OCCPS #07-12
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
Citation: Byrne v. Ontario Provincial Police, 2007 ONCPC 12
REASONS FOR DECISION
CONSTABLE MICHAEL BYRNE
Appellant
ONTARIO PROVINCIAL POLICE
Respondent
Presiding Members:
Murray W. Chitra, Chair
Garth Goodhew, Member
Appearances:
Jonathan D. Cocker, Counsel for the Appellant
Marnie Bacher and Jordana Joseph, Counsel for the Respondent
Hearing Date: February 7, 2007
This is an appeal from a conviction for one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at Ontario Regulation 123/98 as amended (the “Code”) by Superintendent M.P.B. Elbers (the "Hearing Officer”) on June
2, 2006.
Further, it is an appeal from the penalty imposed on June 21, 2006. That penalty was forfeiture of sixteen hours to be served on either annual leave or rest days. The Hearing Officer directed that Constable Byrne’s Detachment Commander determine “how many months would be allocated to complete … the disposition” but that he believed “four months may be an appropriate guide”. The Detachment Commander was also directed to “advise Professional Standards Bureau when these hours have been completed.”
Background:
Constable Michael Byrne has been a member of the Ontario Provincial Police (“OPP”) for over nineteen years. At the time of the events in question he was assigned to the Wellington County Detachment at Mount Forest.
In addition to his normal policing duties, Constable Byrne has authorized secondary employment. He operates a small landscaping business. Snow removal is a service offered by this business.
On January 23, 2003, while off-duty, Constable Byrne attended the farm of Elaine and Gary Ray in Kenilworth Ontario in order to meet with their son, Donald. The purpose of this visit was to ask for assistance and the use of the Ray’s snow removal equipment to clear a property owned by a local company. Constable Byrne had a snow removal contract with that company.
It was agreed, that the amount Constable Byrne would be charged for the use of the Ray’s equipment would be determined a few days later when Donald's parents returned from vacation. Constable Byrne was to contact them. On January 25, 2003 Donald and Constable Ray used the equipment to remove the snow.
When his parents returned Donald explained what had occurred. His mother Elaine acts as bookkeeper for the family farm. Constable Byrne did not get back to the family. As a result, it was Mrs. Ray’s evidence that she sent an invoice for $130.00 to Constable Byrne for the work performed and the use of the equipment.
Constable Byrne did not respond to this first invoice. According to Elaine Ray, she sent a second invoice on March 3, 2004 for $143.00, which included 10% interest. Elaine Ray stated that both invoices were been sent by regular mail.
Payment was not received from Constable Byrne.
On October 13, 2004, Elaine Ray prepared a complaint in writing against Constable Byrne. She gave it to an acquaintance, Mr. Doug Officer. It would appear that Mr. Officer had a similar concern with Constable Byrne. Mr. Officer provided Mrs. Ray’s complaint to Detective Sergeant Bruce Fearnall of the OPP.
On December 14, 2004 Detective Sergeant Fearnall sent an e-mail to Constable Byrne attaching a copy of Mrs. Ray’s complaint and an order to prepare a Duty Report. Constable Byrne did not respond.
On March 7, 2005 Constable Bryne was served with a Notice of Hearing. It contained the following allegation:
On or about January 23, 2003, you hired Don Ray to complete snow removal work. On January 25, 2003 you were invoiced $130.00 for this work. You did not pay. On March 3, 2004 you were invoiced $143.00 for that work plus interest. You have not paid.
The public complainant, Elaine Ray, is the mother of Don Ray and she also acts as his bookkeeper.
You knew or reasonably ought to have known that your conduct was, and continues to be, inappropriate.
The Hearing:
Constable Bryne’s disciplinary hearing took place in Guelph on May 4 and 5, 2006. A number of witnesses testified, including Elaine Ray, Donald Ray and Detective
Sergeant Bruce Fearnall. A total of eleven exhibits were tabled.
Following the completion of the Prosecution’s case, Mr. Cocker on behalf of Constable Byrne, argued that the Prosecution had failed to establish that the Commissioner or her delegate had properly exercised their authority under section 59(4) of Police Services Act R.S.O. 1990, C. P. 15 as amended (the “Act”).
Section 59(4) reads: “The chief of police may decide not to deal with any complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.”
Mr. Cocker asserted that the Prosecution:
had not presented evidence to show that this discretion had been exercised; and
that a failure to address this matter was an error going to jurisdiction;
or
- even if this discretion was exercised, it was not done in accordance with principles of natural justice (i.e. notice to Constable Byrne with the opportunity to make submissions).
The Hearing Officer rejected these arguments in an oral decision. Mr. Cocker then chose not to call any evidence.
The proceedings were adjourned to May 9, 2006 for submissions in Orillia. The Hearing Officer found Constable Byrne guilty in a decision dated June 2, 2006. Submissions were made with respect to penalty. The Prosecutor proposed a forfeiture of twenty-five hours. Mr. Cocker proposed a loss of eight hours.
The Hearing Officer released his penalty decision on June 21, 2006 imposing a forfeiture of sixteen hours subject to the conditions noted above.
Appellant’s Position:
Mr. Cocker, on behalf of Constable Byrne, challenged the Hearing Officer’s decisions on conviction and penalty.
He asserted that the conviction registered against Constable Byrne was deficient in three respects.
First, Mr. Cocker argued that the Hearing Officer erred in his interpretation of section
59(4) of the Act. He pointed out that this provision grants the Commissioner or delegate authority to deal with public complaints arising from events occurring more than six months before a complaint was made.
Mr. Cocker noted that at the heart of this disciplinary proceeding were two invoices that were issued more than six months prior to the date of Elaine Ray’s complaint. He submitted that while the Commissioner had discretion under section 59(4) to proceed with this complaint, there was no evidence that she ever turned her mind to this question.
Mr. Cocker argued that failure to exercise the legislated discretion under section 59(4) is an error of law going to jurisdiction that cannot be cured. On this point he drew our attention to Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174
D.L.R. (4th) 193 (S.C.C.), El-Amin v. Canada (Minister of Citizenship and Immigration) (1997), 38 IMM. L.R. (2d) 145 (F.T.D.) and Canadian Civil Liberties Association v. Ontario (Civilian Commission on Police Services) (2002), 2002 CanLII 45090 (ON CA), 220 D.L.R. (4th) 86 (Ont. C.A.).
Second, Mr. Cocker asserted that any exercise of discretion under section 59(4) gives rise to procedural fairness requirements. By analogy to section 69(18) of the Act, Mr. Cocker argued that under section 59(4) Constable Byrne was entitled to notice, disclosure and an opportunity to respond, none of which occurred.
As a result, Mr. Cocker asserted that the Hearing Officer was in error in allowing the disciplinary proceeding to proceed. On this point he drew our attention to Silverthorne v. College of Social Workers & Social Service Workers (Ontario) (2006), 264 D.L.R. (4th)
175 (Div. Ct.), Bennett v. Toronto (Metropolitan) Police Services Board [1995] O.J. No.
4816 (Div. Ct.) and Coombs v. Toronto (Metropolitan) Police Services Board [1997] O.J. No. 5260 (Div. Ct.).
Third, Mr. Cocker argued that the conviction was improper because the Prosecution failed to prove an essential element of the complaint against Constable Byrne, that is, that he had received the invoices prepared and sent by Elaine Ray.
Given this failure, Mr. Cocker asserted that the conviction was without the necessary evidentiary foundation. He citied Williams and Ontario Provincial Police (1995), 2 O.P.R.
1047 (O.C.C.P.S.), Geske and Hamilton Police Service (April 2, 2003, O.C.C.P.S.), Bromfield and Hamilton Police Service (March 17, 2003, O.C.C.P.S.) and Cate and Peel Regional Police Service (2002), 3 O.P.R. 1604 (O.C.C.P.S.).
Mr. Cocker also argued that the penalty imposed by the Hearing Officer was excessive, given that in essence the subject matter of the disciplinary proceeding was a civil dispute over payment of a bill. He noted that Constable Byrne had since paid the Rays
$179.00 for the outstanding debt (this appears to have occurred after the conviction was registered).
Mr. Cocker argued that generally off-duty misconduct attracts a lower penalty. On this point he drew our attention to Burdett and Guelph Police Service (1999), 3 O.P.R. 1336 (O.C.C.P.S.), Silverman and Ontario Provincial Police (1997), 3 O.P.R. 1181 (O.C.C.P.S.) and Morin and Ontario Provincial Police (1996), 3 O.P.R. 1113 (O.C.C.P.S.).
In conclusion, Mr. Cocker asked that we either set aside the conviction or reduce the penalty to a reprimand.
Respondent’s Position:
Ms. Bacher, on behalf of the OPP argued that both the conviction and penalty must stand.
She identified the standard of review to be applied in disciplinary appeals. She noted Williams and Ontario Provincial Police supra., Cate and Peel Regional Police Service supra., and Bender and LeClair and Windsor Police Service (2000), 3 O.P.R. 1392 (O.C.C.P.S.).
Ms. Bacher asserted that the Hearing Officer properly applied section 59(4). She argued that there was no evidence before the Hearing Officer to suggest that the discretion under this provision had not been exercised. Further, she argued that the Hearing
Officer was entitled to rely upon the signature of the Commissioner’s delegate on the Notice of Hearing as proof that all necessary steps had been taken prior to the complaint being directed to a hearing.
Ms. Bacher argued that the concept of procedural fairness is a flexible one. She asserted that section 59(4) does not require notice to the officer, an opportunity to respond, a hearing or written reasons.
On the scope of the duty of procedural fairness, Ms. Bacher drew our attention to Baker v. Canada (Minister of Citizenship and Immigration) supra., Ontario (Securities Commission) v. Biscotti [1988] O. J. No. 1115 (H.C.J.) and Bailey v. Saskatchewan Registered Nurses Association [1994] S.J. No. 462 (Sask. Q.B.). She asserted that a decision to proceed with an investigation or even to refer a matter to a hearing, is a preliminary one and any corresponding duty of procedural fairness is minimal.
She submitted that Constable Byrne was made aware of the allegation against him shortly after it was filed with the OPP, and that he was given an opportunity to respond in writing, which he chose not to do. Constable Byrne certainly could have raised any concerns he had about the timeliness of the complaint at that time (prior to the issuance of the Notice of Hearing), or indeed at any time prior to the commencement of the hearing.
Ms. Bacher argued that section 69(18) was a separate and distinct provision of the Act which could not be properly compared to section 59(4).
She also asserted that there was more than sufficient factual foundation to enable the Hearing Officer to conclude that the essential elements of the complaint had been established on a clear and convincing basis. She drew our attention to various portions of the evidence.
Ms. Bacher argued that there was no evidence that Constable Byrne did not receive the mailed invoices. Further, in the absence of evidence to the contrary, it was open to the Hearing Officer to make findings and reasonable inferences on this issue based upon his experience.
On these points she cited Allen and Hamilton-Wentworth Police Service (1995), 2
O.P.R. 1001 (O.C.C.P.S.) and Buckle and Ontario Provincial Police (May 11, 2005, O.C.C.P.S.).
Ms. Bacher identified the test to be applied by the Commission on an appeal from a penalty. The authorities she relied upon included Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.), Lewin and Toronto Police Service (2001), 3 O.P.R.
1472 (O.C.C.P.S.) and Armstrong v. Peel (Regional Municipality) Police Service 2003 CanLII 37924 (ON SCDC), [2003] O.J. No. 3437 (Div. Ct.).
She argued that the penalty imposed by the Hearing Officer was reasonable, fair, proportionate and not inconsistent with penalties imposed in other cases involving off- duty misconduct. On the latter point she citied Reilly and Brockville Police Service (1997) 3 O.P.R. 1163 (O.C.C.P.S.), Mason and Hamilton-Wentworth Police Service (2000) 3 O.P.R. 1386 (O.C.C.P.S.), Burdett and Guelph Police Service supra., and Lang and Toronto Police Service (February 8, 2006, O.C.C.P.S.).
For the above-noted reasons, Ms. Bacher requested that we dismiss the appeal and uphold both the conviction and penalty.
Decision:
This appeal raises a number of novel issues, particularly with respect to the interpretation and application of section 59(4) of the Act.
The Hearing Officer dealt with the section 59(4) issues in an oral decision on May 5,
- He concluded that:
Constable Byrne’s concerns with respect to section 59(4) had not been raised in a timely manner;
Constable Bryne received early notice of the allegation against him, but chose not to respond;
in the absence of a reply by Constable Bryne, Superintendent
MacDonald properly determined that a hearing was warranted;
- “Not one iota of evidence” was presented to suggest that the necessary and proper steps with respect to the processing of the
complaint had not been taken; it was therefore his ”presumption“ or
“assumption that all the steps had taken place”;
there is “no requirement” to prove at the disciplinary proceeding that the Commissioner or her delegate “considered certain things”; and,
section 69(18) is “a totally different procedure that is not remotely connected to section 59(4)”.
The Appellant takes issue with these conclusions.
In order to deal with the Appellant’s concerns regarding section 59(4), it is necessary to have some context. As noted earlier, the section reads:
59(4) The chief of police may decide not to deal with any complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred. [emphasis added]
It is evident from the use of the word “may” that section 59(4) is not a mandatory limitation period.
Rather, section 59(4) is one of a number of gate keeping considerations to be taken into account by the Commissioner or delegate when conducting preliminary informal screening of public complaints. The heading of section 59 aptly describes this process as “vetting complaints”.
Other vetting considerations include determining whether a complaint concerns policy, services or conduct;1 may be frivolous, vexatious or made in bad faith;2 or, the complainant is directly affected.3 Such determinations must normally be made in thirty days.4
Further screening considerations can include whether the complaint is properly in
writing and signed;5 or whether the complainant is a minor;6 or, meets the definition of a
“member of the public”.7
It is evident that the legislative scheme does not contemplate an elaborate system of notifications to a police officer at each step during the 30-day vetting process. Rather, an officer is entitled to be notified “forthwith” of the substance of the initial complaint “unless, in the chief of police’s opinion, to do so might prejudice the investigation.”8 In this particular case, Constable Byrne was notified of the complaint against him.
The Commissioner or delegate “may” decide not to deal with a complaint because it was not brought in a timely manner. Both the officer and complainant must be advised of such a decision.9 However, only a complainant has the statutory right to challenge such a decision by requesting a review within thirty days by the Commission under section 72(3) of the Act. Complaint reviews can deal with a wide range of matters up to and including whether or not a full investigation or a disciplinary hearing is warranted.
The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) supra., at pages 210 to 213 identified five factors to be taken into account when assessing the level of procedural fairness required for a particular administrative decision. These factors include: i) the nature of the decision; ii) the statutory context; iii) the significance of the decision; iv) the legitimate expectations of those affected by the decision; and, (v) the choice of procedure.
The Baker considerations have been applied to the public complaints process by the courts in a number of decisions. A helpful example is Sommers v. Ontario (Civilian Commission on Police Services) (2005), CanLII 15466, a decision of Divisional Court dated May 10, 2005. In Sommers the Court examined the procedural fairness requirements due to officers in complaint reviews under section 72.
The Court stated at paragraphs 20 to 24 of its decision:
The statutory context of the Act is particularly significant, in our view. An examination of s. 72 reveals a virtually complete code of how the Commission should proceed upon receipt of a complaint. The Commission is directed to take into account any material provided by the complainant
or chief of police, but is not directed to invite submissions or take into account any additional comments from the complained of officer. The Commission is merely directed to notify the police officer who is the
subject of the complaint of its decision and the action taken under s. 72(8). The detailed particularity of s. 72 leads us to conclude the section is designed to guarantee to a complainant an effective procedure for lodging a complaint.
The significance of the decision to the officer cannot be overlooked. No
one enjoys being subject to disciplinary proceedings. However, no findings have been made and no outcome attained. A finding of misconduct following a hearing can be said to be far more significant than the requirement to proceed to such a hearing, a hearing ringed with
procedural fairness protections.
The legitimate expectations of the officer affected by the decisions would surely be that no decision affecting their conduct could be made without affording them the right to counsel, the right to know the substance of the allegation against them, the right to make full answer and defence, to
examine witnesses and to make submissions. These rights are preserved in the process that is being followed pursuant to the Act.
Insofar as choice of procedure is concerned, as noted above, the Act is very detailed as to the procedure to be followed upon the receipt of a complaint from a member of the public.
Taking the above five factors into consideration, we conclude that the level of procedural fairness to be considered in these proceedings at this juncture is at the very low end of the scale.
It then went on to state at paragraphs 29, 30 and 32:
… the Applicants submit that there is a fundamental failure in the Commission’s process common to each application, in that no Applicant was told that a review of the chief of police’s decision was being sought and no Applicant was given the opportunity to either (i) reply to the complainant’s request for a review of the decision of the chief of police; or (ii) respond to any material filed by the complainant with the request for review.
As previously noted, s. 72(7) provides that on a review, the Commission shall review the decision, taking into account any material provided by the complainant or the chief of police … The section does not require the Commission to consider material provided by the officer who was the subject of a complaint, much less request that officer to submit further material in addition to what has already been submitted by the officer in response to the complaint.
… There is nothing in the section which requires the Commission to notify the officer of its review, provide the complainant’s material to him, or request of the officer further commentary.
To our mind the Court’s logic in Sommers applies to an initial vetting of a complaint focusing on the question of its timeliness under section 59(4).
This is a decision that must be made within thirty days of receipt. The chief is not directed to invite submissions from the officer or take into account any comments. The officer has no status to request a review by the Commission of the Chief’s decision on this issue. Further, if a complainant were to request such a review, the officer has no right to make submissions or participate.
This is in stark contrast with section 69(18) of the Act. It reads:
69(18) If six months have elapsed since the facts on which a complaint is based first came to the attention of the chief of police … no notice of
hearing shall be served unless … the Commissioner (in the case of a member of the Ontario Provincial Police) is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing. [emphasis added].
The use of the term “shall” indicates that this is a mandatory requirement. A decision under section 69(18) is not a procedural or screening decision; but rather a bona fide limitation period going to jurisdiction.
An attempt to depart from the mandatory section 69(18) limitation period requires a higher level of procedural fairness including, at a minimum, entitlement to notice and the opportunity to make written submissions. This has been recognized in a number of decisions.10
We certainly agree with the Hearing Officer that sections 59(4) and 69(18) are not comparable.
In any event, we observe that the requirements of section 68(19) have been met in this case. Mrs. Ray’s complaint is dated October 13, 2004. Constable Byrne was served with a Notice of Hearing on March 7, 2005. That was well within the timeframe contemplated by section 69(18).
We also agree that there is no obligation on the Prosecution during a disciplinary proceeding to prove that the Commissioner or delegate has turned their mind to each and every of the myriad vetting decisions necessary in the initial processing of public complaints.
In the absence of evidence to the contrary, it does not seem unreasonable for a Hearing Officer to presume the regularity of the initial processing of a complaint. That is not to suggest that there may not be cases where an officer may choose to raise concerns about such procedural issues. However, to our mind this should be by way of
preliminary motion or during the presentation of evidence.
For the above-noted reasons we are satisfied that the Hearing Officer did not err in his interpretation and application of section 59(4).
That brings us to the Appellant’s argument that the Prosecution failed to establish an essential element of the complaint against Constable Byrne.
Constable Byrne was charged with the disciplinary offence of discreditable conduct. Specifically, section 2(1)(a)(xi) of the Code which reads:
2(1) Any … police officer commits misconduct if he or she engages in, (a) DISCREDITABLE CONDUCT, in that he or she, …
(Metropolitan) Police Services Board supra.,
(xi) acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force …
In this case, the specific discreditable conduct concerned an alleged failure by
Constable Byrne to pay a bill incurred during the course of his secondary employment.
In his decision with respect to conviction dated June 2, 2006 the Hearing Officer reviewed the evidence. The facts are not in dispute. Constable Byrne requested and received the assistance of the Rays to allow him to fulfill a snow removal contract.
The question of the cost of the Ray’s service was discussed but deferred until the return of Mr. and Mrs. Ray from vacation. Constable Byrne was to contact them. As the Hearing Officer noted, “Ray testified that he would not have completed the job for free”.
The Hearing Officer described Mrs. Ray’s evidence that when Constable Byrne did not contact them she mailed not one, but two invoices to his home address taken from the local phone book. Copies of both invoices were made exhibits.
At page 7 of his decision, the Hearing Officer stated:
I find that I believe that Elaine Ray mailed the invoices to Byrne. I also believe that Bynre received these invoices. I do not have absolute proof, however, I do believe in the mail system and also the address to be the residence of Byrne. I find it an illogical conclusion for Defence to raise the rationale that Prosecution must have proof that Byrne did receive these invoices. It is known to Byrne that the service was provided. He was present at the time and there was no need whatsoever for Elaine Ray to mail any invoices. It is known that Byrne never attended the Ray family after this service was provided. … It is only fair and right for Byrne to pay for services he received.
The Hearing Officer also noted that Constable Byrne did not testify and “I find no evidence from the witnesses that the mail was not received.”
Our role on an appeal is not to second-guess the Hearing Officer. Rather, it is to assess whether or not his or her findings lack evidentiary foundation or cannot reasonably be accepted.
We see no reason why it was not open to the Hearing Officer to find that Constable Byrne knowingly incurred a debt to the Rays that he failed to pay. Further, it was open to the Hearing Officer to find that the two invoices were mailed by Mrs. Ray to Constable Bryne’s home address where in the normal course of events (and in the absence of any evidence to the contrary) they would have been received.
Further, we observe that the allegation against Constable Byrne contained in the Notice of Hearing concluded with the following sentence: “You knew or reasonably ought to have known that your conduct was, and continues to be, inappropriate.”
Even if Constable Byrne did not receive the invoices, he was clearly advised by e-mail on December 14, 2004 that he had an outstanding debt. This debt was still not paid as of the commencement of the disciplinary proceeding in May of 2006, more than three years after it was incurred.
This brings us to the issue of penalty. The factors to be considered by the Hearing Officer when imposing penalty are well established. 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 force.
Other considerations can be relevant either mitigating or aggravating a possible penalty. These include the officer’s:
employment history and experience;
recognition of the seriousness of the transgression; and
handicap or other personal or family circumstances.
Additional factors can include provocation, the need for specific or general deterrence, concerns arising from management’s approach to the conduct in question and consistency.
Our role on appeal is to assess whether or not the Hearing Officer has fairly and impartially applied these sentencing principles. We have the authority to vary a penalty only when the essential factors have not been properly considered or there is manifest error. We cannot substitute our opinion for that of the Hearing Officer.
Mr. Cocker argued that the subject matter of the disciplinary proceeding was essentially a civil debt.
We acknowledge that the police disciplinary scheme does not extend to all aspects of a police officer’s off-duty life. Section 74(2) of the Act states:
74(2) A police officer shall not be found guilty of misconduct if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force.
The case before the Hearing Officer concerned a matter that occurred while Constable
Byrne was not working as a police officer.
However, the Act limits the ability of officers to engage in work outside of their normal policing duties. Section 49(1) provides:
49(1) A member of a police force shall not engage in any activity,
(a) that interferes with or influences adversely the performance of his or her duties as a member of a police force, or is likely to do so;
(b) that places him or her in a position of conflict of interest, or is likely to do so;
(c) that would otherwise constitute full-time employment for another person; or
(d) in which he or she has an advantage derived from employment as a member of a police force …
(3) A member of a police force who proposes to undertake an activity that may contravene subsection (1) or who becomes aware that an activity that he or she has already undertaken may do so shall disclose full particulars of the situation to the chief of police or, in the case of a chief of police, to the board.
(4) The chief of police or the board, as the case may be, shall decide whether the member is permitted to engage in the activity and the member shall comply with that decision.
The conduct before the Hearing Officer concerned a debt incurred during the course of activities authorized under section 49(4).
Section 8 of Part III of O. Reg. 123 /98 as amended (under the heading “Ontario
Provincial Police Force”) states:
- No member of the Force shall contract debts that the member is unwilling or unable to discharge and that may interfere with the performance of his or her duties as a member of the Force.
The Hearing Officer noted at page 3 of his decision with respect to conviction that “Ray testified that she never initiated any contact in person or via phone with Bryne as she testified he was an OPP officer. Ray testified she has six children and did not want them to be the source of retaliation or have them labeled.”
The Hearing Officer also noted at page 8:
In a small community, there are no secrets. People share experiences openly and word travels swiftly be it positive or negative when living in a small community.
Word in this case traveled about Provincial Constable Byrne. This resulted in the difficulty he faces with the organization at this time, which brings him here today.
These comments are also reflected in the Hearing Officer’s penalty decision of June 21,
In our view, given the above, it would not be correct to characterize this disciplinary proceeding as being essentially about the collection of a civil debt incurred in a transaction unconnected to Constable Byrne’s status as a member of the Ontario Provincial Police.
That being said, we have difficulty with some aspects of the Hearing Officer’s analysis of Constable Byrne’s conduct in his penalty decision.
In that decision the Hearing Officer correctly identified the three key factors to be taken into account in assessing penalty (nature of misconduct, ability to reform and damage to reputation of the Service).
The Hearing Officer then described the conduct in question as being “serious in nature” and that “I believe that this hearing has brought the message home to Constable Byrne”.
The Hearing Officer acknowledged that the debt had been repaid and then spoke to the question of deterrence. Specifically, he stated at page 3:
It is necessary to consider general deterrence for all members of the Ontario Provincial Police. Ontario Provincial Police Officers must understand they are to conduct themselves in a professional manner at all times. The Penalty must reflect that the Ontario Provincial Police will not tolerate unacceptable behaviour. The standard of conduct for police officers is by nature of the profession higher than what is expected of others.
There must also be specific deterrence for the members to send a message that individuals will be held accountable for their conduct.
With the greatest of respect to the Hearing Officer, we believe these are overstatements.
At issue was a small outstanding debt. How it was dealt with by Constable Byrne brings into question his ability to manage his finances. As well, no doubt, it has adversely affected his standing as an OPP officer in his community and the reputation of his employer. However, there is no suggestion that Constable Byrne abused his police powers, neglected his sworn duty, breached a confidence or was guilty of unnecessary use of force. These would be serious matters.
In the broader employment context, we are dealing here with minor misconduct. Further, to deal with such issues using the full weight of the formal disciplinary process (with days of hearings in different communities across the Province using the time of a
dozen individuals) seems like a disproportionate response. It is unfortunate that all concerned could not have agreed to deal with this matter by informal resolution, performance management or possibly, financial counselling.
In addition, we do not see why Constable Byrne’s lack of diligence in managing his own affairs requires a severe penalty directed at deterring all other Ontario Provincial Police officers from poorly managing their personal affairs. Not every disciplinary offence requires a penalty directed at general deterrence.
By way of example, we note McGuire and Ontario Provincial Police (1977), 1 O.P.R.
346 (O.P.C.). At page 348 of that decision the Commission observed:
In this case, the officer, by his action, really cost the force very little money. He could have stayed at the Red Dog Inn and been charged the single rate. He chose to stay at the home of a friend and charge the double rate. There is no indication that this has been other than a single occurrence, nor was there evidence adduced that this offence is endemic within the force, making a severe exemplary punishment necessary.
To our mind, the same logic would apply here.
The Hearing Officer properly acknowledged Constable Byrne’s lengthy service with the OPP. He observed that “his work is favourable to the organization and he could continue as a valued member of this service.” He noted that there were no previous cases that were “on point”. He then imposed a penalty of sixteen hours forfeiture (to be served on annual leave or rest days) pursuant to section 68(1)(f) of the Act.
We feel the number of hours imposed was excessive given Constable Byrne’s many years of positive employment, the minor nature of the offence, the ultimate settlement of the debt and the absence of a demonstrated need for a severe exemplary penalty.
Further, we note that the Hearing Officer attached to the penalty various directions relating to the period in which it was to be served and notification to be provided upon its satisfaction.
In Wolfe and Ontario Provincial Police (November 16, 2005, O.C.C.P.S.) the Commission concluded that under section 68(1)(f) of Act (as here) a Hearing Officer has authority to impose a forfeiture that required penalty be served by working what would otherwise be time off.
The Commission then went on to state at page 14:
However, this authority must be balanced with practical considerations. A Hearing Officer would normally not have any direct knowledge of an officer’s schedule, commitments or the operational requirements of the particular unit where the officer is employed. Accordingly, to our mind the
question of the timing of the satisfaction of the penalty is a matter best left to the officer’s unit commander.
Further, we see no reason to require that the satisfaction of a particular penalty be personally reported by the officer in question to a unit (i.e. Professional Standards) where he or she is not employed.
Accordingly, we vary the penalty imposed by the Hearing Officer be deleting the requirement that: “One month be allocated to complete the disposition. You will advise Professional Standards Bureau when these hours have been completed.”
For these reasons, we would delete the similar directions imposed in this case.
We therefore vary the penalty from a forfeiture of sixteen hours to a forfeiture of eight hours. This is the number of hours proposed by Mr. Cocker at the original disciplinary proceeding. The eight hours is to be served on either annual leave or rest days. It is not subject to any conditions.
The appeal with respect to conviction is denied.
DATED AT TORONTO THIS 16TH DAY OF JULY, 2007.
Murray Chitra Garth Goodhew
Chair, OCCPS Member, OCCPS