Karklins v. Toronto Police Service, 2007 CanLII 89249

OCCPS #07-14

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Karklins v. Toronto Police Service, 2007 ONCPC 14

REASONS FOR DECISION

CONSTABLE IMANTS KARKLINS Appellant

TORONTO POLICE SERVICE Respondent

Presiding Members: Murray Chitra, Chair Sylvia Hudson, Vice-Chair Hyacinthe Miller, Member

Appearances: Mr. Harry Black, Counsel for Appellant Mr. Robert Fredericks, Counsel for the Respondent

Hearing Date: April 12, 2007

This is an appeal by Constable Imants Karklins from a finding of guilt imposed by Superintendent Neale Tweedy (the “Hearing Officer”) on January 18, 2006 for one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Schedule Code of Conduct, O. Reg. 123/98 as amended (the “Code”).

On June 27, 2006 the Hearing Officer imposed the penalty of dismissal in the absence of resignation within seven days. Constable Karklins also appeals that penalty.

Background:

Constable Imants Karklins joined the Toronto Police Service (the “Service”) in 1982. He became a First-Class Constable in 1985. Constable Karklins has spent most of his policing career at 55 Division.

On the evening of December 8, 2000, Constable Karklins was on uniform patrol duties accompanied by a junior officer, Constable Ryan Forde, who was in training. At approximately 7:18 p.m. Constable Karklins stopped a car being driven by Antonio Ferreira (the “motorist”) at Gerrard Street East and Woodbine Avenue because the rear licence plate of the vehicle was hanging loose, supported by only one bolt.

The motorist did not have his driver’s licence, vehicle registration or insurance documentation. However, he provided Constable Karklins with his correct name, date of birth, address and driver’s licence number, which he had memorized. He assured Constable Karklins the vehicle was his and properly insured.

Constable Karklins checked this information on the mobile data terminal in his police vehicle. Records showed that the motorist was a properly licensed driver living at the address provided. However, the licence plate was in the name of the motorist’s wife and belonged on another vehicle.

Constable Karklins conducted further inquiries and discovered there were two Antonio Ferreiras. The motorist was born on January 10, 1969 and the second Antonio Ferreira was born on January 30, 1969. Their addresses and driving histories were different. The motorist had no previous convictions; the second Antonio Ferreira was a suspended driver.

Constable Karklins asked the motorist to explain the coincidence. The motorist informed Constable Karklins that he had previously been confused with an individual who shared the same name and that he was aware that the other individual’s licence was under suspension.

Constable Karklins served the motorist with five summonses for violations of the Highway Traffic Act R.S.O. 1990, c. H.8 as amended and the Compulsory Automobile Insurance Act R.S.O. 1990, c. C.25 as amended. These included: use plate not authorized for vehicle,¹ fail to apply for permit on becoming owner,² fail to surrender permit for motor vehicle,³ driver fail to surrender licence⁴ and operate motor vehicle without insurance.⁵ A court date of January 5, 2001 was identified on the summonses.

Constable Karklins removed the plates from the vehicle and the motorist made arrangements to have it towed.

The motorist appeared at court on January 5, 2001 to answer the five allegations. Constable Karklins was not in attendance. A trial date was set. Constable Karklins did not appear at trial and as a result, all five charges against the motorist were withdrawn.

The above is not in dispute. Other matters are.

Constable Karklins also prepared a further six summonses with the motorist’s home address but based on the second Antonio Ferreira’s driving history.

The summonses included four identical violations of the Highway Traffic Act and the Compulsory Automobile Insurance Act⁶ as well as two others. The latter included driving while under suspension contrary to section 53(1) of the Highway Traffic Act and driving without a licence contrary to section 32(1) of the same statute. The court date identified on these summonses was January 9, 2001.

Constable Karklins insists that he served this second set of summonses on the motorist at the same time he served the first set. As well, he states that he prepared and attempted to serve a Notice of Suspension on the motorist. He noted on the front of the Notice that service had been “refused”.

The motorist insists that he was never served with the second set of summonses nor did he have occasion to refuse service of a Notice of Suspension.

The motorist did not attend court on January 9, 2001. A further court date was set for July 27, 2001. Constable Karklins appeared on that date and testified. The motorist did not. As a result, Mr. Ferreira was convicted in absentia.

A number of penalties were imposed including a fine of $15,000 and fifteen days imprisonment for driving while under suspension. The court issued a warrant for the motorist’s arrest. The court records of the two Antonio Ferreiras were cross-referenced and merged.

On April 6, 2003, the motorist was driving in the Martingrove Road area in west Toronto. A patrol officer ran a check on his vehicle licence plate and identified the outstanding warrant. The motorist was stopped, arrested and taken into custody. After spending five days in the Metro West Detention Centre, his brother was able to convince authorities that he was not the second Antonio Ferreira.

Following his release from custody the motorist initiated a lawsuit against the Service. That lawsuit has since been settled for an undisclosed amount.

A Notice of Hearing was served on Constable Karklins on August 19, 2004 for the disciplinary offence of discreditable conduct. The allegations read:

Being a member of the Toronto Police Service, attached to No. 55 Division, on Friday, December 8, 2000, you were assigned uniform patrol duties and while on patrol you had occasion to stop and investigate a motorist, Antonio Ferreira.

You served Antonio Ferreira with Provincial Offences Act summonses in relation to violations of the Highway Traffic Act and the Compulsory Automobile Insurance Act.

You also issued Antonio Ferreira with other Provincial Offences Act summonses in relation to violations of the Highway Traffic Act and the Compulsory Automobile Insurance Act, but never served Antonio Ferreira with these documents. Antonio Ferreira was convicted of these offences in absentia.

In so doing, your actions were such that they were likely to bring discredit upon the reputation of the Toronto Police Service.

The Hearing:

The disciplinary hearing commenced on September 28, 2004. There were a number of adjournments. On October 26, 2005 Constable Karklins pled not guilty.

The Prosecution called Antonio Ferreira, Constable Ryan Forde and Detective (retired) Richard Browne as witnesses. The Hearing Officer received four exhibits, some which contained multiple items.

Constable Karklins testified in his defence. He stated that:

• He had a “gut feeling” that the motorist that he stopped on December 8, 2000 was the ‘suspended’ Antonio Ferreira;
• Instead of arresting the motorist, he prepared and served eleven summonses and attempted to serve a Notice of Suspension. The first set of five summonses were for the motorist (assuming his story was true) and the second set of six summonses were, just in case, should he turn out to be the ‘other’ Antonio Ferreira;
• It was his intention to sort out the question of identity either before or at court and have the incorrect set of charges withdrawn;
• He “inadvertently” put the wrong court date on the second set of summonses. This “error” arose either because he was not wearing his glasses or inadvertently “transposing” a five to a nine;
• The “error” on the court date for the second set of Summonses was replicated when he subsequently prepared two different Criminal Information Processing System (CIPS) reports for two different court dates;
• He did not attend court on the first set of summonses because he was on vacation; and
• He testified at court concerning the second set of tickets on July 27, 2001, but did not mention to anyone the first set because he “didn’t think about them at that time”.

Submissions were made by both counsel. On January 18, 2006 the Hearing Officer found Constable Karklins guilty.

Penalty proceedings were scheduled for April 24, 2006. On that date the Hearing Officer heard character evidence from Superintendent Robert Qualtrough, Detective Sergeant Alan Benton, Detective Clarence Blake, Staff Sergeant James Carleton, Detective Sergeant Robert Johnson, Constable Paul Griffin, Constable Shane Marchen, Detective Constable Steven Ottewell, Staff Sergeant David Simpkins, Constable John Stewart and Constable Phil Worrell.

As well, the Hearing Officer received ten further exhibits, including testimonials and detailed information from Constable Karklins’ employment file. Mr. Black proposed a penalty of forfeiture of eight to ten days pay and the Prosecution called for dismissal.

Proceedings were adjourned to see whether or not a last chance agreement with respect to penalty could be reached. Agreement was not possible.

On June 27, 2006 the Hearing Officer released a decision ordering that Constable Karklins be dismissed unless he resigned within seven days.

Appellant’s Position:

Mr. Harry Black appeared as Counsel for Constable Karklins. Mr. Black took issue with the disciplinary proceedings and described the process as a “hearing by ambush”.

He argued that the Hearing Officer:

1. erred with respect to the finding of misconduct and penalized Constable Karklins for matters not reflected in the Notice of Hearing;
2. imposed a penalty that was disproportionate and failed to apply the proper test for dismissal;
3. failed to give proper consideration to mitigating factors; and
4. ignored overwhelming evidence showing that Constable Karklins was still useful to the Service.

On the first point, Mr. Black argued that the Hearing Officer erred in law by broadening the scope of the hearing to include allegations that were more serious than those contained in the Notice of Hearing.

He argued that Constable Karklins attended the disciplinary hearing believing it might result in a finding of “investigative negligence”, but instead was ordered dismissed on what were in effect findings of unlawfulness, dishonesty, obstruction, untruthfulness, criminality, deceit, perjury and lying.

On these points Mr. Black cited the following cases: R. v. Geddes [1999] O.J. No. 4419 (Div. Ct.), R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3rd) 500 (Ont. C.A), Golomb and College of Physicians and Surgeons (1976), 1976 CanLII 752 (ON HCJ), 12 O.R. (2d) 73 (Div. Ct.), Smith v. Murdoch [1987] O.J. No. 827 (Div. Ct.), Gill v. Canada (Attorney General) [2006] F.C.J. No.1395 (Fed. Ct.), Monaghan v. Toronto Police Service (March 31, 2005, Div. Ct.), Henderson v. College of Physicians and Surgeons of Ontario 2003 CanLII 10566 (ON CA), [2003] O.J. No. 2213 (Ont. C.A.), Mondesir v. Manitoba Assn. of Optometrists 2001 MBCA 183, [2001] M.J. No. 497 (Man. C.A.) and Holden v. College of Psychologists [2001] A.J. No. 1333 (Alb. C.A.).

Mr. Black also submitted that the Hearing Officer had ignored relevant evidence and failed to take into account the unfairness of applying a different level of scrutiny to the evidence of Constable Karklins than to that of Mr. Ferreira. He argued that the Hearing Officer arbitrarily rejected the information and thought processes of Constable Karklins on the evening of December 8, 2000 and failed to address other evidentiary facts or consider the evidence in the context of the circumstances.

In support of this argument, Mr. Black cited: Tomie-Gallant v. Board of Inquiry (August 21,1996, Div. Ct.), R v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A), Gillespie v. Shockness (September 27,1994, Ont. Bd. Inq.), McCoy and Fort Francis Police Service (1969), 1 O.P.R. 16 (O.P.C.) and Pollock v. Hill and Cowley (November 19, 1992, Ont. Bd. Inq.).

Second, Mr. Black submitted that the Hearing Officer failed to apply the correct standard of proof, failed to apply the proper test for dismissal and imposed a penalty that was disproportionate. He argued that the penalty of dismissal is not consistent with other penalties imposed for similar offences. He drew our attention to Blowes-Aybar and Toronto Police Service (August 12, 2003, O.C.C.P.S).

Further, on this point, Mr. Black reminded us the Commission has previously noted that, “consistency is the hallmark of fairness”. He had provided the Hearing Officer with penalty cases, but suggested that they were not taken into consideration. Mr. Black drew these ten cases to our attention as well as Schofield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.) and D’Souza and Toronto Police Service (June 7, 2006, Hearing Officer N. Tweedy).

Mr. Black argued that the Hearing Officer erred in law by turning the test for dismissal into a “character attribute test”.

He directed our attention to cases where he asserted that senior police officers were never charged or convicted for failing to complete a thorough investigation. In particular, he noted Jane Doe v. Board of Commissioners of Police for Municipality of Toronto [1989] O.J. No. 5145 (Ont. G.D.), R v. Haynes [2000] O.J. No. 5145 (Div. Ct.) and R. v. Nelles (1982), 1982 CanLII 3803 (ON PROVCT), 16 C.C.C. (3rd) 97 (Ont. Prov. Ct.).

On the third point, Mr. Black argued that the Hearing Officer failed to give proper consideration to mitigating factors including Constable Karklins’ acknowledgement that he made a mistake. Further, Mr. Black asserted that there was no evidence on which the Hearing Officer could properly base a conclusion that Constable Karklins’ apology was insincere or “hollow”.

On the final point, Mr. Black submitted that the Hearing Officer ignored overwhelming evidence showing that Constable Karklins is still useful to the Service. He pointed out that thirteen officers gave compelling and supportive evidence on behalf of Constable Karklins.

Mr. Black reiterated that the dismissal of an officer is the most serious punishment that can be imposed in a disciplinary proceeding and must be reserved for those cases in which the conduct is so reprehensible that the officer is no longer useful to the Service. On this point Mr. Black cited Favretto and Ontario Provincial Police (2002), 3 O.P.R. 1570 (O.C.C.P.S.), Cate and Peel Regional Police (1998), 3 O.P.R. 1257 (O.C.C.P.S.) and Toronto (City) Police Service v. Kelly 2006 CanLII 14403 (ON SCDC), [2006] O.J. No 1758 (Div. Ct.).

Mr. Black pointed to Constable Karklins’ twenty-four years of good work history and numerous commendations. He noted that Constable Karklins is a very productive traffic officer whose monthly and yearly volume of summonses and parking tickets surpasses all of his colleagues. Further, Constable Karklins had a reputation for being a proficient Scenes of Crime Officer. He had also been a mentor to junior officers.

Mr. Black requested that the finding of misconduct and penalty be quashed or in the alternative that a penalty of less than dismissal be substituted.

Respondent’s Position:

Mr. Robert Fredericks, Counsel for the Service, requested that the appeal be dismissed. He argued that there were no errors in the Hearing Officer's decision and due to the extremely serious nature of Constable Karklins’ misconduct, the penalty of dismissal was not unfair.

Mr. Fredericks addressed the points raised by Mr. Black. With respect to the appropriate standard of review of penalties and fairness, he directed our attention to Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.) and Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.).

He asked us to be mindful of Gibson and Waterloo Regional Police (1986), 2 O.P.R. 707 (O.C.C.) where the Commission made it clear that it is hesitant to substitute its thoughts on the fairness of penalty for those of the Hearing Officer who heard the evidence, assessed the witnesses, and is close to the needs of the force and of the community.

He relied on the Commission's decision in Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.) in which the Commission identified three key criteria to be considered when imposing a penalty and noted these are also described in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.).

Mr. Fredericks submitted that the Commission should not intervene unless the Hearing Officer made a manifest error, ignored conclusive relevant evidence, misunderstood evidence or drew erroneous conclusions from it.

Mr. Fredericks submitted that the Hearing Officer did not broaden the scope of the hearing to include allegations of misconduct different from those set out in the Notice of Hearing and the Statement of Particulars nor did he penalize Constable Karklins for matters that were not included therein.

Mr. Fredericks argued that the Hearing Officer’s reasons for finding Constable Karklins guilty of misconduct were clear. The Notice of Hearing should not be given an unduly literal reading. Constable Karklins’ overall actions were not treated as a separate ground of misconduct, but as aggravating the seriousness of the alleged misconduct. Furthermore, Constable Karklins received full disclosure of all documentary evidence, pursuant to section 69(5) of the Police Services Act R.S.O. 1990, c. P.19 as amended (the “Act”).

Mr. Fredericks submitted that the Hearing Officer’s concern about Constable Karklins’ truthfulness and future usefulness to the Service properly influenced his decision. Coon and Toronto Police Service, supra., Vos and Peel Regional Police (1993), 2 O.P.R. 963 (O.C.C.P.S.), Trumbley and Pugh (1991), 2 O.P.R. 894 (O.C.C.P.S.), Bright v. Konkle (1997), 2 P.L.R. 481 (Ont. Bd. Inq.), Good Humor- Breyers, Simcoe and U.F.C.W., Loc.175 (2005), 2005 CanLII 94139 (ON LA), 140 L.A.C. (4th) 107, Natrel Inc. and C.A.W. Canada, Loc. 462 (2005), 2005 CanLII 94253 (ON LA), 143 L.A.C. (4th) 233, Vancouver (City) and C.U.P.E. Loc. 1044 (2006), 2006 CanLII 93325 (BC LA), 148 L.A.C. (4th) 406 and Johnson Controls, L.P. and C.A.W. Canada, Loc. 222 (2006), 2006 CanLII 93291 (ON LA), 150 L.A.C. (4th) 303

Mr. Fredericks drew our attention to Edwards v. Stouffville (Village) (1960), 129 C.C.C. 259 (Ont. C.A.), Re MacDermaid (1976), 1975 CanLII 387 (ON HCJ), 9 O.R. (2d) 170 (Div. Ct.), Bates v. Canada (RCMP Commissioner) [1985] F.C.J. No. 811 (F.C.), Henderson and Kincardine Police Force (1977), 1 O.P.R. 326 (O.P.C.), Crozier and Waterloo Regional Police (1993), 2 O.P.R. 948 (O.C.C.P.S.) and Jutasi and Kingston Police (1992), 2 O.P.R. 919 (O.C.C.P.S.) in support of his argument that an allegation of professional misconduct need not have the degree of precision required in a criminal prosecution and neither must the particulars be “word perfect”.

On the second point, Mr. Fredericks argued that given the seriousness of Constable Karklins’ misconduct, the penalty of dismissal was not unfair. He asserted that the Hearing Officer applied the proper test for dismissal as outlined in the Commission’s decision in Williams and Ontario Provincial Police, supra. Further, the Hearing Officer also took into consideration the principle that dismissal is reserved for the most egregious behaviour.

Mr. Fredericks submitted that the Hearing Officer is in the best position to determine the seriousness of Constable Karklins’ misconduct, the damage to the reputation of the Service and the importance of general deterrence. Consequently, the Commission should only intervene when there is a manifest error in principle. He submitted that while consistency of penalty is desirable, there is no uniform standard across the province and drew our attention to Gibson and Waterloo Regional Police Service, supra.

Mr. Fredericks submitted that the Hearing Officer properly concluded that a clear message must be sent to officers that deliberate and unlawfull harm to a member of the public would be “employment-threatening”. He pointed out that a single act of serious misconduct can outweigh a good employment record. He drew our attention to Nothing and Ontario Provincial Police (1996), 3 O.P.R. 1081 (O.C.C.P.S.). Mr. Fredericks submitted the Hearing Officer properly refused to accept Constable Karklins’ apology as a mitigating factor as he believed that it was “hollow”.

On the third point, Mr. Fredericks noted that the Hearing Officer did not fail to give proper consideration to mitigating factors such as Constable Karklins’ employment history and character evidence. He argued that although Constable Karklins’ employment history was good, it was not without blemish and as such a reduction in penalty for this reason was not appropriate.

On the point of usefulness to the Service, Mr. Fredericks argued that the Hearing Officer was particularly cognizant of Constable Karklins’ usefulness in his analysis of all of the facts relating to Constable Karklins’ misconduct. The Hearing Officer had a proper foundation for the decision that Constable Karklins could no longer be useful to the Service.

Mr. Fredericks requested that we dismiss the appeal and confirm the decision of the Hearing Officer.

Decision:

Conviction

Constable Karklins appeals his finding of guilt for one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code. That provision makes it a disciplinary offence for a police officer to act “in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation” of a police service.

The Commission’s role on appeals from findings of guilt is described at 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 was elaborated on 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.

How do these considerations apply to the facts of this appeal?

The Hearing Officer issued a detailed eighteen-page decision on January 18, 2006. In that decision, the Hearing Officer reviewed the evidence presented to him, properly described the burden of proof on the Prosecution (“clear and convincing standard”) and articulated his reasons for finding Constable Karklins guilty of discreditable conduct.

In his analysis, the Hearing Officer correctly identified the issue of credibility as being crucial to any determination of misconduct. He found that the motorist “gave his testimony in a clear and unambiguous manner” with no sign of “animus towards police officers generally, or Police Constable Karklins specifically … in spite of his five days of wrongful incarceration.”⁷

The Hearing Officer noted that the motorist was adamant that he only received five summonses and never was the subject of an attempted service of a Notice of Suspension. The Hearing Officer found the potential “of this man being mistaken on this issue very unlikely”.⁸

However, the Hearing Officer did not make this key finding solely on his observations of Mr. Ferreira’s testimony. The Hearing Officer properly stated that he was required to determine whether or not this “evidence makes sense in the context of other evidence accepted and whether his evidence is otherwise corroborated.”⁹

The Hearing Officer focused on a number of factors. This included the obvious fact that Mr. Ferreira was honest with Constable Karklins on December 8, 2000. Further, it was evident that Mr. Ferreira had every intention of disputing any charges brought against him. The Hearing Officer noted that Mr. Ferreira attended traffic court “for the very purpose of pleading his case” for the first set of summonses that he acknowledged receiving.¹⁰ This is in stark contrast with the fact that Mr. Ferreira did not appear for any of the dates set for the second set of summonses that he was adamant that he did not receive.

The Hearing Officer also noted the evidence of Constable Forde, the junior officer riding in the patrol car with Constable Karklins on December 8, 2000. Constable Forde participated in the vehicle stop; approached Mr. Ferreira’s vehicle with Constable Karklins; sat shoulder to shoulder with Constable Karklins in the cruiser while the Summonses were prepared; observed; and, had discussions with Constable Karklins about the number of summonses issued.

Constable Forde wrote in his memo book that only five Summonses were issued to the motorist and the vehicle plate seized. No entry concerning a number of tickets was made in Constable Karklins’ notebook. The Hearing Officer found Constable Forde’s contemporaneous notebook entries to be “clear and unambiguous” and “aligns with and corroborates Mr. Ferreira’s testimony”.¹¹

This is a reasonable and fair observation.

In his summary of the testimony before him the Hearing Officer noted the evidence of Detective (retired) Richard Browne. Detective Browne investigated Mr. Ferreira’s complaint against Constable Karklins. He interviewed Constable Karklins. Detective Browne examined Constable Karklins’ claim that he served Mr. Ferreira with a summons for driving while suspended and attempted to serve him with a Notice of Suspension.

Detective Browne’s testimony was to the effect that computer records disclosed that Constable Karklins did not receive formal confirmation from the Ontario Provincial Police of the ‘other’ Mr. Ferreira’s suspension until two hours after Constable Karklins allegedly attempted to serve both documents on the motorist. The Hearing Officer observed: “In Detective Browne’s experience Notices of Suspension are not issued prior to their expressed validation received from the Ontario Provincial Police.”¹²

The Hearing Officer also examined Constable Karklins’ explanation of events. He noted Constable Karklins’ testimony that he “lost track of the first set of five summons he issued, within the court scheduling process, but never the less was on holidays on that date, resulting in his failure to appear”.¹³

This is in stark contrast to the fact that Constable Karklins did not loose track of the second set of summonses and was able to appear in court for this set of summonses. There, he gave sworn testimony that he had served the motorist with the second set of six summonses.

At this court appearance Constable Karklins did not mention the first set of tickets as might be expected. This resulted in Mr. Ferriera being convicted of offences that he did not commit.

Further, between the alleged issuance of the second set of tickets and his testimony at court, Constable Karklins did not take any steps to clarify his concerns with respect to the real identity of the motorist because “his heavy workload caused him to forget and not complete the task.”¹⁴

The Hearing Officer was troubled by this explanation and did not accept Constable Karklins’ assertions that he believed the two men were one and the same and yet, subsequently failed to conduct a proper or timely investigation into the main reason he offered for issuing two different sets of tickets.

We share this concern.

Further, the Hearing Officer noted that despite Constable Karklins’ testimony that all eleven matters were served together, they were not processed as such by the officer. Rather, Constable Karklins prepared the first set of charges in a CIPS report on December 8, 2000 with a court date of January 5, 2001. He prepared the second set of six charges on December 12, 2000 with a court date of January 9, 2001.

From the above, the Hearing Officer drew the inference that “the second set of summons were treated differently, prepared at a later date and therefore not served on the motorist.”¹⁵

The Hearing Officer implicitly rejected the testimony of Constable Karklins, on the key issues. He found that Constable Karklins’ evidence was not reasonable and could not be relied upon, characterizing it as a “patchwork”, “flawed logic” and “investigative negligence”.

He did not accept Constable Karklins’ explanation that the assignment of different court dates was an error, a result of not wearing his reading glasses. He did not accept that Constable Karklins intended to appear in court with the motorist and give him an opportunity to validate his identity. Indeed, the Hearing Officer took issue with the “reverse onus” approach of requiring the motorist to prove his identity.

Overall, the Hearing Officer found Constable Karklins’ explanation of when and why he had served the second set of summonses and Notice of Suspension to be “not worthy of belief”. His testimony was rejected as untruthful.

To our mind this conclusion was certainly available to the Hearing Officer based on the evidence before him.

Further, the Hearing Officer articulated his finding in a well-written and reasoned decision. The Hearing Officer outlined at some length his rationale and provided an overview of the evidence on which he relied. He made clear findings of credibility. He summarized the process by which he arrived at his conclusions. He applied the correct standard of proof.

The Hearing Officer reasonably considered the evidence before him and reviewed it as a whole. Given:

• the testimony of Mr. Ferreira, Constable Forde and Detective Browne;
• the questionable explanations offered by Constable Karklins for his actions and many acknowledged errors. (This is striking given Constable Karklins’ lengthy experience and obvious expertise as a traffic officer); and
• the nature of Constable Karklins’ conduct after the alleged issuing of the second set of tickets (failure to attend the first court for the first set of summonses, preparation of two CIPS reports, failure to investigate the issue of identity and failure to alert the second court of the first set of tickets).

We find that there was more than sufficient factual foundation to permit the Hearing Officer to find Constable Karklins guilty of discreditable conduct.

Indeed, we observe that some of the evidence against Constable Karklins was quite damning. Leaving that aside, it cannot be said that the conclusions of the Hearing Officer as to the credibility of witnesses cannot be reasonably accepted or his essential factual conclusions are void of evidentiary foundation.

We find that the Hearing Officer thoroughly considered the evidence, properly exercised his discretion, made finding supported by the evidence before him and carried out his duties as one would expect from a lay tribunal.

Constable Karklins’ actions resulted in the imprisonment of an innocent man. It is hard to imagine any action on the part of a police officer more likely to bring discredit to the reputation of his or her police service.

Penalty

In Williams and Ontario Provincial Police, supra., the Commission identified the three key elements to be taken into account when assessing penalty. These 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 that would occur if the officer remained on the force.

There are other factors that can be relevant, either aggravating or mitigating the penalty depending on the misconduct in question. They include the officer’s:

• employment history and experience;
• recognition of the seriousness of the transgression; and
• handicap or other relevant personal or family circumstances.

Other relevant considerations could include provocation, the need for general or specific deterrence, concerns arising from management’s approach to the conduct in question and consistency.

The role of the Commission on a penalty appeal is well established. Our function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him or her. We can only vary a penalty decision where there is clear error in principle or relevant material facts are not considered. This is not something done lightly.

In the case before us, the Hearing Officer issued a twenty-one page penalty decision on June 27, 2006. Prior to issuing that decision he had the benefit of extensive submissions from both the Prosecution and Defence.

In that decision, the Hearing Officer summarized his factual findings. The essential conclusion was that Constable Karklins prepared two sets of summonses and did not serve the second set and a Notice of Suspension on Mr. Ferreira.

The Hearing Officer noted “… six questionable summonses and Notice of Suspension were prepared under Mr. Ferreira’s name and home address, but the date of birth of another Mr. Ferreira whose personal information was extracted from CPIC returns observed by Police Constable Karklins”.¹⁶

The Hearing Officer observed: “Police Constable Karklins then endorsed each of the six questionable summonses, attesting that he had personally served them and then swore to their personal service, one at a time, under oath before a local Commissioner of Oaths …”¹⁷

As a result, Mr. Ferreira was denied the opportunity to defend himself in court. The second set of charges was dealt with in Mr. Ferreira’s absence. The Hearing Officer noted that Constable Karklins testified at that proceeding and his evidence “resulted in a Justice of the Peace directing convictions on all charges that resulted in fines totaling in excess of $15,000.00 and additionally a fifteen day jail sentence. Police Constable Karklins misled the Justice of the Peace during his sworn testimony in the absence of Mr. Ferreira.”¹⁸

Subsequently, Mr. Ferreira was arrested and imprisoned and “notwithstanding his protest, he was placed in custody for a period of fifteen days while his family frantically attempted to convince authorities he was wrongfully arrested. After the five days of wrongful incarceration, he was released from custody and filed a civil statement of claim against the Toronto Police Service.”¹⁹

In his decision, the Hearing Officer properly identified the essential elements to be considered when imposing penalty. He cited Williams and Ontario Provincial Police, supra., Reilly and Brockville Police Service, supra., and Schofield and Toronto Police Service, supra.

He identified the misconduct as being “at the highest end of the serious spectrum”.²⁰ We agree. As a result of Constable Karklins’ actions, an innocent man was convicted of an offence he did not commit and was incarcerated. This is unconscionable.

Further, to our mind it was both correct and proper for the Hearing Officer to put Constable Karklins’ misconduct in context. The formal allegations against Constable Karklins focused on his failure to serve the second set of summonses and Mr. Ferreira’s resulting convictions in absentia.

However, the Hearing Officer was certainly entitled to examine events leading up to the convictions and the consequences that flowed from Constable Karklins’ misconduct. This is particular so, given Constable Karklins’ assertion of innocent error.

Further, this was not a case of a spontaneous mistake by a junior officer causing inconvenience to a member of the public. Constable Karklins is a senior experienced traffic officer who embarked on a course of conduct that resulted in a serious and preventable miscarriage of justice. Further, as the Hearing Officer properly observed, this misconduct involved dishonesty that “was repeated and the dishonesty spanned five years.”²¹

The Hearing Officer concluded that this behaviour warranted both general and specific deterrence and was not mitigated by any provocation on the part of Mr. Ferreira. Further, he found that Constable Karklins’ actions had the potential for “significant” adverse impact on the reputation of the Service.

These are fair observations.

The Hearing Officer also found that Constable Karklins displayed no recognition of the seriousness of his actions. It was argued that Constable Karklins “just screwed up” or “used bad judgment” and had no intention to hurt the motorist. It was also suggested that Mr. Ferreira had been fully compensated by the settlement of his civil suit against the Service.

The Hearing Officer however, concluded that Constable Karklins demonstrated “no evidence of contrition” and indeed, displayed “a remarkable lack of empathy for Mr. Ferreira”.²² He stated that it would be incorrect to believe that the payment of damages meant “all is now well”.²³ He went on to note that: “It is true defence counsel made a submission that the officer would apologize, in the last hour of submissions, five years after the event an apology rings hollow as honest atonement and I repeat there is no evidence of remorse before me.”²⁴

These conclusions were clearly open to the Hearing Officer.

The Hearing Officer spent a significant portion of his judgment examining Constable Karklins’ employment history and work experience. He set out Constable Karklins’ work history in detail.

He noted many complimentary letters, commendations and other entries in Constable Karklins’ personnel file. He referred to various character witnesses who had testified on Constable Karklins’ behalf. He noted that these witnesses consistently identified Constable Karklins as proficient, conscientious, well-liked and very productive in terms of traffic enforcement. However, he also observed “The witnesses had limited, if any, information regarding the findings against the officer.”

The Hearing Officer noted that Constable Karklins’ sick record was “exceptional” and his annual performance evaluations were “broadly complimentary”. Having properly acknowledged these positive factors, the Hearing Officer stated that Constable Karklins’ twenty-four year “important and significant” employment work contribution was not without “blemish”.

Those exceptions included comments by his supervisors in performance assessments over the course of several years. A 1995-96 assessment stated “his interaction or diplomacy in dealing with some members of the public does sometimes create unnecessary concern for himself as well as his co-workers & immediate supervisors.”²⁵

The1997-98 assessment, reported that he “appears to take some matters personally when dealing with some members of the public” and in 1998-99 that his “only negative concerns relate to the number of public complaints which results from his numerous contacts with motorists during H.T.A. enforcement”. More recently, in his 2003-04 assessment, Constable Karklins’ Unit Commander stated “unfortunately he has a reputation for alienating members of the public which is something we don’t want young officers to emulate.”²⁶

Of more relevance to the Hearing Officer was the fact that in 1998, Constable Karklins was convicted of the disciplinary offence of unlawful/unnecessary exercise of authority for shouting obscenities at a motorist for thirty minutes during a traffic stop. For that offence Constable Karklins received a penalty of forfeiture of three days. The same year Constable Karklins also completed a six-day training with a focus on professionalism and ethics.

Commenting on this history, the Hearing Officer observed “Two years later the officer’s attitude was the same, but the behaviour more egregious.” The Hearing Officer concluded, “On balance, I am of the opinion the Service needs to be concerned about the future conduct of Constable Karklins, self-reflection has not occurred, supervision and training has not helped.”²⁷

These concerns were clearly reflected in the Hearing Officer’s assessment for Constable Karklins’ potential for rehabilitation and possible future usefulness to the Service.

He properly stated that the potential for rehabilitation or reform is a critical factor to be taken into consideration when deciding upon an appropriate disposition. He concluded “I interpret the test for dismissal to be a character attribute test, which is fundamental to the needs of the profession, such as honesty, sound judgment and moral conscience.”²⁸

These are perhaps not the words that we would use to describe the test for dismissal. However, they are not far off the mark. The ultimate sanction for misconduct under the Act is dismissal. That penalty is reserved for the most egregious cases where the potential for rehabilitation is poor and the usefulness of the officer to the service is effectively spent.

In terms of the potential for rehabilitation singular errors in judgment are quite different from ongoing wrongdoing over an extended period of time. However, there may well be singular acts of misconduct that strike to the heart of the employment relationship and effectively exhaust an individual’s potential usefulness to perform the key duties of a police officer. Such singular acts may raise obvious concerns with respect to character.

The key duties of police officers are described in the Act. Section 42(1)(e) states that they include “laying charges and participating in prosecutions”.

In his penalty decision the Hearing Officer expressed strong reservations that Constable Karklins’ conduct in initiating charges against and participating in the prosecution of Mr. Ferreira raised overwhelming concerns about his abilities to perform such duties in the future. These concerns appear to have been heightened by the absence of “contrition or truthful explanation to mitigate the events”, inexperience or positive response to prior discipline.

In particular, the Hearing Officer had reservations that Constable Karklins’ deliberate actions in:

• initiating unwarranted charges;
• failing to conduct a proper investigation and prepare proper documentation;
• misrepresentation under oath concerning his service of the second set of summonses; and
• failure to bring relevant information forward

caused “… the Justice of the Peace and Provincial prosecutor to become unwitting parties to a miscarriage of justice.”²⁹ This in turn raised serious concerns about his ability to participate in court proceedings in the future with credibility.

While the language used by the Hearing Officer on these matters was perhaps a bit strong, it reflects a legitimate concern.

It is also evident that the Hearing Officer properly considered and applied the principle of progressive discipline in conjunction with all of the other appropriate sentencing factors. He identified numerous penalty cases offered by the Defence. He found that none of the cases tendered were similar enough in fact or key elements such as seriousness, mitigation, recognition of the seriousness of the misconduct or remorse to be helpful.

The facts of this case are certainly unique. We do however, note some parallels in Parent and Hawkesbury Police Service (1998), 3 O.P.R. 1249 (O.C.C.P.S.). That case concerned an officer, who amongst other things, was convicted of counseling a witness to lie. At pages 1256 and 1257 of that decision the Commission stated:

The charge of counseling a witness to lie to investigators … indicates conduct which touches the heart of an officer’s duties and can have a serious impact on his or her credibility. This is something which goes to the essence of an individual and determines that person’s character. An officer cannot allow his character to be questioned as it will affect negatively his or her credibility. Constable Parent never showed remorse or accepted responsibility for his actions. Rehabilitation is a personal decision and can only be successful if undertaken by the officer first, to be assisted by others and the Service. Further, this officer cannot rely upon a stellar career to compensate for the impact of these events. Originally hired in 1989, at the hearing he was a 3rd class officer, having just recently been demoted for another unrelated set of events. However, the basis for the recent demotion and these charges do have a common theme, that of lack of judgment or the exercise of poor judgment. This is especially troubling when seen in an officer with seven years service. The officer should have demonstrated better judgment based on experience acquired. The public knowledge that an officer of the Service has been found to have counseled a witness to lie would clearly be prejudicial to the Service’s reputation. Therefore the Commission concludes that the penalty of dismissal by the Hearing Officer is not excessive in the circumstances.

Given the above, it was open to the Hearing Officer to conclude that Constable Karklins had annulled his usefulness to the Service. Notwithstanding the positive character references, there was evidence before the Hearing Officer to permit him to have serious doubt about Constable Karklins’ potential for rehabilitation and his future usefulness as a police officer.

The penalty imposed is not unreasonable or outside of the range of penalties available.

In conclusion, we are satisfied that there was more than sufficient evidence before the Hearing Officer to support his conclusions with respect to penalty. Seen in total and given the surrounding circumstances, the evidence before the Hearing Officer disclosed a pattern of continuing and deliberate discreditable conduct that was not sufficiently mitigated to warrant a penalty of less than dismissal.

In our view, the Hearing Officer properly identified the relevant dispositional factors and applied them to the case before him. There is nothing in the Hearing Officer’s reasoning that is so evidently wrong, demonstrates a manifest error in principle or is so unreasonable that would cause us to interfere with his findings.

Accordingly, we dismiss the appeal with respect to both conviction and penalty and confirm the decisions of the Hearing Officer.

DATED AT TORONTO THIS 25TH DAY OF SEPTEMBER, 2007.

Murray Chitra Chair, OCCPS

Sylvia Hudson Vice Chair, OCCPS

Hyacinthe Miller Member, OCCPS

Footnotes

1. 1Contrary to section 12(1)(d) of Highway Traffic Act
2. 2Contrary to section 11(2) of Highway Traffic Act
3. 3Contrary to section 7(5)(a) of Highway Traffic Act
4. 4Contrary to section 33(1) of Highway Traffic Act
5. 5Contrary to section 2(1)(a) of Compulsory Automobile Insurance Act
6. 6Violations of sections 12(1)(d), 11(2) and 7(5)(a) of the Highway Traffic Act and section 2(1)(a) of the Compulsory Automobile Insurance Act
7. 7Decision of Hearing Officer, January 18, 2006, pages 15 to 16.
8. 8Ibid., page 16.
9. 9Ibid., page 15.
10. 10Ibid., page 15.
11. 11Ibid., pages 16 to 17.
12. 12Ibid., page 9.
13. 13Ibid., page 4.
14. 14Ibid., page 11.
15. 15Ibid., page 9.
16. 16Decision of Hearing Officer, June 27, 2006, pages 1 to 2.
17. 17Ibid., page 2.
18. 18Ibid., page 2.
19. 19Ibid., page 3.
20. 20Ibid., page 7.
21. 21Ibid., page 11.
22. 22Ibid., pages 9 and 11.
23. 23Ibid., page 15.
24. 24Ibid., page 16.
25. 25Ibid., page 6.
26. 26Ibid., page 5.
27. 27Ibid., pages 17 and 18.
28. 28Ibid., page 8.
29. 29Ibid., page 10.