeant Patterson, a Peel officer and Kenney and Ontario Provincial Police (12

July, 2004, O.C.C.P.S.). Both resulted in demotions.

As well, she drew our attention to a number of disciplinary decisions involving “dishonesty” that resulted in penalties less than dismissal. This included Aujla and Ontario Provincial Police (1997), 3 O.P.R. 1152 (O.C.C.P.S.), Guenette and Ottawa-Carleton Regional Police Service (1998), 3 O.P.R. 1305 (O.C.C.P.S.) and Gregg and Midland Police Service (2001) 3 O.P.R. 1522 (O.C.C.P.S.).

Ms. Stanchieri argued that the Hearing Officer erred in comparing Constable

Hassan’s situation to those in Williams and Ontario Provincial Police (1995), 2

O.P.R. 1047 (O.C.C.P.S.). She asserted that unlike Williams there was no harm to anyone due to the actions of Constable Hassan.

On the second point, Ms. Stanchieri submitted that while it was true that Constable Hassan’s misconduct was “reprehensible”, there was no direct evidence before the Hearing Officer of any damage to the reputation of the police force. Ms. Stanchieri acknowledged that, because of Constable Hassan’s action, the Service was required to remove his picture from their recruitment posters at some expense. However, she suggested that this, in and of itself, did not give rise to irreparable damage of the police force’s reputation.

On the third issue, Ms. Stanchieri argued that the Hearing Officer did not give sufficient weight to several mitigating factors. These included Constable Hassan’s positive character references, the support of his community, the fact that khat is “a less serious type of drug”, the minor nature the penalty imposed upon him in criminal court (i.e. conditional discharge) and his unique status as the Service’s (and possibly Ontario’s) only police officer of Somali heritage.

Ms. Stanchieri drew our attention to Sergeant Willets’ evidence that Constable Hassan was a “highly moralistic, religious, and honest man”. She argued that the Hearing Officer improperly rejected this evidence when he found that Sergeant Willets did not know all the facts of the case. She pointed to other positive employee performance appraisals from Waterloo Regional Police Service and awards from the Service for outstanding performance in May and October of

As well, Ms. Stanchieri suggested that the Hearing Officer failed to give proper consideration to Constable Hassan’s demonstrated remorse. This included his guilty pleas and apology during criminal sentencing.

Further, she argued that the Hearing Officer misinterpreted Constable Hassan’s comment to the probation officer who prepared his pre-sentence report. These remarks were: “I’m not an angel, I’m a human being, and I do not deserve to be going through everything that I am”. Ms. Stanchieri argued that these comments were focused on the potential criminal penalty and should not have been taken as demonstrating a lack of regret for his actions.

Finally, Ms. Stanchieri argued that Constable Hassan’s potential usefulness to the Service was not extinguished, particularly given his ability to reach out to both the Somali and Muslim communities. Further, she suggested that his actions, while reprehensible and warranted both general and specific deterrence, did not demonstrate the “serious lack of moral judgment” necessary for dismissal.

Ms. Stanchieri concluded by asking that we reduce the penalty of dismissal to a two-year demotion.

Respondent’s Position:

Mr. Andrew J. Heal, Counsel for the Respondent, submitted that the Hearing

Officer made no error in imposing the penalty of dismissal.

Mr. Heal first addressed the appropriate standard of review. He pointed out that the Commission has repeatedly said that it conducts penalty appeals on a deferential standard. Mr. Heal directed our attention to Krug and Ottawa Police Service (21 January, 2003, O.C.C.P.S.), Williams and Ontario Provincial Police, Blackburn and Niagara Regional Police Service (26 August, 2003, O.C.C.P.S.) and Groot and Peel Regional Police Service (2002), 3 O.P.R. 1552 (O.C.C.P.S.).

Mr. Heal reminded us that the Commission should only intervene if the Hearing Officer made a manifest error, ignored conclusive relevant evidence, misunderstood evidence or drew erroneous conclusions from it.

Mr. Heal identified several factors to be taken into account when imposing penalty articulated by the Commission in prior decisions such as Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.), Quintieri and Toronto Police Service (2001), 3 O.P.R. 1509 (O.C.C.P.S.) and Mattison and Niagara Regional Police Service (1996) 3 O.P.R. 1117 (O.C.C.P.S.).

Mr. Heal submitted that the Hearing Officer had canvassed these factors, exercised his discretion in an appropriate manner and imposed a penalty within the acceptable range.

He suggested that the facts of this case were unique and the precedents identified by the Appellant could be readily distinguished. That being said, he argued that the Hearing Officer was correct in finding that Constable Hassan’s actions bore similar features to those in Williams and Ontario Provincial Police.

Mr. Heal argued that the Hearing Officer did not err in concluding that the reputation of the Service was seriously damaged by Constable Hassan’s actions. He pointed out that for the Service to effectively police Peel it must have collegial working relationships with both Canada Customs and the R.C.M.P. Constable Hassan’s conduct impaired these relationships.

Further, the Service featured Constable Hassan on its recruitment posters as “an ideal police officer”. His arrest for importing a controlled substance and the resulting public criminal proceedings caused the Service both embarrassment and disgrace. It was obliged to replace these posters at substantial cost.

Mr. Heal acknowledged the positive character evidence presented at the disciplinary hearing on Constable Hassan’s behalf. However, he asserted that the Hearing Officer was correct in concluding that the witnesses who appeared were only vaguely aware of the circumstances giving rise to the disciplinary charges and were not in a position to speak to the essential question of Constable Hassan’s future potential “usefulness to the Service”.

Mr. Heal argued that the Hearing Officer gave appropriate weight to the various mitigating and aggravating factors. Mr. Heal submitted that in terms of remorse, the Hearing Officer acknowledged Constable Hassan’s pleas of guilt, but he was not convinced that Hassan “appreciates the seriousness of his misconduct …” He noted that at no time has Constable Hassan expressed remorse for his conduct to the Service.

Mr. Heal submitted that the Hearing Officer put Constable Hassan’s conduct into context and determined that it was not a momentary lapse of judgment but rather deliberate action. There was no provocation. In addition, Mr. Heal noted that the Hearing Officer felt that Constable Hassan placed his two children at risk.

On the final issue, Mr. Heal submitted that the Hearing Officer did not place undue weight on deterrence with insufficient regard for the possibility of rehabilitation. Mr. Heal argued that the Hearing Officer acknowledged that the ability to rehabilitate and reform an officer is an important consideration when any penalty is considered. However, Mr. Heal suggested that rehabilitation could only occur when a person acknowledges his or her “wrongdoing”.

Mr. Heal drew our attention to the fact that in the first instance Constable Hassan did not admit or take responsibility for his “wrongdoing”; rather he blamed an imaginary fellow passenger named “Mohammed”. He asserted that this, in the Hearing Officer’s opinion combined with the use of his police badge for “personal advantage” increased the seriousness of the offence.

Mr. Heal argued that given the circumstances, dismissal was the only option. He concluded by requesting that we dismiss the appeal and confirm the decision of the Hearing Officer.

Decision:

Constable Hassan has been found guilty of three counts of misconduct. These findings are not in dispute. The only issue before us is the appropriateness of the penalty imposed by the Hearing Officer.

The factors to be taken into account by a hearing officer when assessing a suitable disciplinary penalty are well known. In Williams and Ontario Provincial Police this Commission identified three key elements. 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 service that would occur if the officer remained on the force.

In cases of potential dismissal a hearing officer must examine these factors in the context of the officers’ possible continuing “usefulness” to the service. See Guenette and Ottawa Police Service.

Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach. Other factors can be relevant, either mitigating or aggravating a penalty, depending on the 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 considerations.

In addition, when imposing a 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.

Our function in a disciplinary appeal is different. It is not to second-guess the hearing officer or substitute our own opinion. Rather, it is to assess whether or not the hearing officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is a manifest error in principle or the proper factors are ignored, we may vary the disposition. This is not lightly done.

How then do these principles apply to this case?

The disciplinary proceedings against Constable Hassan took place over the course of several months. At the end the Hearing Officer produced a penalty decision of some 15 pages. In that decision the Hearing Officer clearly identified the above-noted disposition factors and addressed each in return.

The Hearing Officer assessed Constable Hassan’s conduct as being serious in nature warranting substantial penalty. This is not disputed.

The Hearing Officer found that “Constable Hassan’s misconduct, viewed in its totality, is made more serious in that it reveals serious ethical impropriety on more than one level, and is further aggravated by the fact that it resulted from a conscious and deliberate series of actions. It is not misconduct that can be characterized as momentary in nature …” We would certainly agree.

On the question of possible damage to the reputation of the force, the Hearing Officer identified two considerations. The first was the public embarrassment to the Service caused by Constable Hassan’s actions. He also mentioned the impact of this conduct on the reputation of the Service with other law enforcement agencies. It is asserted that there was no direct evidence before the Hearing Officer to support such findings.

On this latter issue, it is worth noting that Constable Hassan pled guilty to two counts of discreditable conduct (i.e. “acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force.”) As such, he has acknowledged that his conduct brought discredit to the Service.

On this point some assistance can be found in Girard v. Delaney (1995), 2 P.L.R.

337 (Ont. Bd. Inq.). This case deals with the test to be applied when determining whether particular conduct on the part of a police officer is likely to bring discredit to the reputation of a police service.

Page 349 of that decision states:

1. The test is primarily an objective one.

2. The Board must measure the conduct of the officer by the reasonable expectations of the community.

3. In determining the reasonable expectations of the community, the Board may use its own judgment, in the absence of evidence as to what the reasonable expectations are. The Board must place itself in the position of the reasonable person in the community, dispassionate and fully appraised of the circumstances of the case.

4. In applying this standard the Board should consider not only the immediate facts surrounding the case but also any applicable rules and regulations in force at the time.

5. Because of the objective nature of the test, the subjective element of good faith (referred to in the Shockness case) is an appropriate consideration where the officer is required by the circumstances to exercise discretion.

Given the above, we see no reason why a hearing officer, in the absence of direct evidence, may not place himself in the position of a reasonable person in the community for the purpose of assessing the degree to which the conduct of an officer has brought harm to the reputation of a police force and the extent to which that harm were to continue if an officer were to remain employed.

The facts of this case are egregious. Constable Hassan, in the presence of his two minor children, was arrested and charged with importing a controlled substance. He was found guilty of a criminal offence. Constable Hassan’s face was prominent on his Service’s recruitment posters. He was well known in his community as a police officer. There seems little question that his conduct could only bring serious public harm to the reputation of the Service.

Further, Lester B. Pearson International Airport is in the jurisdiction policed by the Service. Peel officers are required to work with Customs Officials and the RCMP on a daily basis on many common law enforcement concerns.

It is evident that on the date in question, Constable Hassan attempted on two occasions to invoke his status as a police officer to avoid Customs scrutiny. He told Customs officials that he had to get to work even though he was not scheduled to be on duty for several days. He attempted to conceal contraband by switching bags. He fabricated an explanation for the drugs in his possession and caused an unnecessary search for “Mohammed”.

Given the above, it certainly does not seem to us unreasonable for the Hearing Officer to note the potential negative impact of Constable Hassan’s conduct on the ongoing working relationship between the Service, Customs and the RCMP, particularly if he were to remain employed.

Appellant’s Counsel argued that the Hearing Officer erred by imposing a penalty that is unduly harsh and gave insufficient weight to several mitigating factors.

In his decision the Hearing Officer reviewed Constable Hassan’s employment history. He acknowledged both his positive work history and comments of his immediate supervisor, Sergeant Willets. However, the Hearing Officer noted the relatively short nature of his employment with the Service (16 months).

The Hearing Officer indicated that there were no issues relating to employer approach, provocation or handicap. He stated that from his perspective specific deterrence was not a factor. Rather, he found that given the unprecedented nature of the conduct general deterrence was relevant given that “the public and the Service have a right to expect that police officers will not abuse the position of their office for personal advantage … [and] the penalty imposed must be strong enough to send a clear message that such conduct will not be tolerated.”

All of the above findings are certainly reasonable.

On the question of recognition of the seriousness of the misconduct, the Hearing Officer acknowledged Constable Hassan’s guilty plea in criminal court and on the two counts of discreditable conduct. He found that he was “worthy of some mitigation based on his plea, but … I am not entirely convinced that he truly

appreciates and acknowledges the overall seriousness of his conduct in all its aspects.”

The Hearing Officer correctly stated that the question of the ability to reform or rehabilitate an officer is a key factor to be taken into account when assessing penalty. He noted the many positive character references made on Constable Hassan’s behalf by members of the Somali and Muslim communities and his stature with those groups. However, he expressed concern that “the witnesses who testified also candidly admitted that they were not aware of all of the facts of the case and that some of their assessments were based on rumours circulating with the community ... ”

He then concluded by stating: “The mitigating factors of a previously unblemished (but relatively short) career, the guilty pleas to the counts of discreditable conduct and his positive contributions to the Somali and Muslim communities are outweighed by the egregious nature of his misconduct and under all of the circumstances, I do not believe that rehabilitation and reform are amenable options”.

He then went on to state that police officers must not abuse their position of authority for personal advantage and as such, “officers who engage in such behaviour must clearly understand in no uncertain terms that this type of conduct will not be condoned and will be subject to the strongest of sanctions”.

To our mind this is both a reasonable and fair balancing of the relevant considerations. Certainly, in our view it cannot be said to show a lack of appreciation of the essential considerations or balancing these factors in a manner that can be said to rise to the level of manifest error.

Constable Hassan is a junior officer who knowingly committed serious misconduct. He did so in the presence of his minor children and in the jurisdiction where he was employed. He lied to fellow law enforcement officials. In order to avoid detection he on more than one occasion invoked his status as a police officer and displayed the symbols of his office. He blamed the drugs in his possession on a fictional individual causing an unnecessary and prolonged investigation. Constable Hassan was found guilty in criminal court. All of the above was particularly difficult for the Service given that they had identified Constable Hassan as an “ideal officer” and featured him on recruitment posters.

Constable Hassan was found guilty of three counts of misconduct. One of the allegations was for corrupt practice. This is one of the most serious charges in the Code, and represents a substantial breach of trust both with the public and the Service.

In light of the above, and in the absence of cases of a similar nature, it was certainly open to the Hearing Officer to conclude that the appropriate penalty was

dismissal. Accordingly, we dismiss the appeal and confirm the decision of the

Hearing Officer.

DATED AT TORONTO THIS 8TH DAY OF SEPTEMBER, 2006.

Murray Chitra

Sylvia Hudson

Garth Goodhew

Chair

Vice Chair

Member