Nelles v. Cobourg Police Service, 2007 CanLII 87212

Ontario Civilian Commission on Police Services

OCCPS #07--04

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Nelles v. Cobourg Police Service, 2007 ONCPC 4

REASONS FOR DECISION

CONSTABLE SHAWN NELLES

Appellant

COBOURG POLICE SERVICE

Respondent

Presiding Members:

Murray Chitra, Chair David Edwards, Member Hyacinthe Miller, Member

Appearances:

Harry G. Black, Q.C., Counsel for the Appellant

Lynda A. Bordeleau, Counsel for the Respondent

Hearing Date: Wednesday, April 4, 2007

This is an appeal from the penalty of immediate dismissal imposed upon Constable Nelles by Superintendent (retired) Robert J. Fitches, (the “Hearing Officer”) on August 14, 2006.

That penalty arose from findings of guilt on four charges of misconduct. Specifically, one count of neglect of duty contrary to section 2(1)(c)(ii) of the Code of Conduct set out in Ontario Regulation 123/98 (the “Code”); one count of deceit contrary to section 2(1)(d)(ii); and two counts of discreditable conduct contrary to section 2(1)(a)(xi).

Background:

On October 21, 2005, at Constable Nelles’ disciplinary hearing, Counsel entered into evidence an Agreed Statement of Facts, which read as follows:

1. Constable Shawn Nelles #240 is a first class constable who has been employed with the Cobourg Police since January of 2001. Constable Nelles has previous police experience with the Toronto Police Service.

Allegation 1 - Neglect of Duty

2. Constable Nelles was scheduled to attend a two-day seminar in Belleville on June 16th, 2004, and June 17th, 2004. It is acknowledged by the parties that Constable Nelles was not required for the second day of the seminar as he was requested by Inspector Cromlish to attend an ongoing drug investigation.

3. Constable Nelles left the seminar at approximately 1030 hours on June

16th, 2004, and never returned.

4. At 0640 hours on June 16, 2004, Constable Nelles contacted K1 on her cell pone. At 1022 hours on June 16th, 2004, Constable Nelles contacted K at her residence number at … in Baltimore.

5. Constable Nelles met K at approximately 1300 hours that same day and carried on a personal conversation for approximately two hours. This conversation took place in a parking lot just north of Highway 401 in Cobourg.

6. It is agreed that the above facts constitute Neglect of Duty in accordance with section 2(1)(c)(ii) of the Code of Conduct.

Allegation 2 - Deceit

7. Constable Nelles was asked to submit a Duty Report regarding his activities on June 16th, 2004. In a Duty Report dated June 17th, 2004, Constable Nelles stated the following:

On the above date I was scheduled to attend a seminar in Belleville which was sponsored by the Hasting Children’s Aid Society. I arrived at the station just prior to 0700 hours and checked my e-mails. At about

0730 hours, I left the station, driving the blue CIB car. I arrived at the Ramada Inn at 0822 hours at which time I spoke with the females on the second floor out front of the Conference Room. I signed in and received my package as well as a name card. I then sat at a table and waited for the seminar to begin. Dr. Uille spoke of the different classes of child molesters and the difference between pedophile and a true pedophile.

We broke for lunch at which time I grabbed a sandwich from downtown as the seminar did not include lunch. Upon returning to the Inn, I began to feel ill and spend some time in the washroom. After some time I decided not to return to the seminar and left at about 1400 hours

stopping at the service station along the west bound 401. I arrived home at about 1515 hours. I did not call anyone as I did not think I would be

1Names modified and personal addresses deleted.

missed and in light of the fact I would not be returning for the second day of the seminar. I did not feel as though I would be criticized for leaving early. I realize that the seminar was in fact $130.00. If this is at issue, I would respectfully be willing to pay for half the day I missed for being sick.

8. In his Duty Book for June 16th, 2004, Constable Nelles wrote that he reported for duty at 0700 hours to attend a seminar in Belleville. He reported off duty at 1700 hours.

9. Constable Nelles willfully misrepresented his activities on June 16th,

2004, in both his Duty Book and Duty Report. Such action constitutes

Deceit in accordance with section 2(1)(d)(ii) of the Code of Conduct.

Allegation 3 - Discreditable Conduct

10. On August 16th, 2001, Constable Nelles was working general patrol duties with Constable Brent Allison in a marked police cruiser. Constable Nelles commenced duty at approximately 2100 hours for a ten hour shift. There was a total of eight officers working in four police vehicles that night until 3:00 a.m.

11. At approximately 1:00 a.m. on August 17th, 2001, Constable Nelles and Constable Allison were parked at Tim Hortons’ parking lot on William Street in Cobourg having a coffee. Constable Nelles was driving the police vehicle. The Tim Hortons’ parking lot was adjacent to a bar called Jack Rabbit’s. It was a quiet night and the officers were taking a mobile lunch. The daily activity report, deployment sheet and Duty Book entries for both officers also reflect a lunch hour at 3:00 a.m.

12. The officers were approached by L, an eighteen year old member of the public, for a drive home. L was known to the officers as an employee at the Tim Hortons. L had just left the bar and had been drinking. She was not intoxicated. Constable Nelles did not believe that L was under the influence of alcohol. L sat in the backseat of the police cruiser.

13. Shortly after L got into the police vehicle, another girl named S also requested a ride home and sat in the backseat of the cruiser. S was known to the officers as an employee of Tim Hortons.

14. S was driven to her residence first, located outside the jurisdiction of Cobourg near Grafton. At no time did either Constable Nelles or Constable Allison advise police dispatch that they were taking this course of action. It was not unusual for Cobourg police officers to drive individuals home in the past. There was no reason to drive these women home that night, other than the fact that they asked for a ride.

15. While driving in the police vehicle, Constable Nelles and L engaged in a conversation of a sexual nature initiated by L. L stated that she was in no hurry to get home. L asked Constable Nelles if he knew of a secluded place they could go to. She discussed sexual things that she had done. L stated that she liked Constable Nelles and thought that he was “hot”.

16. Constable Nelles drove along Highway 2 and headed west towards Port Hope. L lived in Port Hope, just past … Road. Constable Nelles drove up Lovshin Road that turned into a dead end that ran north off Highway

2 towards the 401. Constable Nelles turned the vehicle around so that the back of the car pointed towards the 401. At no time did either Constable Nelles or Constable Allison advise police dispatch of their location.

17. L exited the vehicle and asked that the music be turned on as she wanted to dance. The music was turned on in the police vehicle so that it could be heard outside. L began to do a strip tease dance with her clothes on in front of the police cruiser.

18. Constable Nelles exited the police vehicle and spoke with L at the front of the police vehicle. Constable Nelles and L started to kiss in front of the police vehicle.

19. L dropped down to her knees and “fiddled” with Constable Nelles’ police belt. Constable Nelles placed his hands on his police belt and unbuckled the belt. At this point, Constable Allison exited the police vehicle and walked behind the vehicle about 30 feet as he believed the

two were going to engage in oral sex. They were approximately two feet near the hood of the vehicle.

20. Constable Nelles and L engaged in oral sex near the front right corner of the cruiser.

21. At this time Constable Allison did not hear any voices. It wasn’t until Constable Allison heard conversation again did he go back to the police vehicle.

22. Constable Nelles and Constable Allison drove L home in Port Hope.

Neither Constable Nelles nor Constable Allison advised police dispatch of their location or that they were driving L to her home. At no time was police dispatch advised of their mileage that night as required by policy.

23. While driving back to Cobourg, Constable Nelles advised Constable Allison that L had given Constable Nelles a blowjob. Constable Nelles advised Constable Allison that he would call L later.

24. Constable Nelles’ conduct while on duty with L constitutes Discreditable Conduct in accordance with section 2(1)(a)(xi) of the Code of Conduct.

Second Notice of Hearing-Allegation 1 - Discreditable Conduct

25. Constable Shawn Nelles met J in the summer of 2002.

26. On September 1st, 2002, Constable Nelles was on duty and in uniform, driving a marked police vehicle. Constable Nelles was contacted by J. They arranged to meet her later that night at a car pool lot on Division Street, just north of Highway 401 in Cobourg.

27. Constable Nelles met with J that night as they discussed. She entered his police vehicle. They proceeded to travel in the marked police vehicle to a dead end road at which time they parked and had sex. Constable Nelles booked himself off on lunch and spent about an hour with J.

28. Constable Nelles met with J on another occasion while on duty on a midnight shift. Constable Nelles had sex with J while booked off on a lunch hour during a midnight shift.

29. The above conduct of Constable Nelles while on duty constitutes Discreditable Conduct in accordance with section 2(1)(a)(xi) of the Code of Conduct.

Following the admission of the Agreed Statement of Facts Constable Nelles pled guilty and was found guilty of the four charges referred to above.

On June 8, 2006 submissions were made with respect to penalty. Detective Constables John Theriault and Gary Janes of the Toronto Police Service testified for the Appellant. Constable John Webb was called by the Prosecutor.

Documents from Constable Nelles’ personnel file were tabled as exhibits. This included performance evaluations and commendations. As well, the Hearing Officer was provided with background information on Constable Nelles and

letters of support. Both Counsel for Constables Nelles and the Prosecutor tabled case law that they deemed relevant to the question of penalty.

At the conclusion of submissions Constable Nelles addressed the Hearing

Officer. He expressed regret and apologized for his actions.

On August 14, 2006 in a sixteen page written decision, the Hearing Officer imposed the penalty of immediate dismissal.

Appellant’s Position:

Mr. Black, on behalf of the Appellant, asserted that the Hearing Officer erred by failing to apply fundamental principles of sentencing. He argued that the Commission should intervene on an appeal of penalty where:

1. the reasons for decision reflect an error in principle;

2. it amounts to injustice or unfairness;

3. all relevant facts were not fairly and impartially reviewed;

4. a hearing officer failed to give proper weight to mitigating factors; or

5. a penalty is unreasonable.

On this point he noted Carson and Pembroke Police Service (2001), 3 O.P.R.

1479 (O.C.C.P.S.).

Mr. Black asserted that the Hearing Officer failed to apply the principle of consistency in sentencing reflected in Schofield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.), Cate and Peel Regional Police Service (1998), 3 O.P.R. 1257 (O.C.C.P.S.) and Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.).

Mr. Black reviewed twenty-nine cases the defence had submitted at the disciplinary proceeding that supported a penalty of less than immediate dismissal. In his decision the Hearing Officer rejected these precedents as

lacking detail, being of limited assistance in assessing the facts before him or not reflecting the local situation.

Mr. Black submitted that these cases contained sufficient detail. He asserted that the Hearing Officer was wrong not to consider decisions of other hearing officers that provided a range of penalties for similar or worse fact situations. Mr. Black argued that it was unfair for the Cobourg Police Service to impose

penalties for misconduct that are substantially different from those imposed in the rest of Ontario. Further, he noted that there was nothing on the record to indicate that the Hearing Officer had any special knowledge or understanding of local conditions as he was neither a resident of Cobourg nor a member of the Cobourg Police Service.

Mr. Black argued that the cases relied upon by the Hearing Officer in his decision were misrepresented, irrelevant or based on much more serious misconduct. In particular he asserted that the mention of the penalty of demotion imposed on Constable Allison for his actions on the evening of August 16, 2001 was not a useful precedent given that it was the result of a joint submission.

He asserted that the Hearing Officer overstated the seriousness and nature of

Constable Nelles’ misconduct, speculated and made improper findings of fact.

He noted that there was nothing in the Agreed Statement of Facts to suggest that

the safety or security of citizens was at risk. There was nothing to suggest that any sex acts were not consensual. There was no violence, coercion, stalking or drugging. Mr. Black argued that the Hearing Officer improperly speculated on such matters to reach conclusions not reflected in the Notice of Hearing for the purpose of painting the misconduct in question as being far more serious than it actually was.

On this point he noted Gregg and Midland Police Service (2001), 3 O.P.R. 1522 (O.C.C.P.S.), Re Golomb and College of Physicians and Surgeons of Ontario (1976), 1976 CanLII 752 (ON HCJ), 12 O.R. (2nd) 73 (Ont. Div. Ct.), Re Percheson and College of Physicians and Surgeons of Ontario (1985), 1985 CanLII 2062 (ON HCJ), 20 D.L.R. (4th) 295 (Ont. Div. Ct.), Re Tse and College of Physicians and Surgeons of Ontario (1979), 1979 CanLII 2047 (ON HCJ), 23 O.R. (2nd) 649 (Ont. Div. Ct.), Gill v. Canada (Attorney General) [2006] F.C.J. No. 1395 (Fed. Ct.), Henderson v. College and Surgeons of Ontario 2003 CanLII 10566 (ON CA), [2003] O.J. No. 2213 (Ont. C.A.) and Mondesir v. Manitoba Assn. of Optometrists 2001 MBCA 183, [2001] M.J. No. 497 (Man.

C.A.).

Mr. Black asserted that the Hearing Officer erred in law and in principle in his approach to character evidence. He asserted that the Hearing Officer either ignored or gave minimal weight to positive character evidence and concluded erroneously that those who testified or submitted letters were not aware of the true nature of Constable Nelles’ misconduct.

Mr. Black argued that the character evidence was not submitted to prove whether those individuals condoned the misconduct. Rather, that evidence was

submitted to establish character and the possibility of rehabilitation. Mr. Black argued that this evidence clearly showed that Constable Nelles’ usefulness to the Cobourg Police Service was not spent. Conforzi v. Association of Professional Engineers (Ont.) (1987), 25 O.A.C. 276 (Ont. Div. Ct.)

Mr. Black also noted that the Hearing Officer in his decision concluded that the media attention surrounding the hearing had brought disrepute to the police service because the public has become aware of the facts of this misconduct, while at the same time diminishing the weight of the character evidence because witnesses were unaware of the nature of the same misconduct.

He asserted that the Hearing Officer failed to properly take into account mitigating factors. In particular, the Hearing Officer erred by finding that the Appellant’s statement at the conclusion of the hearing was not evidence. Mr. Black argued that the Appellant’s public apology was the first step in rehabilitation and noted that the Hearing Officer made no mention of this in his

decision. Further he failed to give significant weight to the fact that the Appellant pled guilty. On these points he noted Dinsdale and Ontario Provincial Police (30

December, 2004, O.C.C.P.S.) and Hussein v. Ontario College of Pharmacists

[1990] O.J. No. 1755 (Ont. Div. Ct).

Mr. Black argued that the Hearing Officer erred by failing to consider relevant personal circumstances, employment history, management approach or proper principles of progressive discipline. In particular, he noted that Constable Nelles had been a police officer for nine years with an unblemished record who had been unfairly characterized by the Hearing Officer as a “repeat offender”.

Mancini and Courage and Niagara Regional Police Service (12 August, 2004, O.C.C.P.S.)

Mr. Black also asserted that the Hearing Officer erred in his approach to the key question of potential for rehabilitation and failed to apply the proper test for dismissal. On these points he noted Favretto and Ontario Provincial Police (2002), 3 O.P.R. 1570 (O.C.C.P.S.), Toronto (City) Police Service v. Kelly 2006 CanLII 14403 (ON SCDC), [2006] O.J. 1758 (Ont. Div. Ct.) and Re Deputy Chief Kingston (24 March, 2006, O.C.C.P.S.).

For the above reasons, Mr. Black requested that the penalty of immediate dismissal be quashed and a lesser penalty imposed.

Respondent’s Position:

Lynda A. Bordeleau acted as counsel for the Respondent. She reviewed the

Agreed Statement of Facts in some detail.

She described the role of the Commission on appeal of penalty. She asserted that the Commission should use a standard of reasonableness when reviewing the decision of a hearing officer. Further, the Commission should not lightly interfere with a disposition of a hearing officer absent clear error in principle, even if the Commission might have come to a different conclusion if it were hearing the case in the first instance.

She argued that the Hearing Officer’s reasons should be read as a whole and not subject to microscopic examination. The Hearing Officer is a layperson and the Commission should not focus upon mistakes which do not affect the reasonableness of the decision. For example, the Hearing Officer’s comment

that the witnesses who testified to Constable Nelles’ excellent character were “wrong” can be reasonably translated to mean that their evidence did not mitigate the overwhelming seriousness of the misconduct in question.

On these points, Ms. Bordeleau drew our attention to Ontario Provincial Police v. Favretto 2004 CanLII 34173 (ON CA), [2004] O.J. No. 4248 (Ont. C.A.), Toronto (City) v. Blowes-Aybar 2004 CanLII 34451 (ON SCDC), [2004] O.J. No. 1655 (Ont. Div. Ct.), 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.), Groot and Peel Regional Police Service (2002), 3 O.P.R.

1552 (O.C.C.P.S.) and Law Society of New Brunswick v. Ryan [2003] 1 S.C.R.

247 (S.C.C.).

As well, she cited Buckle and Ontario Provincial Police [2006] O.J. No. 554 (Ont. Div. Ct.), Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92 2004 SCC 23, [2004] 1 S.C.R. 609 (S.C.C.), Zellers Ltd. v. Royal Cobourg Centres Ltd. [2001] O.J. No. 3792 (Ont. Div. Ct.), Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301 (Ont. Div. Ct.), Boulis v. Canada (Minister of Manpower and Immigration) 1972 CanLII 4 (SCC), [1974] S.C.R. 875 (S.C.C.), Storey v. Ontario (Director, Disability Support Program) [2002] O.J. No. 1669 (Ont. Div. Ct.) and Re Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 2140 (ON HCJ), 51 O.R. (2nd) 296 (Ont. C.A.).

She noted that disciplinary proceedings held under the Police Services Act R.S.O. 1990, c. P. 15 as amended (the “Act”) should be characterized as labour relations matters between an employer and employee. Burnham v. Metro- Toronto Police Assn. 1987 CanLII 42 (SCC), [1987] 2 S.C.R. 572 (S.C.C.) and Godfrey v. Ontario Police Commission (1991), 1991 CanLII 7115 (ON CTGD), 5 O.R. (3rd) 163 (Ont. Div. Ct.)

Ms. Bordeleau described a number of factors relevant to police discipline matters including the higher standard to which police officers are held, the three main elements to be taken into account in assessment of the appropriate penalty and other specific circumstances.

On these matters she cited Reilly and Brockville Police Service supra., Williams and Ontario Provincial Police supra. and Paul Ceyssens, “Legal Aspects of Policing” (Saltspring Island: Earlscourt, 2006).

She asserted that the seriousness of the misconduct alone can justify dismissal and not attract any requirement for progressive discipline. Further, a series of events and recurring misconduct may be viewed as more serious than a single isolated incident.

She drew our attention to Krug and Ottawa Police Service (21 January, 2003, O.C.C.P.S.), Delano and Niagara Regional Police (1998), 3 O.P.R. 1293 (O.C.C.P.S.), Ward and Treasury Board (Revenue Canada-Taxation) [1986] C.P.S.S.R.B. No. 335 and Canadian Union of Postal Workers and Canada Post Corp. [1996] C.L.A.D. No. 11 (Can. Lab. Arb.).

Ms. Bordeleau argued that the Hearing Officer properly weighed all surrounding circumstances and attempted to come to a disposition that was relatively consistent with other situations. She asserted that the Hearing Officer properly rejected cases which did not contain sufficient detail. Buckle and Ontario Provincial Police (11 May, 2005, O.C.C.P.S.)

She pointed out that the Hearing Officer is not bound to follow the decisions of other hearing officers. In any event, the Hearing Officer did consider the cases submitted by the Appellant. He did not accept some cases and considered others of limited value. That, in her view, was his responsibility as hearing

officer. He analyzed provincial level decisions. Certain cases he accepted for their principles, not because of similar fact situations.

She suggested that there is no absolute provincial standard that must be adhered to in weighing the disposition of matters. Rather, there must be a balance between consistency and the needs of the local community. The local media’s reaction is a good indicator of how seriously the community viewed this type of misconduct. As well, the Constable Allison transcript was submitted as an exhibit at the hearing and the Hearing Officer was entitled to consider the penalty imposed in that case as an indicator of the seriousness with which this type of misconduct was viewed in Cobourg. Gibson and Waterloo Regional

Police Service (1986), 2 O.P.R. 702 (O.P.C.) and Galloway and Innisfil Township

Police Service (1986), 2 O.P.R. 731 (O.P.C.)

Ms. Bordeleau asserted that the Hearing Officer carefully weighed the character evidence which was relevant to the rehabilitation potential of a police officer. This was a matter within his expertise. Further, the mere presence of character evidence, no matter how glowing, does not prove rehabilitative potential. She

argued that the Hearing Officer was entitled to take into account that the persons giving character evidence were not entirely familiar with all of the surrounding circumstances relating to the misconduct. Carson and Pembroke Police Service (9 March, 2006, O.C.C.P.S.), Seamons and Durham Police Service (28

September, 2006, O.C.C.P.S.) and Hassan and Peel Regional Police (8

September, 2006, O.C.C.P.S.)

Ms. Bordeleau asserted that the Hearing Officer properly considered the mitigating factors prior to coming to the conclusion as to penalty. Further, she suggested that the Hearing Officer had insufficient evidence of mitigation. A bald and unsupported suggestion of rehabilitation cannot be accorded much weight.

On the latter point she noted The Management and Training Corporation of Canada (Central North Correctional Centre) and Ontario Public Service Employees’ Union (2006), 2006 CanLII 8875 (ON LA), 148 L.A.C. (4th) 126 (Ont. Lab. Arb.), Re Catholic District School Board of Eastern Ontario and Ontario English Catholic Teachers’ Association (2004), 2004 CanLII 94778 (ON LA), 123 L.A.C. (4th) 193 (Ont. Lab. Arb.) and Brudlo and Toronto Police Service (25 November, 2003, O.C.C.P.S.).

Ms. Bordeleau argued that the fact that the Hearing Officer did not mention the public statement made by the Appellant prior to sentencing meant that he did not give it any weight. This, she asserted, was proper given that the statement only contained general comments and was offered outside the evidentiary phase of the hearing where it was not subject to cross-examination.

On this point she cited Re Breweries’ Employers Industrial Relations Assn. (1992), 1992 CanLII 14431 (AB GAA), 29 L.A.C. (4th) 409 (Alb. Lab. Arb.), Re MacDonalds Consolidated [2001] M.G.A.D. No. 46 (Man. Griev. Arb.), Re Sehmbi v. Canada (Minister of

Citizenship and Immigration) [2002] F.C.J. No. 786 (Fed. Ct.) and Labatt’s

Ontario Breweries Limited [1995] L.V.I. 2694-3 (Ont. Arb. Bd.).

Ms. Bordeleau asserted that the Hearing Officer properly considered the Appellant’s personal circumstances and employment history. Further, there was no evidence that management’s approach to this type of misconduct was so inconsistent so as to make it a mitigating factor. Drennan and Hamilton- Wentworth Regional Police Service (1996), 2 O.P.R. 1103 (O.C.C.P.S.)

She suggested that there was no evidence that the Hearing Officer went beyond the Agreed Statement of Facts or engaged in hyperbole or failed to take relevant evidence into account. In any event, a Hearing Officer is not obliged to refer to every piece of evidence in his or her decision. Woolaston v. Canada (Minster of Manpower and Immigration) 1972 CanLII 3 (SCC), [1973] S.C.R. 102 (S.C.C.), Trotter v. College of Nurses of Ontario [1991] O.J. No. 348 (Ont. Div. Ct.) and McEachran v. Ontario (Labour Relations Board) [2005] O.J. No. 465 (Ont. Div. Ct.)

Ms. Bordeleau argued that the proper approach to the penalty of dismissal is to determine whether the officer can make a useful contribution to the police force. Further, she suggested that it is evident from the Hearing Officer’s decision that he based his decision exactly upon this approach. Re Trumbley et al. and Fleming et al. (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2nd) 570 (C.A.) aff’d 1987 CanLII 43 (SCC), [1987] S.C.J. No.68 and Morden and Peel Regional Police Service (1997), 3 O.P.R. 1141 (O.C.C.P.S.)

Given the above, Ms. Bordeleau submitted that the appeal should be dismissed.

Decision:

Constable Nelles pled guilty to four counts of misconduct.

Two of these counts were for discreditable conduct contrary to section 2(1)(a)(xi) of the Code. That provision makes it an offence for an officer to “act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of a police force”.

The first of these matters occurred seven months after Constable Nelles commenced his employment with the Cobourg Police Service. At that time he was just over 30 years of age.

He and his partner drove an eighteen-year old woman who had been drinking outside of the jurisdiction of the Service to an isolated country road where Constable Nelles received oral sex. He was in full uniform and wearing a police belt with a loaded firearm.

The second act of discreditable conduct occurred just over a year later. On two different occasions, while on duty, Constable Nelles drove another woman in his police cruiser to an isolated road for the purposes of sex.

The third count of disciplinary misconduct was for neglect of duty contrary to section 2(1)(c)(ii) of the Code. That provision makes it an offence for an officer to fail “to work in accordance with orders, or leaves an area, detachment, detail or other place of duty, without due permission or sufficient cause”.

Again, some twenty-one months after the previous incident, Constable Nelles left a course that he was scheduled to attend in an unmarked police car for the purposes of meeting a third woman in a parking lot for a private conversation which lasted some two hours.

Constable Nelles completed his Duty Book as if he had attended the course. The following day he prepared a Duty Report with a false explanation about leaving the course because of illness.

As a result, he faced a fourth charge of deceit contrary to section 2(1)(d)(ii) of the Code. That provision makes it an offence for an officer to “willfully or negligently make a false, misleading or inaccurate statement pertaining to official duties”.

The task of the Hearing Officer was to assess this conduct in light of a number of factors. In Williams and Ontario Provincial Police supra., the Commission identified three key considerations. These included 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 to remain on the force.

Other factors can be relevant, either mitigating or aggravating a possible penalty. They include the officer’s:

• employment history and experience;

• recognition of the seriousness of the transgression; and

• handicap or other relevant personal circumstances.

Other potential considerations are provocation, the need for deterrence, concerns arising from management’s approach and consistency with previous penalties for similar infractions.

Our role in this appeal is somewhat different from that of the Hearing Officer. It is not to second guess the Hearing Officer and substitute our own opinion. Rather, it is to assess whether or not the Hearing Officer has properly, fairly and impartially taken into account the relevant factors and principles and imposed a penalty within the range appropriate to the particular circumstances of the case

at hand.

How do these considerations apply?

In his sixteen-page penalty decision the Hearing Officer properly identified the relevant dispositional factors. He described the conduct in question as being quite “disturbing” or “disconcerting”, “appalling” and “totally unacceptable”. He observed that Constable Nelles has “misconducted himself most seriously and over a significant length of time”. He also noted that the four allegations of misconduct “all either directly or indirectly linked to his activities - either personal or sexual or both - with females while he was suppose to be working.”

We agree. We do not believe that the Hearing Officer overstated the nature of Constable Nelle’s misconduct. It was clearly serious, discreditable and warrants both specific and general deterrence.

We acknowledge that the task of identifying gradations in the assessment of misconduct with a sexual element can be a difficult one. These types of offences can include:

• inappropriate comments or vulgar sexist jokes2;

• sexual harassment of co-workers3;

• sexual activity between co-workers4;

• sexual harassment of members of the public5;

• sexual harassment of both co-workers and members of the public6;

• stalking7;

• use of prostitutes8;

• sexual assault9; and

• sex with minors or very young individuals10.

Another category of such misconduct concerns sexual activity between a police officer and a member of the public while on duty.

2See Drennan and Hamilton-Wentworth Police Service (1996), 2 O.P.R. 1103 (O.C.C.P.S.) and Lewin and

Toronto Police Service (2001), 3 O.P.R. 1472 (O.C.C.P.S.)

3See Brudlo and Toronto Police Service (23 November, 2005, O.C.C.P.S.) and Brayshaw and Ontario

Provincial Police (1992), 2 O.P.R. 937 (O.C.C.P.S.)

4See Inquiry into the Operation of the Town of Amherstburg Police Force (27 May, 1985, O.P.C.)

5See Cate and Peel Regional Police Service (1998), 3 O.P.R. 1257 (O.C.C.P.S.) and Grainer and Ontario

Provincial Police (4 July, 2005, O.C.C.P.S.)

6See Krug and Ottawa Police Service (21 January, 2003, O.C.C.P.S.), Howatt and Ontario Provincial Police (1990), 2 O.P.R. 876 (O.P.C.) and Ashby and Brockville Police Service (1990), 2 O.P.R. 882 (O.P.C.)

7See Mancini and Courage and Niagara Regional Police Service (13 November, 2004, O.C.C.P.S.)

8See Lalonde and Ottawa Police Service (1988), 2 O.P.R. 785 (O.P.C.) and Mattison and Niagara Regional

Police Service (1996), 3 O.P.R. 1117 (O.C.C.P.S.)

9See Toronto (City) Police Service and Blowes-Aybar 2004 CanLII 34451 (ON SCDC), [2004] O.J. No. 1655 (Ont. Div. Ct.) and Hinds and

Ontario Provincial Police (1990), 2 O.P.R. 880 (O.P.C.)

10See Keefe and Ontario Provincial Police (1989), 2 O.P.R. 838 (O.P.C.) and Armstrong and Peel Regional

Police Service (2002), 3 O.P.R. 1583 (O.C.C.P.S.)

The latter type of behaviour raises particular concern. This was identified by the Commission in Crozier and Waterloo Regional Police (1993), 2 O.P.R. 948 (O.C.C.P.S.). In that case a police officer was found guilty of various counts of discreditable conduct and neglect of duty flowing from a sexual relationship with a member of the public. This activity took place while the officer was on duty in secluded areas of his patrol zone.

Notwithstanding apparent consent, the Commission stated at page 954 of that decision “where a person in a position of authority interacts with someone who does not have identical authority there is a potential for coercion implied in the imbalance of power in the relationship.” It went on to observe at page 955:

Although there is obviously a moral question in regard to how human beings treat each other that is not the consideration of this body, it is our consideration how members of the police, when they are recognized as police officers, treat others. At any level, this type of conduct is reprehensible and certainly never more than when it is engaged in by persons who are sworn to safeguard and protect. Within this framework and recognizing the authority vested in police officers, they must be expected to engage in a higher standard of conduct than is required of the citizenry at large.

Clearly, having oral sex with an eighteen year old who had consumed alcohol, on an isolated country lane, in the headlights of police cruiser, does not meet this standard.

The same would apply to sexual activity in a police cruiser on two occasions with another woman on an isolated country road. It makes no practical difference whether the officer was booked off for “lunch” either before or after the acts.

The Hearing Officer concluded that Constable Nelles’ misconduct was more serious in that it demonstrated behaviour over “a significant length of time” and that the events in question could not be viewed as “isolated incidents that are deemed to be atypical of the character of the officer in question”.

This is a reasonable conclusion. Constable Nelles’ conduct does not demonstrate a single act of human frailty. The Hearing Officer correctly observed that: “The evidence very clearly shows that over a period of almost three years, Constable Nelles is known to have neglected his duty, deceived his superiors and others and permitted himself to seek and obtain sexual gratification, while he was presumed to be working.”

This also goes to the essential question of Constable Nelles’ potential for rehabilitation and possible future usefulness to the Service. The Hearing Officer correctly noted that: “Past behaviour is said to be the best indicator of future conduct.”

He acknowledged that Constable Nelles’ “career history indicates a high level of professionalism, enthusiasm and capability”. He noted the guilty plea to the disciplinary charges and the positive character evidence. However, at the end of the day he concluded that these were insufficient to mitigate against immediate dismissal given that Constable Nelles had “irreversibly harmed his relationship with his employer”.

On the facts of this case, this was a conclusion open to the Hearing Officer. Constable Nelles’ service with the Cobourg Police Service has been brief. His misconduct commenced within months of his employment. His actions have been the subject of much local media attention and clearly brought great discredit to

his employer.

His ongoing conduct raises obvious doubts about his capacity to work alone, deal professionally with vulnerable woman, account honestly with his employer for his actions or refrain from using both his position and office for personal purposes.

His last minute apology and expression of regret is of little comfort. There is nothing in this case to suggest inappropriate management conduct and little of value on the question of handicap.

We have heard much in this appeal about the matter of consistency in the imposition of penalty and the application of local standards. On this point, we would simply observe that the penalty of dismissal was clearly within the range of dispositions available to the Hearing Officer.

We note two previous Commission decisions involving services of different sizes. The first is Skedgel and Thunder Bay Police Service (1975), 1 O.P.R. 211 (O.P.C.). That case concerned a police officer found guilty of discreditable conduct “for carrying female passenger in cruiser while on duty and for acting in an indecent manner in private vehicle while in uniform”. Upon consent, the penalty was reduced from immediate dismissal to dismissal in the absence of resignation within seven days.

The second is Trumbley and Pugh and Metropolitan Toronto Police Service (1991), 2 O.P.R. 894 (O.P.C.). That case concerned two officers also found guilty of discreditable conduct. During an evening shift they picked up a twenty year old woman who had consumed alcohol. They drove the woman to a hostel where she refused to stay. They then took her in their marked scout car to an underground parking garage where both officers had sexual intercourse with the woman. They then drove her to another hostel where she remained.

At page 905 of that decision the Commission stated: “We find the conduct of the two officers awful. Their conduct on the night in question, standing alone, justifies dismissal.” The Commission upheld the penalty of dismissal in the absence of resignation within seven days for both officers.

We have no doubt given the multiple acts of misconduct attributed to Constable Nelles that the penalty of immediate dismissal was available to the Hearing Officer.

For the above noted reasons, we are satisfied that the Hearing Officer’s decision is reasonable, takes into account the relevant facts and principles and imposes a penalty consistent with similar infractions.

This appeal is dismissed.