OCCPS #06-04
ONTARIO CIVILIAN COMMISION ON POLICE SERVICES
Citation: Buks v. Durham Regional Police Service, 2006 ONCPC 4
REASONS FOR DECISION
CONSTABLE ULDIS BUKS
Appellant
DURHAM REGIONAL POLICE SERVICE
Respondent
Presiding Members:
David Edwards, Member
Biagio (Bill) Marra, Member
Appearances:
William R. MacKenzie, Counsel for the Appellant
Staff Inspector Brian Fazackerley, Counsel for Respondent
Hearing Date: Friday March 10, 2006
This is an appeal from a penalty imposed on August 16th 2005 by Superintendent
Robert J. Chapman (the "Hearing Officer") following a decision on March 21st
2005 of guilt on 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 a demotion to second-class constable for a period of six months.
Background:
At the time of the incident under appeal, Constable Buks was a first-class constable of the Durham Regional Police Service (the "Service") and had been a member of the Service for 16 years.
Until 1999, Constable Buks had no disciplinary history. In 1999, following an incident with Mr. A. E., Constable Buks received a disposition without a hearing. A lawsuit was also commenced by Mr. E. against the Service and Constable Buks, which was settled by a payment by the Service on a without prejudice basis.
In 2002, Constable Buks was assisting another police officer in an investigation into a motor vehicle collision in which J.H., the adult stepson of Mrs. S.H., was injured. Mrs. H. objected to the interview of her stepson in his hospital room.
Mrs. H. and Constable Buks left the hospital room and argued. Mrs. H. attempted to call her husband, but was unable to contact him. She spoke to his law partner and received advice. She returned to the room and demanded that the police officers leave.
This led to further argument with Constable Buks who warned her on a number of occasions if she wanted to be arrested for obstructing police. She responded a number of times by stating, "Go ahead and arrest me".
Ultimately Constable Buks did handcuff and place her in the police car and drove her to the station. The officer in charge recommended that he should release her unconditionally. He initially refused to do so, but a short time later, released her with a warning that she not return to the hospital.
As a result of his actions, Constable Buks was charged with one count of unlawful and unnecessary exercise of authority to which he pled guilty. The disposition included undertaking a second assessment by Doctor R. to determine whether psychotherapeutic counseling, previously recommended, was still warranted. It was recommended by Dr. R. that Constable Buks be required to undertake psychotherapeutic counseling, continue the Monitoring and Mentoring Program and attend the "Managing Emotions in the Workplace" seminar.
The facts giving rise to this appeal occurred on August 1, 2004. On August 1,
2004, while off duty and operating his personal motor vehicle in Oshawa, Constable Buks attempted to stop Mr. R.P. for an alleged driving offence. When Mr. P. finally stopped for a red traffic light at Centre and Wilham Streets, Constable Buks approached Mr. P.'s vehicle, and after a verbal interaction, ordered Mr. P. to park his vehicle in front of the police station and attend inside. Mr. P. complied and was issued a Provincial Offence Notice by Constable Buks for the Highway Traffic Act offence of Careless Driving. The discreditable conduct allegation centered on Constable Buks' driving and comments made to Mr. P.
A copy of a Notice of Hearing was served on Constable Buks on September 29,
- That Notice of Hearing directed Constable Buks to appear before the Hearing Officer on Wednesday October 6, 2004 at 11:00 a.m. to answer to this allegation. As well, it included the following statement, "You are hereby on notice, in accordance with subsection 68(6) of the Police Services Act, that the penalties of dismissal or demotion might be imposed if misconduct is proved on clear and convincing evidence."
Following a hearing, which included five witnesses and five exhibits, the Hearing Officer concluded that Constable Buks' comment, "if you decide to fight the charge, a dangerous driving charge could be laid" was made in an attempt to intimidate Mr. P. to plead guilty to the charge of Careless Driving and that in doing so, Constable Buks acted in a manner likely to bring discredit upon the
reputation of the police force, thereby committing the offence of discreditable conduct.
On August 16th 2006 the Hearing Officer imposed the penalty of demotion to second-class constable for a period of six months and requested, that "Constable Buks complete the counseling program developed as a joint submission in the H. matter and further ordered in the adjudication of Inspector Cameron of May 2nd
2003".
Appellant's Position:
Counsel for the appellant, Mr. William MacKenzie, challenged the decision of the Hearing Officer with respect to the penalty. Mr. MacKenzie describes the imposed penalty as "significant" and characterized it as "similar to a dismissal". Mr. MacKenzie stated that the penalty was harsh and excessive when one considered Constable Buks' employment history and in particular his previous 14 years with no prior disciplinary findings. Mr. Mackenzie asserted that the penalty imposed "did not fit the crime".
Mr. MacKenzie highlighted the fact that the finding of guilt on the discreditable conduct charge, related only to Constable Buks' comments at the Station and that he was not found guilty with respect to any other aspect of his conduct.
Constable Buks admitted making the statement in question ("if you decide to fight the charge a dangerous driving charge could be laid") following a heated exchange with Mr. P. Mr. MacKenzie described Constable Buks' comments as
an "ill timed and ill advised utterance".
Constable Buks felt that he possessed the authority to make said statement according to Mr. MacKenzie. Mr. MacKenzie suggested that had the Hearing Officer determined that Constable Buks' other interactions with Mr. P. also constituted misconduct, then, in conjunction with the utterance, a demotion would have been appropriate.
Mr. MacKenzie drew attention to the evidence of Sergeant Calder who was a witness to the incident. He suggested that an informal resolution approach should have been applied. He further suggested that Sergeant Calder's response to the incident supported this argument. Sergeant Calder testified he was disappointed with Constable Buks for making the comment and waited by the desk for Mr. P. to leave, before he addressed the matter with Constable Buks. He had a quick discussion with Constable Buks out of earshot of other employees.
Mr. MacKenzie acknowledged that it is not the role of the Commission to second- guess a hearing officer and that the Commission should not intercede unless a hearing officer erred in the application of the principles which apply to the establishment of the penalty. He submitted that the Hearing Officer erred in
principle when he failed to apply the principle of progressive discipline. In a system of progressive discipline, an employer is generally required to apply increasingly serious sanctions to employee's misconduct in an effort to correct the employee's behaviour. Galassi and Hamilton Police Service (2005) O.J. No.
2301 (Ont. Div. Ct.) and Mowers and Hamilton Wentworth Regional Police
Service (1999), 3 O.P.R. 1327 (O.C.C.P.S.)
Mr. MacKenzie drew our attention to disposition imposed on Constable Buks in the H. case. This arose from a joint submission for remedial rather than a
punitive action. The agreed upon penalty in the H. matter was in fact counseling. Mr. MacKenzie argued that to go from the imposition of a counseling order in the H. matter to a demotion in this matter was not consistent with the principles of progressive discipline.
Mr. MacKenzie argued that the misconduct before us is not of a "serious nature". He further suggested that the Hearing Officer erred when he suggested that Constable Buks' lack of knowledge and confidence increased the seriousness of the situation. Instead, Mr. MacKenzie argued that a training order should be considered for these issues (lack of knowledge and confidence). Mr. MacKenzie relied upon Blowes-Aybar and Toronto Police Service (7 March, 2003, O.C.C.P.S.) arguing that lack of knowledge and confidence is not a sentencing factor. In Blowes-Aybar the imposed penalty was a 4-day suspension for an unlawful/unnecessary arrest.
Mr. MacKenzie also argued that the Hearing Officer erred in imposing a penalty that did not adhere to the principles of consistency and fairness. Mr. MacKenzie concluded by stating that a forfeiture of 24 hours pay would be more in line with the principles of progressive discipline and consistency.
Respondent:
Staff Inspector Brian Fazackerley, Counsel for the Respondent, submitted that due to the seriousness of Constable Buks' misconduct, the imposed penalty was not unreasonable and was within the range of appropriate findings.
Staff Inspector Fazackerley first drew the panels' attention to page 5 of the Penalty Decision with Reasons, and, specifically the Hearing Officer's comments with respect to the seriousness of Constable Buks' actions:
Mr. MacKenzie may be correct in suggesting some may not consider the comment this matter is centered on to be "very" serious. However, the evidence provided regarding the circumstances surrounding the incident led me to find Constable Buks lacks knowledge and confidence in performing the duties of a police officer and this increases the seriousness. Although I agree
with Mr. MacKenzie that Mr. P. was found to be incredible in a number of areas, I disagree Constable Buks acted appropriately.
Staff Inspector Fazackerley argued these comments highlighted the serious nature of Constable Buks' actions and seriousness of the misconduct is one of the 13 aspects of sentencing that must be considered. Bowes-Aybar
Staff Inspector Fazackerley also commented on Sergeant Calder's response and role in this matter. He described Sergeant Calder's response as being
"imperfect" but argued that this should not be seen as a mitigating factor in assessing the penalty for this case.
Staff Inspector Fazackerley argued that the employment status between Constable Buks and the Service must be examined in the context of a "cradle to grave" relationship. He submitted that sentencing must include the Constable's employment record as a relevant factor, including the previous incident which was dealt with by way of a "non-punitive approach," as authorized in section
68(5) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the "Act"). He suggested that since Constable Buks "abandoned" the provisions of the agreed upon resolution, the sentencing of this matter must consider it.
He drew our attention to the following clause from his Factum (page 7 section
10): "The penalty determination stage in a police misconduct matter is not in the nature of a criminal sentencing proceeding, but forms part of a larger, ongoing employment process. The Appellant's quote cannot touch primary argument that the "punishment must fit the crime" is inapt, to the extent that it implies recourse should be had to narrow criminal law sentencing principles. The entire employment history is always relevant and properly considered by a Hearing Officer in this venue".
Staff Inspector Fazackerley argued that the Hearing Officer took careful consideration of appropriate factors for the assessed penalty. He stated that this was not a case of "zero to nothing" when considering Constable Buks' employment history. He stated that while consistency in sentencing in comparable situations is important, it is also recognized that local employment factors and priorities differ among police services. Staff Inspector Fazackerley relied on Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.) at page 709 in support of this argument:
Appeals of this nature confront this Commission with the fact that there is no absolute standard by which to measure the appropriate penalty. There are reasons why province-wide uniformity is not always an appropriate objective. The forces of the Province are each entitled to emphasize corrective measures for problems which may be of particular concern to them. Concerns may change from year to year, community demands and standards may be different
from one to another. In many respects what may appear just and fair to one Hearing Officer may not appear likewise to another. Fairness can be a matter of opinion.
Staff Inspector Fazackerley submitted that the uniqueness of a situation can shift a case along the continuum of penalty options. He suggested that in the H. matter, the agreed upon section 68(5) resolution was deliberate and that Constable Buks failed to fulfill his obligations under that settlement.
He asserted that the "officer is making choices here, and it is affecting the reputation of the Police Service". Despite all of the training and the remediation from the previous few years, Staff Inspector Fazackerley stated that Constable Buks chose to "act this way" and that his actions required a serious penalty associated with the serious nature of the misconduct.
Staff Inspector Fazackerely relied on the Commission's mandate and asserted that the standard of review for a Part V statutory appeal on sentence was best described by the Commission in Brudlo and Toronto Police Service (23
November, 2005, O.C.C.P.S.) at pp. 14-15:
When assessing what might be an appropriate penalty for such a behaviour a Hearing Officer is obliged to take into account a number of factors. In Williams and OPP this Commission identified three key elements. These include the nature and seriousness of the misconduct in question, the ability to reform or rehabilitate the officer and the damage that would occur to the reputation of the police service if the officer were permitted to remain on the force. Other factors can be relevant, either mitigating or aggravating the possible penalty. They includes the officer's employment history and experience; recognition of the seriousness of the
transgression; and handicap or other relevant personal circumstances.
Staff Inspector Fazackerely argued that the Hearing Officer was aware of the distinction, made by the Divisional Court in Galassi, between considering prior discipline merely for purposes of progressive penalty determination, and generally reviewing the whole employment record as appropriate in order to properly discharge the hearing officer function; addressed the seriousness of the misconduct and employment history; dealt with ability to reform or rehabilitated the police officer; considered recognition of the seriousness of the misconduct; and finally, considered the need for deterrence.
Staff Inspector Fazackerely concluded by requesting that we dismiss the appeal and confirm the decision of the Hearing Officer.
Decision:
The finding of misconduct by the Hearing Officer is not in dispute. The issue before us concerns the appropriateness of the penalty imposed by the Hearing Officer.
The role of the Commission on appeal of penalty is clear and well established. As was noted in Carson and Pembroke Police Service at pages 14 and 15:
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 services 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 a 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. Carson (pages 14-15)
There are two questions before us. They are as follows:
Did the Hearing Officer fail to apply the principle of progressive discipline in determining the penalty?
Did the Hearing Officer err in assessing the seriousness of the misconduct?
We will address the second question first.
The Hearing Officer stated in his decision: "I find the evidence both clear and convincing that not only was the comment made to Mr. P. by Constable Buks, but that it was made in an attempt to intimidate him to plead guilty to the charge of Careless Driving".
An abuse of power by a police officer is a serious matter. Attempting to intimidate a citizen is, in and of itself, serious misconduct. The Hearing Officer found that Constable Buks' "lack of knowledge and confidence in performing the duties of a police officer" was an aggravating factor particularly since "the Service has given the officer numerous opportunities to refocus on what he needed to do to be a competent police officer today".
The Hearing Officer is entitled to review the surrounding circumstances in assessing the seriousness of the misconduct. Constable Buks' lack of knowledge and confidence, despite the Service's efforts to assist, and despite the fact that Constable Buks is a 16-year veteran of the police service, is a proper factor for the Hearing Officer to consider in assessing the seriousness of the misconduct.
Having confirmed the seriousness of the misconduct, did the Hearing Officer properly apply the principle of progressive discipline?
The Hearing Officer considered Constable Buks' employment history. He acknowledged that it would be an error in principle to consider the disposition, without a hearing in the E. matter. He did however, "feel it is appropriate … to be aware of the fact that the officer's employment file reflects a cost to the Board for actions taken by Constable Buks." The Hearing Officer also took into consideration Constable Buks' first 14 years of service without discipline and considered the 13 factors listed in Blowes-Aybar.
The Hearing Officer held that the public interest requires that police officers "possess both the character and ability to carry out the required duties and responsibilities of the office they hold".
In assessing Constable Buks' employment history, the Hearing Officer further stated:
The fact Constable Buks wishes to be a police officer, while admirable is of no benefit to the Police Service if he is not prepared to put his desire into actions by ensuring he is able to achieve current standards. Once he proves he has the ability he must be able to maintain the standard under all circumstances including being the subject of actual or perceived disrespect by members of the public.
The fact while under mentoring and monitoring he has demonstrated this ability, but has abandoned it at least on two occasions while on his own goes to the ability to reform or rehabilitate the officer.
The Hearing Officer also concluded that "Constable Buks has not grasped the
fact it is his interaction with members of the public that is the primary issue". This had been the fundamental issue in the H. matter and again in this matter.
Finally, the Hearing Officer felt that although Constable Buks could be rehabilitated, the penalty must be "significant to ensure Constable Buks understands his desire to remain a police officer must be accompanied by the provision of policing services to the public consistent with today's standards."
We hold that the Hearing Officer properly considered and applied the principle of progressive discipline, in conjunction with all of the other appropriate sentencing factors.
As stated above, we may vary the Hearing Officer's decision in the presence of a manifest error in principle or if the proper factors are not considered. We find
that the Hearing Officer considered the proper factors and that there was no error in principle.
The penalty imposed is not 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 19TH DAY OF MAY, 2006.
David Edwards Biagio (Bill) Marra
Member, OCCPS Member, OCCPS