ONTARIO CIVILIAN POLICE COMMISSION
FILE: OCPC-07-010
CASE NAME: CONSTABLE PHILIP D’SOUZA AND THE TORONTO POLICE SERVICE AND GEORGE BERGER
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Constable Philip D’Souza APPELLANT
-and-
Toronto Police Service and George Berger RESPONDENTS
DECISION
Panel: David Edwards, Member Hyacinthe Miller, Member
Hearing Date: February 27, 2007
Hearing Location:
Appearances: Joanne Mulcahy, Counsel for the Appellant Darragh Meagher, Counsel for the Respondent, Toronto Police Service
I. Introduction
This is an appeal from findings of guilt made on January 18, 2006 against Constable D’Souza by Superintendent Neale Tweedy (the “Hearing Officer”) on two counts of discreditable conduct contrary to sections 2(1)(a)(v) and (xi) of the Code of Conduct (the “Code”) set out in Ontario Regulation 123/98 and one count of insubordination contrary to section 2(1)(b)(ii).
As well, this is an appeal from the penalty imposed on one of the counts of discreditable conduct. That penalty was forfeiture of five days or forty hours off.
II. Background
The Respondent, George Berger, has been an Associate Director of the Canadian National Exhibition (“CNE”) since 2000. On August 24, 2003 at approximately noon, Mr. Berger was driving to the CNE westbound on Fleet Street attempting to enter at the Strachan gates.
He was wearing a badge on his shirt identifying him as an Associate Director of the CNE. On the dashboard of his vehicle was a sign that read: Canadian National Exhibition Official 2003. Mr. Berger was accompanied by his 10 year-old daughter in the passenger seat and his friend, Ms. K and her 7 year-old daughter in the back seat.
Constable D’Souza was on traffic duty at the entrance to the CNE grounds. He and several other officers were assigned to control traffic at the intersection of Canada Boulevard, Strachan Avenue and Manitoba Drive. There was a great deal of vehicle, streetcar and pedestrian activity.
It was Mr. Berger’s intention to veer to the right onto Manitoba Drive, a road that was designated as the access route for CNE employees, police and grounds vendors. Constable D’Souza stopped Mr. Berger’s vehicle and directed him away from Manitoba Drive. A verbal exchange occurred. It culminated in Constable D’Souza issuing Mr. Berger an offence notice for disobeying an officer directing traffic. Subsequently, Mr. Berger attended at the CNE police sub-station and spoke with Sergeant Wright.
There is disagreement with respect to a number of significant facts surrounding this incident, including the location of the officers in the intersection, the location of Mr. Berger’s vehicle in relation to the traffic signals, whether the officer asked for the driver’s documents before or after Mr. Berger asked for his badge number, the distance of the officer from the vehicle, and what Mr. Berger may have said to the officer in charge of the CNE police sub-station.
In any event some months later, Mr. Berger filed a complaint against Constable D’Souza expressing concern about a verbal comment and the issuance of the ticket. Ultimately three disciplinary charges were laid against Constable D'Souza.
The particulars were as follows:
Charge # 1
Being a member of the Toronto Police Service, attached to 14 Division, you on Sunday, August 24, 2003, were performing uniform duties at the Canadian National Exhibition.
You advised Mr. George Berger that he could not enter the grounds of the Canadian National Exhibition. Mr. Berger stated that he possessed an authorized pass to enter the grounds. You uttered words to the effect of “everyone’s a moron”.
In so doing, you used profane, abusive or insulting language or were otherwise uncivil to a member of the public.
Charge # 2
… You had a conversation with Mr. George Berger regarding his access to the Canadian National Exhibition. Mr. Berger requested your badge number. Subsequently, you issued Mr. Berger with a provincial offence notice alleging he had committed the offence of disobey officer directing traffic when he, in fact, had not.
In so doing, you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police service.
Charge # 3
… On Friday, April 16, 2004, the Minor Traffic Court Notification (CIS 5) was posted showing that you had twelve cases in room X at Old City Hall on April 28, 2004 at 7:00 p.m. One of the matters involved Mr. George Berger.
You failed to attend court or notify the officer in charge of 14 Division to be excused from court as required.
Investigation revealed that as a result of your non-attendance at court Mr. Berger’s case was withdrawn.
In so doing, you did without lawful excuse, disobey, omit or neglect to carry out any lawful order.
The Hearing
The Hearing occurred on November 21, 2005, at which time Constable D’Souza pled not guilty. Mr. Berger and his passenger, Ms. K testified with respect to the position of the vehicles in the intersection and the verbal interaction at the entrance to the CNE. Sergeant Wright testified with respect to Mr. Berger’s comments when he attended the CNE sub-station to discuss the offence notice issued by Constable D'Souza.
In his decision, the Hearing Officer found that Mr. Berger entered the intersection when there were no police officers directing traffic; that he obeyed the traffic signals; and that it was only after he had cleared the intersection that he was approached by Constable D’Souza. Once the initial dialogue with Constable D’Souza was over and Mr. Berger had explained his authority as a Board member to go onto the CNE grounds, the officer accepted this explanation.
The Hearing Officer found that Mr. Berger heard Constable D’Souza say that “everyone’s a moron”. He further found that the rudeness of the officer led to Mr. Berger to request his badge number. This request resulted in the officer issuing a traffic ticket. The Hearing Officer concluded that Constable D’Souza had been rude and had no cause to issue the ticket. He found the Constable guilty on Charges #1 and #2.
Constable D’Souza failed to attend court on the day when the Highway Traffic Act matter was scheduled. The Hearing Officer concluded that although the Constable had been scheduled to attend a course that day which extended into the evening, the officer failed to report his scheduling conflict or ask to be excused by the officer in charge. He concluded that Constable D’Souza was also guilty of Charge #3.
Submissions as to penalty were made on April 13 and on June 7, 2006. The Hearing Officer imposed a reprimand for each of Charges #1 and #3 and a forfeiture of five days or forty hours off for Charge #2.
It is the findings of guilt on all three charges and the penalty imposed on Charge #2, which are the subject of this appeal.
Motion
A Motion was brought by the Appellant for an order quashing the findings of misconduct on the basis that the transcript filed as part of this appeal was not a true and accurate record of the proceedings. Following notice of the Appellant’s Motion, the Hearing Officer caused a review of the transcript and on February 2, 2007 provided a revised version.
Ms. Mulcahy argued that this was not the first time that the poor quality of Service transcripts has been at issue and that the Commission should ‘send a message’ to the Toronto Police Service. She commented on the frequent use of “inaudible” on the transcript when, in fact, defence counsel listening to the audiotapes could determine what was said.
She also identified several errors in the original transcript such as “ownership”, being transcribed as “all that shit” and “ruined his day” being transcribed as “rude to say”. Ms. Mulcahy observed that the Respondent Service had an obligation to prepare a transcript that was correct and reliable, as the Appellant and the Commission must be able to rely on the accuracy of that document. She suggested that her client was prejudiced by serious errors in the official record.
Mr. Meagher, for the Respondent Service, asserted that the original transcript and the subsequent revised version were sufficient to allow this appeal to proceed. He argued that in addition to reviewing the original transcript, Counsel for the Appellant had the opportunity to listen to the original recording. This removed any prejudice to the Appellant.
Finally, the revised transcript remedied any deficiencies that the original transcript may have contained. On these points he drew our attention to Canadian Union of Public Employees, Local 301 v. Montreal (City) [1997] S.C.R. 793 (S.C.C.) and Coon and Toronto Police Service (April 10, 2003, O.C.C.P.S.).
Decision on Motion
- Having read the original transcript, the revised version, Ms. Mulcahy’s affidavit and notations and having listened to argument from both counsel, we adopted the reasoning in Coon and Toronto Police Service supra., at page 11:
The panel is able to fully understand and appreciate this case based on the transcripts and the arguments put forward by the Appellant and the Respondent. The concerns raised by the counsel for the Appellant do have merit. The concerns, however, do not reach the level that the panel would feel obligated to declare this hearing null and void. The panel in this case was able to reach a proper and fair decision on the record before it.
- Accordingly, the Motion to quash the charges was not granted.
Appeal
Appellant’s Position
Joanne Mulcahy acted as counsel for the Appellant.
She argued that the decision was replete with errors, so fundamental that they raise serious questions about the Hearing Officer’s findings.
She asserted that the Hearing Officer ignored important factual evidence such as the notes that Constable D’Souza made on the reverse of the ticket on August 23, 2003. Cate and Peel Regional Police Service (2002), 3 O.P.R. 1604 (O.C.C.P.S.)
Further, he erred by disregarding any positive evidence with respect to Constable D’Souza and by focusing on an assessment of the credibility of the complainant rather than a consideration of whether all of the evidence proved the allegations. Harper v. Regina 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2 (S.C.C.).
Ms. Mulcahy suggested that the Hearing Officer erred with respect to assessment of the prosecution witnesses’ testimony and the conclusions he drew from that testimony. R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3rd) 53 (Ont. C.A.) She asserted that the Hearing Officer failed to address inconsistencies and obvious evidentiary conflicts including Mr. Berger’s and Ms. K’s evidence with respect to the position of the stopped vehicle in relation to the streetcar tracks, what was said, the position of the officer in relation to the complainant’s vehicle, when the public complaint was filed, who prepared Ms. K’s statement, Ms. K’s testimony that the intersection was not clear or that the officer asked for Mr. Berger’s licence before, not after the request for his badge number. Brown and Ontario Provincial Police (October 31, 2006, O.C.C.P.S.)
Further, by stating “if Mr. Berger is found credible, and I am not otherwise left in doubt, charge 1 and charge 2 will be proven to the required standard”1, the Hearing Officer failed to take into account all evidence before him. Jagoo v. College of Physicians and Surgeons of Ontario [2000] O.J. No. 974 (Div. Ct.)
She argued that by ignoring evidence with respect to where the officer was looking when the interaction occurred the Hearing Officer was led into an error in law when he found that there was no evidence that Constable D’Souza had proper reason to deny Mr. Berger access. The Hearing Officer further erred by engaging in speculation when he concluded that if Constable D’Souza had no trouble hearing Mr. Berger’s request for his badge number, then it was reasonable Mr. Berger could have heard the alleged insult2.
Counsel asserted that the Hearing Officer converted insubordination into an absolute liability offence by failing to consider the lawful excuse of the officer. P.C.P.G. v. Attorney General of Ontario (April 18, 1996, Ont. Div. Ct.), Pollock v. Hill and Cowley (November 19, 1992, Ont. Bd. Inq.), Blowes-Aybar and Toronto Police Service (February 28, 2003, O.C.C.P.S.), Rowe and Sault. Ste. Marie Police Service (April 23, 2003, O.C.C.P.S.) and Monaghan and Toronto Police Service (March 31, 2005, Ont. Div. Ct)
Further, the Hearing Officer found the officer guilty of insubordination for failing to attend court at the same time he was obeying an order to attend a training course3. As well, she asserted that the Hearing Officer failed to give proper weight to the testimony of Sergeant Wright, Constable D’Souza’s supervising officer. Roenish and Alberta Veterinary Medical Association (1968), 1968 CanLII 641 (AB SCTD), 66 D.L.R. (2nd) 358 (Alta. S.C.)
Ms. Mulcahy argued that the Hearing Officer penalized the officer for requiring a hearing, pleading not guilty and defending himself. R. v. Geddes [1999] O.J. No. 4410 (O.C.J.) and Cate and Peel Regional Police Service, supra. Further, the Hearing Officer erred by failing to consider the impact of the penalties on the officer’s future promotional prospects.
Finally, Ms. Mulcahy asserted that the penalty was excessive. She argued that the Hearing Officer erred by considering cases not comparable to the facts in Constable D'Souza’s situation.
In the event that the findings of guilt on the charges were not overturned on appeal, she urged that a reprimand would be the appropriate penalty. On these points she drew our attention to twelve cases.
Respondent Service’s Position
Darragh Meagher acted as counsel for the Respondent.
He outlined the appropriate test which the Hearing Officer must consider in reviewing the evidence. Carmichael and Ontario Provincial Police (1998), 2 P.L.R. 565 (O.C.C.P.S.) He also addressed the Commission’s position regarding the standard of review for assessing a Hearing Officer’s decision. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) at 1058.
He asserted that the Hearing Officer’s decision was not void of evidentiary foundation and was supported by his reasoning. Further, the evidence as outlined in paragraphs 1 to 36 of the Respondent’s Factum provided the Hearing Officer with a clear and convincing evidentiary foundation to support his decision.
Mr. Meagher argued that the Appellant misconstrued the statements of the Hearing Officer. He drew the Commission’s attention to page 9 at lines 18 to 27 of the decision. He noted that the Hearing Officer found as a matter of fact that Constable D’Souza was standing at the southwest corner of the intersection when the Berger vehicle proceeded through the intersection. The Respondent submitted that the officer could not have directed traffic from that location and, accordingly, the confrontation with Mr. Berger must have been unrelated to the alleged failure to follow the officer’s hand signals.
Mr. Meagher noted that although the Hearing Officer did not mention the notes on the back of the Highway Traffic Act ticket, the Appellant’s defence counsel did not mention nor rely upon them in his submissions at the hearing.
He suggested that the Hearing Officer did turn his mind to the Appellant’s allegation with respect to Mr. Berger’s credibility and inconsistencies between his evidence and that of Ms. K. The Hearing Officer also properly considered the circumstances of Ms. K’s testimony and the degree to which she was able to observe the events.4
He stressed that Ms. K’s recollection of the specific details of the interaction was, by her own admission, imprecise. She was, however, certain about the words used by the officer. Mr. Meagher suggested it was grossly unfair to characterize inconsistencies as lies rather than memory errors arising from the distance in time from the events in question. He suggested Brown and Ontario Provincial Police, supra. can be distinguished from this case.
Mr. Meagher submitted that Mr. Berger was forthright about approaching Ms. K to discuss what she saw. She acknowledged receiving a draft statement which she reviewed then signed. Her evidence with respect to the commencement of the interaction with Constable D’Souza was consistent with Mr. Berger’s testimony. Regina v. G.G. (April 14, 1997, Ont. C. A.) However, as she was not pressed by defence counsel to be more precise, the Hearing Officer was not in error to consider her testimony as being unchallenged.
Mr. Meagher argued that the Hearing Officer did not err in finding that the evidence of Ms. K was not rehearsed5. He was, in fact, in the best position to determine the quality of witness testimony. Further, absent corroborative notes from Sergeant Wright regarding his exchange with Mr. Berger, the Hearing Officer gave the appropriate weight to his testimony.
He suggested there was no evidence that Constable D’Souza had a lawful excuse to be absent from court and no evidence as to the officer’s efforts to attend court. He further submitted that if there was any lawful authority, it expired at 4:30 p.m. when the training course ended for the day.
Mr. Meagher argued that the Hearing Officer did not penalize Constable D’Souza for requiring a trial, but rather observed “there can be no credit given as there would be in a guilty plea”.
He discussed the test on appeal for altering a penalty imposed by the Hearing Officer. He drew to our attention to the key elements to be considered when imposing a penalty. Favretto and Ontario Provincial Police (2002), 3 O.P.R. 1540 (O.C.C.P.S.) and Williams and Ontario Provincial Police, supra. He suggested that the Hearing Officer considered the nature and seriousness of the misconduct. The ability to reform or rehabilitate was dealt with by the Hearing Officer when he discussed specific deterrence.
Penalty cases reviewed by Mr. Meagher included Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S), Valois and Toronto Police Service (November 24, 2003, O.C.C.P.S), Duriancik and Metropolitan Toronto Police Service (1982), 2 O.P.R. 582.19 (O.P.C.). Noble-Gresty and Toronto Police Service (August 3, 2005 Hearing Officer Supt. N.T. Tweedy) and Grewal and Toronto Police Service (April 5, 2004. Hearing Officer Supt. N.T. Tweedy).
He noted that while Constable D’Souza was convicted of two counts of misconduct, none of the cases put forth by the Appellant in his factum involved an officer convicted of two counts of misconduct. He also suggested that single incidents of discreditable conduct can give rise to penalties more serious than that imposed in the present case.
He asserted that the Hearing Officer considered the character references submitted by Constable D’Souza and recognized that until this incident the Appellant had an unblemished record. He noted that the character evidence reflected Constable D’Souza’s dedication to duty and exemplary performance.
Finally, he argued that the appeal as to guilt and penalty should be dismissed.
Decision
The first issue to be dealt with is the appeal of the findings of guilt with respect to the three convictions.
The Commission’s role on appeal of a finding of guilt has been described on page 1058 of Williams and Ontario Provincial Police:
Our role or function in such matters is not to second-guess the decision of the adjudicator. In certain limited cases, it would be open for us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the adjudicator, as to the credibility of witnesses, cannot be reasonably accepted. The question to be asked in this case is, are the conclusions of the adjudicator void of evidentiary foundation?
- This test was also spoken to in Wilson and Ontario Provincial Police (November 20, 2006, O.C.C.P.S.) at page 7:
This can be a difficult test for an Appellant to meet. The words “void of evidentiary foundation” clearly contemplate that appellate interference with evidentiary findings will be exercised sparingly. Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.).
Commission appeals are on the record. Not only do we hear from counsel for an appellant and respondent, we have the opportunity to review all of the evidence submitted, including transcripts of sworn testimony, physical evidence such as photographs, audiotapes and police documentation. However, we do not have the benefit of seeing and hearing the witnesses.
In the matter before us, we are satisfied that the Hearing Officer’s conclusions are not void of evidentiary foundation.
In his decision, the Hearing Officer carefully reviewed the evidence, and then presented his analysis. Much turned upon the credibility of Mr. Berger. The Hearing Officer stated: “His credibility is determined by examining the demeanour of the witness, the precision of his evidence, is it supported or corroborated, what was his ability to observe, is there motive to fabricate or embellish and how does it compare to other evidence that is accepted as a finding of fact”6. We are of the view that by referring to “the precision of his evidence”, the Hearing Officer is including in the test that he applied, the internal consistency of the evidence before him.
Ms. K was the only witness at the disciplinary hearing in a position to corroborate or contradict Mr. Berger’s testimony with respect to the actual encounter. By her own testimony, her recollection of the event was very imprecise. During the visual re-creation of the position of the various vehicles in the intersection, she placed Mr. Berger’s vehicle on the streetcar tracks, while his evidence indicated he had cleared the tracks. On these points and with respect to several other details, when pressed, Ms. K provided an opinion but then expressed doubt as to her recollection.
The Hearing Officer noted in his decision: “she admits not remembering much about the intersection, or the position of the vehicle …” She was clear, however that Constable D’Souza said, “Everyone is a moron ...” The Hearing Officer therefore reasonably concluded “she [was] confident in what she heard and what flowed from it”.
The Hearing Officer also stated “In this case, if Mr. Berger is found credible, and I am not otherwise left in doubt, charge 1 and charge 2 will be proven to the required standard”. The Hearing Officer further noted that the Service must prove the charges with “clear and convincing evidence”.
In his decision, the Hearing Officer did not refer to Constable D’Souza’s notes on the reverse of the ticket. That ticket was introduced into evidence by the Prosecutor for the purpose of proving that it had been issued. The notes in question include Constable D’Souza’s opinion on the weather, the heavy traffic conditions around the CNE entrances, the stop traffic directive and Mr. Berger’s actions during the vehicle stop.
The handwritten notes appear to provide a contemporaneous record of Constable D’Souza’s view of the events on that day with respect to his interaction with Mr. Berger. However, Constable D’Sousa did not testify at the disciplinary hearing. As such, information on that ticket could not be tested by cross-examination. We also observe, that neither the Prosecutor nor Defence made any reference to these notes during the hearing.
Given the above, the Hearing Officer was certainly at liberty to attribute little weight to them. In any event, there has been no manifest error committed arising from to the failure of the Hearing Officer to make specific reference to the notes in his decision.
The Hearing Officer found as a fact that “the intersection was clear of police officers and that Mr. Berger was under the control of the traffic signal, which had turned red, and that Mr. Berger proceeded through the intersection when the signal turned green. It was when he had cleared the intersection, near the southwest corner of Fleet Street and Strachan Avenue that he was signaled and approached by Police Constable D’Souza.”7
The Hearing Officer concluded that the officer spoke the words “Everyone is a moron” and he was “satisfied it was the rudeness displayed by the officer that resulted in the request for the badge number and then the issuance of the ticket, leading to Mr. Berger’s attendance and complaint at the police sub-station”.8
As noted earlier, Ms. K’s testimony on the timing of these events is inconsistent. On page 83 of the transcript of proceedings she suggested in her testimony that the request for the officer’s badge came after the officer’s comment and on page 84 reversed the order of events, but with a cautionary comment about her memory. However, on pages 38-39, Mr. Berger’s testimony is clear on these events.
A Hearing Officer is a lay tribunal. Perfection is not the standard to be expected in the decisions of administrative tribunals. As the original trier of fact, he had the opportunity to listen to the testimony of witnesses, to examine their demeanour and weigh their evidence with respect to events.
It was certainly open to him to accept the evidence of Mr. Berger and portions of the testimony of Ms. K. Certainly, it cannot be said that his findings are void of evidentiary foundation.
Accordingly, we dismiss the appeal on the finding of guilt with respect to Charges #1 and #2.
With respect to Charge #3, failing to attend at court, there is agreement that the officer failed to appear in court. The Appellant alleged that he had lawful authority for so doing.
The Hearing Officer concluded that “while the officer may have had sufficient reason to be excused from minor traffic court … he failed to report his conflict and be excused by the officer in charge …”. Based on a review of the evidence submitted and his experience as a senior police officer, the Hearing Officer could properly reach this conclusion. In our view, it is also not void of evidentiary foundation.
Therefore the appeal on the finding of guilt with respect to Charge #3 is dismissed.
The officer also appealed the penalty with respect to Charge #2. That charge related to the issuing of the ticket. The Commission has stated in Wildeboer and Toronto Police Service (November 7, 2006, O.C.C.P.S.) at page 7:
When evaluating or assessing a penalty, the role of the Commission is clear. It is not to second-guess the decision of the Hearing Officer. It is not to substitute our opinion for that of the Hearing Officer. Rather, it is to assess whether or not the Hearing Officer applied the correct principles and imposed a penalty that is consistent with those handed down in similar cases.
- The principles to be applied by hearing officers have been described by the Commission Carson and Pembroke Police Service (March 9, 2006, O.C.C.P.S.) at pages 14 and 15 as follows:
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 police 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.
The Hearing Officer analyzed the three key elements. He considered the nature and seriousness of the misconduct and on page 3 of the penalty decision classified the misconduct as an abuse of authority. He describes the impact on the reputation of the police services by stating: “it cannot be described as insignificant”.
The Hearing Officer then commented upon the ability to reform or rehabilitate as follows:
When considering the issue of understanding the seriousness of the offence and remorse, I note the officer defended himself and as such, required the Service prosecutor to prove her case. There can be no credit applied as there would be in a guilty plea. The lack of remorse impacts the likelihood of rehabilitation. Rehabilitation is also logically linked to a lengthy and good work history. These are the first Police Services Act convictions in over fifteen years of good service and this case must be treated as such.
We do not interpret the Hearing Officer’s comment about the lack of guilty plea as inferring that he considered this to be an aggravating factor. Rather, the Hearing Officer was commenting that a guilty plea can be considered to be a mitigating factor in sentence, but its absence here precludes that consideration.
That being said, we observe that Staff Sergeant Woodley and Sergeant Wright, his direct supervisor, testified that the misconduct of which Constable D’Souza was charged was “totally out of character” and “not in keeping” with the officer’s “continuous and dedicated performance”. Further, Constable D’Souza was viewed as “an excellent dependable officer who interacts with the public in a fair and equitable manner”. His service record of fifteen years contains many very positive letters, awards and commendations relating to general policing duties and traffic enforcement. There are a notable number of performance ratings at the superior level.
Until these charges, Constable D’Souza had an unblemished work record. Although we cannot condone his actions, Constable D’Souza’s decade and a half very positive work record and discipline free employment history are significant mitigating factors. This is particularly so in light of the principles of progressive discipline.
In our view the Hearing Officer did not take these considerations fully into account. Further, consistency in disciplinary process is the hallmark of fairness. A number of penalty cases were drawn to the attention of the Hearing Officer. While none have precisely the same fact situation, some provide useful comparators.
For example, Pacitto and Toronto Police Service (May 6, 2004, O.C.C.P.S.) concerned an officer who was verbally abusive, using profanity and yelling at employees in a store. He resisted a security officer and struck a female customer in the head. Constable Pacitto received a penalty of five days. We observe that Constable D’Souza did not use physical force or profanity.
In Allen and Hamilton-Wentworth Police Service, supra. a penalty of forfeiture of three days’ pay for failing to file a proper report and five days off for making a false statement was set aside on appeal and a loss of two days pay and three days’ pay respectively was substituted.
In Karklins and Toronto Police Service (November 19, 1998, Hearing Officer Sup. T. Kelly) the officer was convicted of discreditable conduct for pulling over a motorist and cursing and swearing at him in a threatening manner. Constable D’Souza clearly did not engage in such behaviour. Constable Karklins was assessed a penalty of three days.
The penalties in the above cases range from three to five days.
The matter before the Hearing Officer concerned an officer who muttered an offensive comment that provoked a confrontation with a motorist. In the heat of that exchange, the officer issued a questionable ticket. The penalty imposed for issuing that ticket was loss of five days.
Given the penalty range of the above noted cases, taking into account Constable D’Souza’s work history and acknowledging principles of progressive discipline, we believe this was excessive.
Accordingly, we revoke the penalty imposed by the Hearing Officer on Charge #2 and replace it with a forfeiture of three days or twenty-four hours off.
DATED AT TORONTO THIS 26th DAY OF JUNE 2007.
David Edwards Hyacinthe Miller
Member, OCCPS Member, OCCPS