OCCPS #06-02
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
CONSTABLE STEVEN CARSON
Appellant
PEMBROKE POLICE SERVICE
Respondent
Presiding Members:
Murray Chitra, Chair
Sylvia Hudson, Vice Chair
David Edwards, Member
Appearances:
Ian Roland, Counsel for the Appellant
Lynda A. Bordeleau, Counsel for the Respondent
Hearing Date: January 31, 2006
This is an appeal from a penalty of immediate dismissal imposed on Constable Steven Carson by Superintendent (retired) Robert J. Fitches (the “Hearing Officer”) on June 16th, 2005.
The penalty in question followed a finding of guilt on March 9th, 2005 for three counts of discreditable conduct contrary to section 2(1)(a)(ix) of the Code of Conduct found at Regulation 123, R.R.O. 1998 (the “Code”).
Background:
The facts giving rise to this appeal are complex.
Steven Carson is 42 years old. He started his career as a police cadet with the Toronto Police Service. After serving for four years as a police constable in Toronto, he transferred his employment to the Pembroke Police Service in February of 1989.
Constable Carson’s employment record was satisfactory until the spring of 1999. His evaluation reports described him as a good officer. He had no disciplinary history.
First Criminal Proceeding
On May 17, 1999 Constable Carson was charged with the offense of threatening contrary to section 264.1(1)(a) of the Criminal Code. He was suspended from duty. He remains so to this day.
This charge arose from a death threat that Constable Carson made to his former spouse’s boyfriend following an incident with his stepdaughter. While in uniform and wearing his sidearm, Constable Carson uttered words to the effect: “if you ever go near my daughter I will kill you, do you understand me, I will kill you.”
On March 2, 2000 Constable Carson was convicted of threatening by the Honourable Justice D. Dempsey. On May 3, 2000 Justice Dempsey suspended Constable Carson’s sentence and placed him on probation for 18 months.
As a result of the above, disciplinary proceedings were initiated against Constable Carson. He was demoted to fourth-class constable. That penalty was subsequently reduced by this Commission to demotion to second-class constable for a period of one year.1
Second Criminal Proceeding
The events giving rise to this appeal occurred in December of 1999 and January of 2000. This was while Constable Carson was both under suspension and awaiting his trial for threatening. They arose from a personal relationship that Constable Carson had developed with C2, a fellow police officer.
Constable Carson was charged with:
unlawful confinement contrary to section 279(2) of the Criminal Code;
assault contrary to section 266 of the Criminal Code; and
two counts of failing to comply with conditions contrary to section 145(3) of the Criminal Code.
On December 5, 2002 the Honourable Justice G Valin found Constable Carson guilty and convicted him for the assault and two counts of failing to comply. The forcible entry and unlawful confinement charges were dismissed.
Justice Valin determined that the appropriate sentence for Constable Carson would be six months imprisonment for the assault and two months consecutive for each of the failures to comply. However, given that Constable Carson had spent five months in pretrial custody, Justice Valin credited him with having served ten months imprisonment. As a result, he imposed a nominal sentence of one-day imprisonment and twelve months probation.
Constable Carson appealed the convictions for the assault and one breach of recognizance. As well, he appealed the sentences imposed on all three charges. On April 16, 2004 the Ontario Court of Appeal confirmed the findings of guilt for the two charges in question. However, the Court allowed the appeal against sentence, set aside the convictions and substituted a conditional discharge with probation for twelve months.
A subsequent application by Constable Carson for Leave to Appeal to the
Supreme Court of Canada was dismissed.
Disciplinary Allegations
As a result of the above, Constable Carson was charged on April 10th, 2003 with three counts of the disciplinary offence of discreditable conduct.
The particulars of the allegations against Constable Carson read as follows:
- On December 5th, 2002, Mr. Justice Valin found Constable Steven Carson guilty of the offense of Assault. The Assault took place on December 12, 1999 against [C] … in her home … in Pembroke Ontario.
Mr. Justice Valin found Cst. Carson guilty of assault “by reason of his conduct in forcibly removing the complainant from the bottom of the stairs, carrying her upstairs, dumping her on the bed and restraining her there, all of which occurred against the will of the complainant.”
- Following Cst. Carson's arrest in December of 1999, he was released from custody on a recognizance of bail. One of the specified terms of the release was that he abstain from communication or association directly or indirectly with [C] … except through legal counsel.
Cst. Carson was found guilty of a breach of that term of his recognizance. Cst. Carson and [C] … encountered one another on a street in the city of Pembroke on January 12, 2000. There was a conversation wherein Cst. Carson spoke to [C] … He admitted to having done so.
- Following Cst. Carson's arrest in December of 1999, he was released from custody on a recognizance of bail. One of the specified terms of the release was that he abstain from communication or association directly or indirectly with [C] … except through legal counsel.
Cst. Carson was found guilty of a second breach of the terms of his recognizance that prohibited him from communicating with [C] ... On January 14th, 2000 he contacted [C] … at the Pembroke Police station by telephone and engaged her in a conversation. He admitted to having done so.
A copy of a Notice of Hearing was served on Constable Carson on April 16th,
That Notice of Hearing directed Constable Carson to appear before the Hearing Officer on May 12th, 2003. As well, it contained the following statement: “Pursuant to Section 68(6) of the Police Services Act, the penalty of demotion or dismissal may be imposed if the misconduct is proved on clear and convincing evidence.”
The Hearing:
The hearing was held on March 9th, 2005. Following the reading of the charges, Constable Carson entered pleas of guilt to all three counts.
The prosecution then introduced a number of exhibits. These included documents and court decisions relating to Constable Carson’s various criminal proceedings. A volume of newspaper articles was introduced to show the extent to which these events generated local media attention.
The Prosecutor read into the record portions of the April 16, 2004 decision of the Ontario Court of Appeal as the most succinct summary of the facts in question. The Court of Appeal noted:
This case arises from a series of altercations between the applicant and his then fiancée on the night of December 11, 1999. The background facts are somewhat unusual.
The appellant and the complainant are both police officers on the same police force in Pembroke, Ontario. In the months preceding the relevant incidents, they were involved in a domestic relationship and had been living together in the complainant's home. They had also become engaged to be married. However, the relationship was fragile and at times appears to have been turbulent.
In May 1999, the appellant was suspended from work and subsequently charged with uttering threats against his former wife's boyfriend. At about the same time, the complainant took a three- month leave of absence from work due to stress. During this period, both parties increased their consumption of alcohol beyond the levels that previously had been normal for them. Sometime in late summer or early fall of 1999, when the complainant read the Crown disclosure brief relating to the threatening charge against the appellant, she became very upset and the relationship between the parties deteriorated. This culminated in a request by the
complainant in early November 1999 that the appellant move out of her house. Although the appellant did so, he continued to see the complainant and, on occasion, to spend the night with her at her home.
On the night of December 7, 1999 the appellant and the complainant became involved in a lengthy argument while at the complainant's house. The complainant had been drinking heavily earlier in the evening and, during the course of the argument, she struck the appellant in the face and head several times, injuring her hand in the process. When the appellant obtained a bag of ice for her hand, the complainant struck him in the face with it and kicked him in the lower back with her foot. The appellant did not retaliate. Instead, he left the complainant's home and returned to his parents’ home.
The appellant and the complainant saw each other socially on
December 10, 1999 and again during the afternoon on December
11, 1999. Both occasions were uneventful.
On the evening of December 11, 1999, the appellant and the complainant went out to dinner with two other couples. The complainant again consumed large quantities of alcohol. Nothing untoward happened during the dinner or subsequently, when all three couples returned to the complainant's house for a nightcap. When the other two couples left the complainant's house at about
11:30 p.m., the complainant and the appellant went to bed, intending to spend the night together. However, they again became involved in an argument, which caused the appellant to get dressed and leave the complainant's house. After a short time, the appellant changed his mind and returned.
When the appellant arrived at the complainant's house, he knocked loudly on the door. The complainant came downstairs and unlocked the door. She alleged that the appellant then forced his way into the house. A physical confrontation ensued in the hallway and the
kitchen. The complainant claimed that the appellant pushed her onto the floor and, when he decided that she should go to bed, attempted to force her upstairs. The complainant vigorously resisted by sitting down on the floor, grasping the handrail of the staircase leading to the bedroom, and positioning herself between the wall and the banister so that the appellant was prevented from moving her. The complainant testified that she pushed her head
back so far that she dented the wall with her head. She alleged that the appellant persisted notwithstanding her efforts to resist him and that, ultimately, he succeeded in picking her up and taking her upstairs. According to the complainant, the fighting continued once they were in the bedroom. She said that the appellant threw her on the bed onto her back and then straddled her by sitting on top of
her chest. She stated that the appellant then attempted to choke her and to smother her with a pillow while forcibly confining her in the bedroom.
The appellant presented a starkly different version of events in his trial testimony.
The appellant acknowledged returning to the complainant's house after their argument but said that the complainant led him into the house without opposition. He claimed that in her inebriated state, she then assaulted him. After an altercation in the kitchen, the appellant told the complainant that she was drunk again and that she needed to sleep and to go upstairs and calm herself. He claimed that, thereafter he attempted to guide the complainant to the stairs, whereupon the complainant fell down on the floor at the foot of the staircase. She braced herself against the wall, grasped one of the handrails, and repeatedly smashed her head against the wall with sufficient force that the wall was damaged.
The appellant claimed that he continued in his attempts to take the complainant upstairs because he thought she was having a breakdown and feared that she would hurt herself if she continued to strike the wall with her head. He wanted her to calm down, to stop banging her head against the wall, and to refrain from striking him, as she had done a few nights earlier. He testified that when he picked the complainant up from the floor, she fought with him, clawing at his face and scratching his eye.
Eventually the appellant succeeded in carrying the complainant to her bedroom. He put her on the bed and, when she tried to continue fighting, he held her down on the bed, lying on top of her, to calm her down and to keep her from hitting him. He denied striking the complainant or attempting to choke or smother her. He
claimed that, at the time, he was in love with the complainant and was still engaged to marry her. He also said that when the
appellant rose from the bed, she swallowed a handful of pills. When the appellant attempted to remove them from her mouth, the complainant bit his fingers. Shortly thereafter, the complainant ran from the house to the neighbours, claiming that the appellant had assaulted her and attempted to choke and smother her.
As a result of these events, the appellant was charged with forcible entry, forcible confinement and assault. The complainant was not charged with any offence.
When the appellant was subsequently released on bail, the terms and conditions of his recognizance of bail required that he not communicate with the complainant, directly or indirectly. Contrary to this requirement, the appellant entered into a brief conversation
with the complainant on January 12, 2000 when he encountered her sitting in her parked car on the street. The complainant immediately reported the contact to a senior police officer on the police force. At trial the appellant maintained that the complainant was not on duty during this encounter.
The appellant alleged that the complainant lured him into this contact by rolling down the window of her car, initiating a conversation with him and inviting further discussion. He also claimed that on other occasions the complainant had tried unsuccessfully in various ways to involve him in a breach of his recognizance, including parking her police cruiser at work in a place that required the appellant to pass her on his way into the police station, driving to his parents’ home and pulling her vehicle into
their driveway, and driving past the appellant on the street when he was walking his dog.
Within days of this discussion with the complainant on the street, the appellant telephoned her at work, claiming to be someone else in order to speak with her. This incident gave rise to the second breach of recognizance charge against the appellant. He did not appeal his conviction on that charge.
The Court of Appeal in deciding to set aside the convictions concluded:
In fashioning an appropriate sentence in this case, it is important
that the totality of the circumstances and the full context of events on the night in question be considered. In our view, the trial judge erred by failing to do so.
The trial judge found that the complainant inflicted serious injury on the appellant. In contrast, the injuries to the complainant were minor. These findings support the appellant's version of the full sequence of events leading up to and following the assault on the staircase.
The trial judge also made serious adverse findings concerning the complainant's credibility. In acquitting the appellant of the forcible entry and forcible confinement charges, the trial judge rejected the complainant’s evidence concerning many of the key events in question. In addition, and significantly, the trial judge rejected the complainant's claim that she was assaulted by the appellant in the hallway of her home, in the kitchen and in the bedroom. Indeed, in connection with the altercation in the bedroom, the trial judge held that the complainant was the aggressor.
The trial judge also held that on a number of prior occasions when the appellant was assaulted by the complainant, he did not retaliate but, rather, walked away. On this occasion, the trial judge found
that the complainant was intoxicated and was behaving somewhat irrationally. That finding is supported by the complainant’s conduct in persistently banging her head against the wall and by her aggression against the appellant in the bedroom.
The trial judge correctly observed that there is a societal interest in seeking to deter domestic violence and to protect the victims of domestic violence. In this case, however, the trial judge also found that the appellant was a victim of domestic violence.
The sentencing judge rejected certain of the Crown’s submissions concerning sentence on the basis that they would have an unnecessarily harsh impact on the appellant's prospects to continue his employment as a police officer. This is a legitimate factor,
among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer.
When the unique circumstances of this case are considered, we do not agree that a sentence of incarceration was warranted. The trial judge reasons do not suggest that there is a need for specific deterrence and the entry of a conviction against the appellant on
the charges at issue on this appeal may have significant negative repercussions for him. As well, the appellant has already served the equivalent of a 10-month custodial sentence. The courts have
recognized that in those unusual cases where the granting of some form of discharge is in the best interests of the accused and is not contrary to the public interest, sentencing relief is available… This is such a case.
The prosecution also introduced into evidence the Reasons for Judgment and the Reasons for Sentence of Justice Dempsey with respect to the 2000 threatening conviction.
During the sentencing phase of the hearing, the defence filed a number of exhibits relating to Constable Carson’s employment history, character and educational accomplishments. As well, eleven witnesses testified to Constable Carson’s character. These included two ministers, a probation and parole officer, former police colleagues, educational officials and family friends.
The Penalty
The Hearing Officer delivered his penalty decision on June 16, 2005. In his judgment he summarized the submissions of both the prosecution and the defence.
The Hearing Officer described the conduct in question as being serious in nature. He acknowledged the testimony of the character witnesses and found that
evidence “not compelling in terms of Constable Carson’s suitability as a police officer, bearing in mind the serious and protracted nature of his conduct”.
He noted the public must have confidence that its police services and its police officers will not engage in criminal activity. Further, he stated at page 9 of his decision:
Even more important than the public's confidence that criminal conduct will not occur, the community must at the very least have extraordinary and unwavering confidence that criminal conduct, if repeated, will be treated in the most serious way possible by the employer; that additional or further transgressions will [not] be tolerated under any circumstances whatsoever; that there will be no tolerance for behaviour or conduct that seems to flaunt the rule of law and in some ways mock the judicial system.
The Hearing Officer concluded that the misconduct constituted a series of criminal acts that were indications of recurring misconduct.
The Hearing Officer noted that Constable Carson had entered pleas of guilt to the allegations and recognized this as a mitigating factor. He further noted Constable Carson’s personal file reflected a high level of excellence and was a
mitigating factor, but one that was not sufficient to change the disposition of the matter.
The Hearing Officer noted that a handicap or other similar condition was not present nor a factor.
The Hearing Officer stated that the potential for rehabilitation or reform is an important factor to be taken into consideration when deciding upon the appropriate disposition of the matter. At page 11 of his decision he expressed grave reservations about Constable Carson’s credibility should he return to duty:
Therein lays the root of my concerns. When these allegations and Constable Carson's criminal and disciplinary record arise during cross examination by defence counsel, Constable Carson's evidence will be called into question, as will, by association, the employer's reputation. This reality will, at a minimum, severely restrict Constable Carson's effectiveness, and at worst, it might destroy it. Additionally and perhaps even more tragically, the reputation of the Pembroke Police Service would be brought into this significant disrepute should this officer remain a member of the service.
The Hearing Officer observed that the testimony of the character witnesses indicated to him that Constable Carson is a good and decent man with many positive attributes. He acknowledged that Constable Carson had suffered financially and otherwise as a result of the allegations. However, he noted that in order to take the personal situation into account, he would have to have “some latitude in the disposition”, which he believed that he did not.
The Hearing Officer considered the principle of consistency in disposition and concluded that based upon the facts of this matter his decision as to penalty was consistent with other decided cases.
On the issue of specific and general deterrence, the Hearing Officer observed at page 13 of his decision that Constable Carson’s conduct must be dealt with severely:
In the past, a criminal conviction has not necessarily resulted in dismissal. This is for good and valid reasons, bearing in mind the various disposition considerations that have evolved over time. Multiple convictions, however, move well beyond an acceptable standard of conduct for any police officer anywhere. The Pembroke Police Service must be permitted to clearly demonstrate that in their opinion, conduct of this magnitude cannot and will not be tolerated. The reputation of the service and the public trust demands it.
The Hearing Officer dealt with the concept of the employer’s approach to misconduct in question and concluded that the record showed that the Pembroke Police Service had clear intention to treat such misconduct seriously.
The Hearing Officer also reviewed the principle of damage to the reputation of the police force and the effect of the publicity surrounding the misconduct and concluded that should Constable Carson remain a member of the Pembroke Police Service, the “organization would suffer irreparable harm”.
As a consequence, the Hearing Officer imposed the penalty of immediate dismissal.
Appellant’s Position:
Mr. Roland challenged a number of aspects of the Hearing Officer’s decision. He asserted that the Commission may interfere with the penalty decision of a
hearing officer where a hearing officer made an error in principle or applied the
wrong principle; the penalty failed to achieve a proper balance among the factors to be considered or failed to fully appreciate the importance of certain mitigating factors or gave insufficient weight to the mitigating factors; or the penalty
imposed was unreasonable or excessively harsh.
Mr. Roland asserted that the Hearing Officer failed to take into account the relevant considerations when he imposed a penalty reserved for the most serious or egregious cases. Cate and Peel Regional Police Service (1998), 3 O.P.R.
1257 (O.C.C.P.S.), Sack and Ontario Provincial Police (1987), 2 O.P.R. 784 (O.P.C.), 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. Roland argued that the Hearing Officer erred by exaggerating and mischaracterizing the seriousness of the misconduct and ignored relevant evidence. He drew our attention to specific portions of the criminal record to note that:
- C had a black belt in karate and had a history of assaulting
Constable Carson;
C had never been charged criminally with respect to such conduct;
Constable Carson had not retaliated to C’s prior assaults;
Constable Carson was merely trying to protect C from harming herself by banging her head when he picked her up and moved her to her bedroom;
While in the bedroom C had struck Constable Carson with a mason jar in the face requiring six stitches; and
The Trial judge had rejected significant portions of C’s evidence
He asserted that the Hearing Officer ignored or misapprehended the findings of the Court of Appeal and in particular the fact that the Court of Appeal set aside the convictions and substituted in their stead findings of guilt, and a conditional discharge.
In particular, Mr. Roland asserted that the convictions were set aside by the Court of Appeal specifically so as not to preclude Constable Carson’s continued employment as a police officer. He argued that the Hearing Officer ignored this important conclusion of Ontario’s highest Court.
Mr. Roland asserted that the Hearing Officer erred in principle by concluding that two incidents of criminal misconduct resulted in an automatic dismissal and he contrasted that assertion with the decision of the Court of Appeal.
Mr. Roland argued that the Hearing Officer erred by concluding that Constable Carson’s misconduct “would cause momentous and appalling damage to the Service’s reputation” in the absence of such evidence and contrary to the testimony of numerous witnesses called on behalf of Constable Carson.
Mr. Roland asserted that the Hearing Officer failed to appropriately consider the evidence concerning the potential for Constable Carson’s reform and rehabilitation.
On these points he drew our attention to Gregg and Midland Police Service (2001), 3 O.P.R. 1522 (O.C.C.P.S.), Gulliver and Brantford Police Service (1997), 3 O.P.R 1175 (O.C.C.P.S.), Walker and Peel Regional Police Service
(2000), 3 O.P.R. 1425 (O.C.C.P.S.) and Guenette and Ottawa Carleton Regional
Police Service (1998) 3 O.P.R. 1305 (O.C.C.P.S.)
He further argued that the Hearing Officer erred by concluding that Constable Carson’s credibility as a witness would be called into question given that the Hearing Officer misunderstood the distinction between, and the different consequences of, a conviction versus a finding of guilt.
Mr. Roland also asserted that the Hearing Officer ignored the evidence with respect to specific and general deterrence by establishing a false choice between condoning or tolerating the violations on the one hand and dismissal on the other hand. On this point he noted that the Hearing Officer had stated that if Constable Carson were not dismissed, the employer would be seen as condoning the misconduct.
Finally, he suggested that the Hearing Officer viewed himself as an instrument of management and that this deference to management’s position was critical to his determination.
Mr. Roland requested that we overturn the penalty of immediate dismissal and impose in its place a period of demotion and direct some training to update Constable Carson’s skills.
Respondent’s Position:
Ms. Lynda Bordeleau, on behalf of the Service, argued that the penalty should stand.
Ms. Bordeleau 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. Quintieri and Toronto Police Service (2001), 3 O.P.R. 1509 (O.C.C.P.S.), Lewin and Toronto Police Service (2001), 3
O.P.R 1472 (O.C.C.P.S.), Allen and Hamilton-Wentworth Police Service (1995),
2 O.P.R. 1001 (O.C.C.P.S.)
Ms. Bordeleau noted the proper approach to the penalty of dismissal and that the test was whether the employee continued to be useful to the employer. Morden and Peel Regional Police Service (1997), 3 O.P.R. 1140 (O.C.C.P.S.), Re Trumbley et al. and Fleming et al. (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 (Ont. C.A.)
Ms. Bordeleau then drew our attention to the different purposes of criminal sentencing and a disciplinary penalty. R. v. Wigglesworth 1987 CanLII 41 (SCC), [1987] 2 S.C.R 541 (S.C.C.), Burnham and Metroplitan Toronto Police Association [1987] 2 S.C.R.
572 (S.C.C.), Godfrey and Ontario Police Commission (1991), 1991 CanLII 7115 (ON CTGD), 5 O.R. (3rd) 163 (Ont. Div. Ct.) and Armstrong v. Peel Regional Police Service [2003] O.J. No.
3437 (Ont. Div. Ct.)
She noted that the Hearing Officer properly understood the seriousness of the misconduct and cited Valois and Toronto Police Service (November, 23, 2003, O.C.C.P.S.) to support the position that the Hearing Officer’s references to “convictions” rather than absolute discharges were not proof of a misapprehension of the facts but rather “a misunderstanding of the term of art in criminal law”.
She noted that the Hearing Officer’s decision should be read as a whole and not subject to a microscopic examination. Law Society of New Brunswick v. Ryan [2003] S.C.R. 247 (S.C.C.), Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92 2004 SCC 23, [2004] 1 S.C.R. 609 (S.C.C.), Boulis v. Canada (Minister of Manpower Immigration) 1972 CanLII 4 (SCC), [1974] S.C.R. 875 (S.C.C.), Zellers Ltd. v. Royal Cobourg Centres Ltd. [2001] O.J. No. 3792 (Ont. Div. Ct.), Storey v. Ontario (Director, Disability Support Program) [2002] O.J. No. 1669 (Ont. Div.
Ct.) and Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301 (Ont. Div. Ct.)
Ms. Bordeleau argued that the Hearing Officer did not mischaracterize the seriousness of the misconduct and was entitled to consider a series of events to be more serious than a single isolated event. Williams and Ontario Provincial Police
Ms. Bordeleau noted the various portions of the Hearing Officer’s decision that she argued addressed the identified criterion for assessing penalty. In particular, she focused on the public interest and reputational considerations, evidence of reform and rehabilitation, specific and general deterrence and the employer’s approach to misconduct. She drew our attention to several cases bearing on these factors.
As well, Ms. Bordeleau highlighted the importance of recognizing the seriousness of domestic assaults.
Ms. Bordeleau concluded by requesting that we dismiss the appeal.
Decision:
A police officer who commits a crime is accountable. This accountability has different aspects.
The commission of a crime is a breach of a duty owed to the public. As such, it is punishable in criminal court. Where there is a victim involved, an officer is liable for damages in civil proceedings. As well, a police officer is accountable to his or her profession and employer. This occurs through the police disciplinary process.
All three processes are subject to different rules, burdens of proof and considerations. All result in different consequences.
Disciplinary hearings are administrative law proceedings of a labour relations nature. They are governed by the provisions of the Police Services Act R.S.O.
1990, c. P.15 as amended and the Code.
When a police officer has been found guilty of misconduct, a hearing officer must impose a penalty. These penalties range from reprimand to dismissal.
The factors to be taken into account when assessing a suitable penalty are well established. 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.
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 penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.
Our function in a disciplinary appeal 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.
In the case before us, the Hearing Officer delivered a detailed penalty decision of some fifteen pages. This decision properly identified the relevant penalty considerations and addressed each in turn.
We have reviewed this decision in detail. It is apparent to us that some of the language used by the Hearing Officer was unnecessarily strong. By this we refer to such phrases as: “no tolerance for behaviour or conduct that seems to flaunt the rule of law and in some ways to mock the judicial system”; “[t]he reputation of the service and the public trust demands it”; and “appalling damage to the Service’s reputation”.
In this regard, however, we are mindful of the principle reflected by the Ontario
Court of Justice in Galassi v. Hamilton (City) Police Services at paragraph 19:
In reviewing the reasons of a lay tribunal, the task of this Court is not to be overly critical of the language used, nor is it to focus on mistakes that do not affect the decision as a whole (Re Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2d) 1 (Ont. C.A.). This approach must be kept in mind when the reasons of the Hearing Officer are examined, as he is not legally trained.
This is the approach that we have adopted.
In his decision, the Hearing Officer properly identified the conduct in question as being contrary to the public interest, serious and warranting both deterrence and a significant penalty. This is certainly correct.
It is well established that police officers are subject to a higher standard of behaviour than members of the public. It is evident that police officers should not be breaching the law that they have a legal duty to enforce and are sworn to uphold.
Section 2(1)(a) of the Code states that a police officer commits discreditable conduct if he or she “is guilty of an indictable criminal offence or a criminal offence punishable on summary conviction”.
In his decision, the Hearing Officer, twice appears to postulate the view that a second instance of criminal conduct should result in dismissal. A more accurate statement of the principle would be that one isolated act of criminal wrongdoing may or may not result in a call for termination depending upon the nature of the wrongdoing and any mitigating circumstances. Further, criminal acts over a period of time may suggest however, that what is at question is more that isolated acts of human frailty or errors in judgment.
The evidence before the Hearing Officer disclosed that Constable Carson was in a turbulent personal relationship with a coworker. That relationship had clear undertones of domestic violence. Combating such violence is a priority of police services in Ontario.
Even accepting the unique circumstances of the assault, the facts of this case disclose that Constable Carson, breached a court ordered recognizance, not once but twice. Of particular concern, is the fact that one of these transgressions involved Constable Carson phoning the police station, his place of employment, to speak to C.
The Hearing Officer correctly acknowledged that prior to 1999, Constable Carson had a good employment record. However, in 2001 he received a one-year demotion to second-class constable following his conviction for the criminal offence of threatening. As noted earlier, this involved a death threat delivered while Constable Carson was in uniform and wearing his service revolver.
The Hearing Officer also properly noted that the conduct in question was not mitigated by clear evidence of handicap or improper management approach.
The Hearing Officer further acknowledged the fact that Constable Carson had pled guilty to the three disciplinary charges against him, offered positive character evidence and suffered personally as a result of the allegations.
However, the Hearing Officer appears to have concluded that these mitigating factors were insufficient to outweigh reservations arising from the nature and history of the offences in question. At the heart of this concern appears to have been grave reservations about Constable Carson’s potential for rehabilitation and continued usefulness as a police officer.
To our mind, the Hearing Officer appears to have overstated the impact of the findings of guilt on Constable Carson’s ability to testify in court proceedings.
Certainly, defence counsel could seek production of Constable Carson’s disciplinary record to attach his credibility as a witness. However, such requests are subject to the procedures established in R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3rd) 1 (S.C.C.).
Further, section 12 of the Canada Evidence Act R.S.C. 1985, Chap. C-5 as amended provides that any witness may be questioned as to whether or not they have been convicted of any offence. The original convictions in the case before us were overturned by the Ontario Court of Appeal. That is not the case with the earlier threatening charge.
That being said, there is little question that the facts of this case raise legitimate concerns about Constable Carson’s potential for rehabilitation.
It is striking that during the course of a ten-month period (May of 1999 to January, 2000) Constable Carson committed four criminal offences. This is not a case of a single act of human frailty. All reflect poor judgment and difficulty with personal control. These are serious impediments to successful employment as a police officer.
On this point, it also is worth noting that the offences in question took place while Constable Carson was under suspension and facing criminal charges for threatening. This appears to have made no difference in his choices.
As a result of his actions, Constable Carson was arrested, incarcerated for five months, subject to several years of very public criminal proceedings and served two periods of court ordered probation. The reputation of the Pembroke Police Service has clearly been discredited as a result of his continuing criminal conduct.
Taken as a whole, we are satisfied that it was open to the Hearing Officer to conclude that in the context of a labor relations proceeding that dismissal was a penalty properly available to him.
DATED AT TORONTO THIS 9TH DAY OF MARCH, 2006.
Murray W Chitra
Sylvia Hudson
David Edwards
Chair, OCCPS
Vice Chair, OCCPS
Member, OCCPS