Berger v. Toronto Police Service, 2007 CanLII 87225

OCCPS #07-08

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Berger v. Toronto Polcie Service, 2007 ONCPC 8

REASONS FOR DECISION

SERGEANT BRIAN BERGER

Appellant

TORONTO POLICE SERVICE

Respondent

Presiding Members:

Sylvia Hudson, Vice-Chair

Hyacinthe Miller, Member

Appearances:

Peter M. Brauti, Counsel for Appellant

Zoya Trofimenko, Counsel for the Respondent

Hearing Date: February 12, 2007

This is an appeal by Sergeant Brian Berger from a penalty imposed by Superintendent R. Clarke (the “Hearing Officer”) following pleas of guilt to two counts of neglect of duty, contrary to section 2(1)(c)(i) of the Code of Conduct found at O. Reg. 123/98 (the “Code”).

That penalty was forfeiture of twenty days or one hundred and sixty hours.

Background:

Sergeant Berger joined the Toronto Police Service (the “Service”) in 1975 as a cadet and subsequently performed various duties as a constable until 1990 when he was promoted to the rank of sergeant. From 1990 to 2004 he was assigned to plainclothes duties in the capacity of a supervisor at 52 Division. Over the years, he has maintained a discipline free employment record.

Sergeant Berger’s Unit at 52 Division was responsible for enforcement activities in the entertainment district of Toronto, specifically relating to prostitution, street level drug sales, ticket scalping and liquor offences. It was common for the officers of this Unit to be required in Court during the day before their scheduled shift or to attend to other police responsibilities.

In 2003-2004, a task force led by the RCMP was conducting an unrelated investigation into the Plainclothes Unit at 52 Division. A wiretap conversation revealed that Sergeant Berger was using an “informal system” of authorizing overtime and lieu time for both his subordinates and himself.

As a result, Sergeant Berger was charged with seven counts of misconduct: four were for neglect of duty and three were for deceit.

The Hearing:

The disciplinary hearing was held on November 9 and 25, 2005. Sergeant Berger pled guilty to two counts of neglect of duty. The other five charges were withdrawn.

An Agreed Statement of Facts was submitted for the two neglect of duty allegations. The first read:

During the period from Monday, December 15, 2003 to Thursday, April 15, 2004, Sergeant Brian Berger was attached to 52 Division.

He was performing supervisory duties as a detective in charge of the team within the Plainclothes Office. He was directly responsible for a number of police officers under his supervision.

He permitted officers under his realm of responsibility to work during times that were not scheduled and compensated them by authorizing them time off that was not scheduled. Further, Time Resource Management System (TRMS) entries made did not reflect the actual hours worked by the officers.

The second read:

In March of 2004, Sergeant Brian Berger (6526) was attached to 52

Division performing supervisory duties as a detective in charge of a team within the Plainclothes Office.

On Tuesday, March 9, 2004, he was scheduled to work from 4:00 p.m. to 12:00 midnight. Investigation revealed that at or before 9:27 p.m. Sergeant Berger left work and did not complete his full tour of duty.

Investigation revealed that the unit sign-in sheet indicates that Sergeant Berger was signed in and out at the scheduled shift times. Further, Time Resource Management System (TRMS) entries indicate he was paid for the entire shift.

The Appellant acknowledged that the use of the “informal system” was a breach of the rules and procedures of the Service.

Mr. Brauti called a number of witnesses who testified concerning Service practices and Sergeant Berger’s work history, character and reputation. They included Detective (retired) Leonard Smart, Detective Daniel Bell, Staff Sergeant David Woodley and Inspector David McLeod. As well, he provided the Hearing Officer with information from Sergeant Berger’s personnel file.

The Hearing Officer was also provided with a number of cases on the question of penalty.

On March 1, 2006 the Hearing Officer found Sergeant Berger guilty of two counts of neglect of duty and imposed a penalty of forfeiture of twenty days or one hundred and sixty hours off.

It is this decision that Sergeant Berger is appealing.

Appellant’s Position:

Mr. Brauti argued that the Hearing Officer erred in the following five points:

1. He concluded there was no evidence before him that the

“informal system” had management approval;

2. He injected his own personal experience on a major issue into proceedings without notice to the parties;

3. He misapprehended the evidence;

4. He failed to properly apply the “test case” approach by imposing a penalty greater than the minimum sentence; and

5. He imposed an unduly harsh sentence not in keeping with precedent.

Mr. Brauti conceded that the Appellant had committed misconduct by using an “informal system” that was not authorized by the Rules and Regulations of the Service. However, he asserted that the forfeiture of twenty days was an extreme penalty for employing a system that has existed for decades; has been used by thousands of officers; was known by virtually everyone; and, has been a “windfall” for the Service by allowing Units to limit exposure to claims for overtime pay and stay within budget.

Mr. Brauti drew our attention to Detective (retired) Leonard Smart’s evidence that throughout his thirty years with the Service, the “informal system” had been utilized at various divisions by many individuals.1

Mr. Brauti also referred us to Detective Daniel Bell’s testimony, in which he admitted his familiarity with the “informal system”. Further, Mr. Brauti asked us to note that in Sergeant Bell’s words, the “informal system” is necessary, and “sometimes it’s the only way to get the job done”. He also pointed us to Staff Sergeant Woodley’s testimony in which he acknowledged that while he does not condone the “informal system”, he was aware of its usage.

Mr. Brauti then drew our attention to the testimony of Inspector Dave McLeod. Inspector McLeod acknowledged “… that as a fact and as a factual issue, getting the job done … , requires flexibility” with respect to both hours worked and “making adjustments in order … to get the job done, while at the same time not accumulating premium pay”.2

Mr. Brauti submitted that the Hearing Officer failed to acknowledge Inspector McLeod’s testimony that he was aware of the need for the “informal system” but could not condone it as a manager. Mr. Brauti asserted that no one, including the Hearing Officer, dared to suggest that this “informal system” does not exist. Otis Canada Inc. v. International Union of Elevator Constructors, Local 50 [2000] O.J. No. 2605 (S.C.J.)

On his second point, Mr. Brauti argued that the Hearing Officer injected his personal experience by stating he was familiar with TRMS. He asserted that the “defence was ambushed” by the Hearing Officer’s revelation of his knowledge of TRMS. Further, he suggested that the Hearing Officer’s comments were raised without notice to the parties and ran contrary to the evidence given by other witnesses, including Inspector McLeod, who indicated that the inflexibility of TRMS was problematic. R. v. Find 2001 SCC 32, [2001] 1 S.C.R. 863 (S.C.C.) and R. v. Barria [2002] O.J. No. 1478 (S.C.J.)

On the third issue, Mr. Brauti characterized the Hearing Officer’s description of use of the “informal system” as being “fuelled with wide spread, systematic abuse, fed by dishonesty and wide open to abuse” as outrageous and over-the- top. He asserted this commentary demonstrated a total misapprehension of the evidence or a reasonable apprehension of bias. He argued that the evidence before the Hearing Officer did not suggest widespread serious fraud, dishonesty, daily lies or abuse.

He submitted that the “informal system” of give-and-take followed a long- established practice that had become convention in the Service. Mr. Brauti suggested that the use of the “informal system” was perhaps a “misguided” effort

1Transcript of Proceedings, November 25, 2005, pp. 14-15.

2Ibid., pp. 50-51.

to serve a greater good, but for years management “turned a blind eye” to the practice.

He asserted that there was no evidence that the use of the “informal system” caused damage to the reputation of the Service, as the Hearing Officer concluded. Mr. Brauti submitted that if serious abuse occurred as a result of the “informal system”, he was at a loss to understand why management failed to investigate the problem. He also pointed out that although Sergeant Bell was from the same Unit as Sergeant Berger and engaged in the same conduct, he was never charged.

On the next point, Mr. Brauti asserted that the Hearing Officer ignored the “test case” nature of the Hearing and imposed a sentence that is not in accordance with legal principles. Given that the evidence showed the “informal system” had been widely used throughout the Service, a reprimand would have been appropriate to signify to the Appellant and other officers that the use of the “informal system” was no longer acceptable. He suggested a less severe penalty would be consistent with the approach taken in other test cases. R. v. World Media Brokers Inc. [1999] O.J. No. 598 (Ont. Ct. Jus.).

Finally, he drew our attention to decisions in which the Service’s tribunals imposed less severe penalties for more serious misconduct such as drinking and driving, weapons offences, and criminality. With the exception of the cases presented by the Prosecution dealing with appellants who were supervisors, they had no relevance to this case. In any event, the penalties assessed were lesser than in Sergeant Berger’s case.

In closing, he asked that we vary the penalty to a reprimand.

Respondent’s Position:

Ms. Trofimenko, on behalf of the Respondent, argued that there were no errors in the Hearing Officer’s decision and the penalty should not be varied.

She asserted that the Hearing Officer’s decision provided a careful and thorough analysis of all the evidence including the Agreed Statement of Facts submitted by the Prosecutor and Defence. Due to the seriousness of the Appellant’s misconduct, particularly in his role as supervisor, the penalty imposed was not unfair and was within the appropriate range.

Ms. Trofimenko addressed the five points raised by the Appellant. On the first issue she noted that disciplinary hearings are administrative law proceedings of a labour relations nature. The Statutory Powers Procedure Act R.S.O. 1990, c. S.22 allows for a broader range of evidence compared to the strict standards required in criminal cases. Toronto Police Service v. Kelly (2006), CanLII 14403

(Div. Ct.), Gottschalk and Toronto Police Service (29 January, 2003, O.C.C.P.S.)

and Carson and Pembroke Police Service (9 March, 2006, O.C.C.P.S.)

Ms. Trofimenko argued that the defence witnesses did not testify that Service management condoned or approved of the “informal system”. Detective (retired) Smart characterized the practice as “what you don’t know won’t hurt you”. While Detective Bell condoned use of the “informal system”, he did not testify that management shared that view. She pointed out that when Staff Sergeant Woodley and Inspector McLeod were asked if they condoned the “informal system”, they replied that they did not.

Ms. Trofimenko asserted that the Hearing Officer’s finding was reasonable based on the evidence before him. He was in the best position to assess the evidence with respect to management’s position. Further, the Commission should not interfere unless there are fundamental mistakes resulting in an erroneous conclusion.

She observed that the Commission should review the Hearing Officer’s decision on a standard of reasonableness. Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301 (Div. Ct.), Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.C.C.P.S.), Allen and Hamilton-Wentworth Regional Police Service (1995), 2 O.P.R. 1001, (O.C.C.P.S.) and Nothing and Ontario Provincial Police (1993), 3 O.P.R. 1081 (O.C.C.P.S)

She argued that in imposing penalty, the Hearing Officer took his direction from the Commission’s decision in Carson and Pembroke Police Service, supra., with respect to the factors to be taken into account. On the same point she noted Reilly and Brockville Police Service (1997), 2 O.P.R 1163 (O.C.C.P.S.) and Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.).

On the second issue, Ms. Trofimenko argued that the Hearing Officer, with his many years with the Service, is entitled to draw on his specialized knowledge and experience in his analysis of the evidence. In his decision, the Hearing Officer observed that his personal experience helped him “understand and interpret the evidence” with respect to TRMS and plainclothes functions.

In support of this practice, Ms. Trofimenko noted Nason v. Hamilton-Wentworth (Region) Board of Commissioners of Police (31 August, 1984, Ont. Co. Ct.), Sterling and Hamilton-Wentworth Regional Police Service (1999), 3 O.P.R. 1356 (O.C.C.P.S.), Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.), Allen and Hamilton-Wentworth Police supra., and Morden and Peel Regional Police Service (1997), 3 O.P.R. 1140 (O.C.C.P.S.).

On the third issue, Ms. Trofimenko submitted that the language used by the Hearing Officer does not warrant a review of his decision. The Hearing Officer was entitled to “reasonably characterize behaviour based on the evidence before

him”. She asserted, given the conclusions reached, the language used was a correct characterization of Sergeant Berger’s activities, bearing in mind the public’s interest in the transparency, integrity and accuracy of Service systems.

On the fourth point, Ms. Trofimenko argued that the Hearing Officer did not err in rejecting the defence request for a “test case” approach when imposing penalty. It was the Hearing Officer’s prerogative to treat this case like any other disciplinary matter, as the evidence before him did not meet the threshold of a “test case”. R. v. Dwyer [1999] O.J. No.2042 (C.A.) and R. v. Nayanokessic [2004] O.J. No. 1029 (O.C.J.)

She pointed out that there was no evidence before the Hearing Officer that this was a “test case”. The Service had already laid charges against two other police officers arising out of the related matter. Ion and Toronto Police Service (27

October, 2005, Hearing Officer N.T. Tweedy) and Knott and Toronto Police

Service (7 July, 2005, Hearing Officer N.T. Tweedy)

She observed that police officers are held to a higher standard. Bright v Konkle (1997), 2 P.L.R. 481 (Ont. Bd. Inq.). Furthermore, falsifying time-records or leaving work early is a fundamental breach of trust that, in some cases in other workplaces, has led to dismissal or suspension. Leisure World Nursing Homes Ltd. and S.E.I.U., Loc. 204 (1990), 1990 CanLII 12721 (ON LA), 9 L.A.C. (4th) 338 (Brent), Columbian Chemical Canada Ltd. v. Teamsters Union Local 879 (1995), 41 C.L.A.S. 306 (Burkett) and Stelco Inc. (Hilton Works) and U.S.W.A. (Currie) (1994), 1994 CanLII 18648 (ON LA), 40 L.A.C. (4th) 229 (Tacon)

Ms. Trofimenko submitted that the Hearing Officer did not err by imposing a penalty that was inconsistent with precedent. In considering penalty, she asserted the Hearing Officer carefully assessed the most appropriate cases made available to him. Further, consistency of penalty is not an “absolute”.

Ms. Trofimenko noted that penalties relating to breach of record-keeping, leaving work, failing to report, punctuality and other similar actions in some cases had resulted in dismissal, demotion, suspensions and forfeiting of time off, such as a one year demotion, six months demotion and forfeiture of twenty days’ leave. Leeder and Metropolitan Toronto Police Service (1970), 1 O.P.R. 37 (O.P.C.), Calder and Metropolitan Toronto Police Service (1975), 1 O.P.R. 202 (O.P.C.), Fiddes and Niagara Regional Police Service (1976), 1 O.P.R. 291 (O.P.C.), More and York Regional Police Service (2001), 3 O.P.R. 1450 (O.C.C.P.S.), Valois and Toronto Police Service (24 November, 2003, O.C.C.P.S.)

Ms. Trofimenko reminded us that, “Supervisors must supervise … The buck stops there …”. Fright and Hamilton-Wentworth Regional Police Service (2002),

3O.P.R. 1593 (O.C.C.P.S.). She noted that Sergeant Berger was in a position of leadership, with the responsibility to guide, instruct and set an example for his

subordinates. Given the Appellant’s status as a supervisor, expectations are higher.

Further, she argued that it was an aggravating factor for a supervisor to influence a junior officer to participate in misconduct. The Hearing Officer took those factors into consideration in imposing penalty. Lewin and Toronto Police Service (2001), 3 O.P.R. 1472, (O.C.C.P.S.), Hrycyschn and Ontario Provincial Police (1993), 2 O.P.R. 956 (O.C.C.P.S.) and Andrews and Midland Police Service (12

November, 2002, O.C.C.P.S.)

Ms. Trofimenko reiterated that in this case, the Hearing Officer made no manifest error in the penalty imposed as it is well within the bounds of precedent. Accordingly, she requested that the Commission dismiss the appeal and confirm the penalty of twenty days or one hundred and sixty hours off.

Decision:

The findings of misconduct by the Hearing Officer are not in dispute. The issue before us concerns the appropriateness of the penalty imposed by the Hearing Officer. The question we must determine is whether the penalty imposed by the Hearing Officer was reasonable and within the bounds of precedent.

The position of the Commission on appeal penalty is clear and well established. As was noted in Carson and Pembroke Police Service supra., at pages 14 to 15:

The factors to be taken into account when assessing a suitable penalty are well established. In Williams and Ontario Provincial Police this Commission identified three key elements. They include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police service that would occur if the officer remained on the force.

Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach. Other factors can be relevant, either mitigating or aggravating a penalty, depending on the conduct in question. These include the officer’s employment history and experience, recognition of the seriousness of the transgression and handicap or other relevant personal considerations.

In addition, when imposing a penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.

Our function in a disciplinary appeal is not to second-guess the hearing officer or substitute our own opinion. Rather, it is to assess

whether or not the Hearing Officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is a manifest error in principle or the proper factors are ignored, we may vary the disposition. This is not lightly done.

How then, do these principles apply to this case?

Counsel for the Appellant argued that the Hearing Officer erred in determining that there was no evidence of the existence of an “informal system” of scheduling that had management approval. We agree with the Hearing Officer that there was no evidence before him to substantiate that Service management approved the use of any system to breach established procedures with respect to TRMS. Four witnesses testified they were aware of a system of give-and-take, however, none testified that management had sanctioned the practice.

Indeed, when Retired Detective Leonard Smart was asked by the Prosecutor whether the “informal system” was supported by management, his testimony was “what you don’t know won’t hurt you” and that with respect to dealing with the realities of shift scheduling, he “did not need to expose his decisions, unless it was requested of him by upper management”. In addition, Detective Bell acknowledged that the use of the “informal system” was a breach of the Rules and Regulations and Uniform Working Agreement.

With respect to the Appellant’s position concerning the Hearing Officer injecting his own personal experience into the matter without notice to the parties, we note that at page 52 of the Transcript of Proceedings for November 25, 2005 the Hearing Officer stated on the record “I have an understanding of ah, TRMS for the benefit of counsel and ah, the prosecution …”. This served to alert those present to that fact.

Even if that were not the case, it is well established that hearing officers may bring to disciplinary proceedings both their practical and specialized knowledge of the workings of their police services. This allows a Hearing Officer to both understand and interpret the evidence before either him or her. Certainly, we see no reason why this principle cannot extend to familiarity with a common Service wide system for scheduling.

The Appellant argued that the Hearing Officer’s description of the “informal system” was intemperate. In reviewing the reasons of a Hearing Officer it is not our role or function to be overly critical of the language used nor to focus on mistakes that do not affect the decision as a whole. This is in recognition of the fact that the Hearing Officer is a lay tribunal without formal legal training.

The Hearing Officer’s language in this case was certainly strong. However, to our mind, it did not rise to the level where it invalidated his approach to the evidence or his assessment of the Appellant’s admitted misconduct.

On the issue of the “test case” approach to imposing sentence, we agree that there was no evidence before the Hearing Officer that this matter was a “test case” to resolve a point of law.

That brings us to the normal dispositional considerations. In this case the Hearing Officer described Sergeant Berger’s conduct as being very serious, damaging to the reputation of the Service and reflective of conduct that warranted general deterrence.

Sergeant Berger pled guilty to two charges of neglect of duty. He acknowledged that he failed to sign in and out on the Unit sign-in sheets, that an improper entry was made to TRMS, and that he did not work a full shift as was recorded. Furthermore, he acknowledged that the “informal system” was a breach of the Rules and Regulations of the Service. We agree that this is serious misconduct.

Further, as the Hearing Officer noted, the Appellant was an experienced supervisor, a respected middle manager responsible for the guidance, coaching and leadership of the officers in his Unit, consistent with Service directives. It is undisputed that he not only authorized his subordinates to benefit from documenting hours for time not spent at work, for not recording all of the hours they worked and for taking lieu time that was not accurately documented, but, also personally violated the rules for his own benefit.

We agree that this elevates his actions beyond a situation in which a reprimand would be an appropriate penalty. The argument that the “informal system” was somehow permissible because of the officers’ dedication to duty and their apparent willingness to put in extra hours without claiming overtime, is not a valid rationale for willful misrepresentation of hours worked and entitlement to time off.

The requirement for scheduling shifts in policing is complex. The Service has a system of policies, procedures and systems in place that serve the purpose of ensuring the integrity of accounting for members’ time in the context of Collective Agreements. The objective is to accurately document the myriad of activities police officers engage in, including hours worked, approved leave, accrued overtime entitlements, etc. Members of the Service, Service management and the Board must be able to rely on the accuracy of this record-keeping.

We agree that abuse of the system is damaging to both the reputation of the Service and must be deterred. That being said, the evidence before the Hearing Officer appears to have been that Sergeant Berger’s actions were not unique.

In some parts of the Service, there appears to have been an ongoing practice of ignoring the scheduling rules for certain purposes. The reasons for this are outside the scope of our review, but the undisputed evidence before the Hearing Officer was that the misconduct with which Sergeant Berger was charged was

not isolated to his Unit. Indeed, it would appear that in certain places a climate of

“don’t ask, don’t tell” existed or had existed for certain scheduling practices.

This does not condone Sergeant Berger’s misconduct, but rather provides an important context that the Hearing Officer does not acknowledge in his decision.

Both this Panel and the Hearing Officer had a number of cases brought to our attention on the question of consistency of penalty. Many of them concerned allegations of discreditable conduct as opposed to neglect of duty or involved substantially different fact situations and thus were not particularly helpful.

Two of these cases concerned officers recently found guilty of similar activities by Service hearing officers. Constable Knott was found guilty of five counts of neglect of duty and received a penalty of forfeiture of ten days or eighty hours off. Constable Ion was convicted of neglect of duty and assessed a penalty of forfeiture of two days or sixteen hours off. That conviction was overturned on appeal to this Commission. Neither of these officers was a supervisor.

The Hearing Officer acknowledged Sergeant Berger’s service record and reputation. These factors are certainly worth noting. At the time he was charged, Sergeant Berger was a 29-year veteran of the Service with an exemplary employment record. He had been awarded the Police Exemplary Service Medal.

Prior to these events Sergeant Berger had not been disciplined. On this point we note that the decision of the Hearing Officer makes no reference to the important concept of progressive discipline particularly with respect to a situation of first time misconduct.

Further, the Performance Appraisal introduced into evidence reflected only “superior” or “exceeds” ratings. Sergeant Berger is clearly a highly respected and productive officer. He accepted full responsibility for his actions with his guilty plea. Rehabilitation is not at issue.

The above are significant mitigating factors that must be properly acknowledged and given significant weight. Taking this into account; acknowledging the need to respect principles of progressive discipline; and, given the context of the misconduct in question we believe that the penalty imposed was excessive.

We believe that the relevant principles would be more properly reflected by a penalty of forfeiture of ten days or eighty hours off. Accordingly, we allow this appeal and vary the penalty as such.