Moraru v. Ottawa Police Service, 2008 CanLII 90938

OCCPS #08-01

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Moraru v. Ottawa Police Service, 2008 ONCPC 1

REASONS FOR DECISION

CONSTABLE ALEC MORARU

Appellant

OTTAWA POLICE SERVICE

Respondent

Presiding Members:

Roy Conacher, Member David Edwards, Member Hyacinthe Miller, Member

Appearances:

Michael A. Crystal, Counsel for the Appellant

Robert A. Houston, Q.C., Counsel for the Respondent

Hearing Date: Friday, February 22, 2008

This is an appeal from the penalty of resignation within seven days, or dismissal, imposed by Deputy Chief (retired) Terrence Kelly (the “Hearing Officer”) following a finding of discreditable conduct made against Constable Alec Moraru.

Constable Moraru pled guilty to one count of discreditable conduct contrary to section 2 (1)(a)(ix) of the Code of Conduct of Ontario Regulation 123, R.R.O. 1998 (the “Code”), which constitutes misconduct pursuant to section 74(1)(a) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”).

Background:

Alec Moraru began his policing career with the Nepean Police Service on August 22,

1993 as a fourth-class constable. In 1995, the police services of Nepean, Gloucester and Ottawa were amalgamated to become the Ottawa Regional Police Service, since renamed the Ottawa Police Service (the “Service”). In 1996, he became a first-class constable, a rank he continues to hold. Apart from one prior disciplinary matter, Constable Moraru appears to have an exemplary employment record.

On December 10, 1998, Constable Moraru was the subject of disciplinary proceedings following the suicide death of an officer in his platoon, for whom he had previously acted as coach officer. He believed that he was ordered not to disclose details of his

discipline to anyone. He was also referred to the Service’s Employee Assistance

Program.

On December 9, 2004, Constable Moraru was off duty. Carrying an empty briefcase, he entered a Loblaws store in which he regularly shopped. His subsequent actions were recorded by the store security video cameras.

While in Loblaws, he spent some time selecting items and placing them in his shopping cart. As evidenced in the video images, he appeared to be aware of the locations of the surveillance cameras as he travelled back and forth through the store. In addition to other items, Constable Moraru picked up several blocks of cheese, chocolate bars and some aftershave lotion. Eventually he placed his cart in a location, the view of which was blocked from the cameras by the adjoining merchandise. When he subsequently moved the cart, these items were no longer visible in the cart.

After some time in the store, he went to a self-service checkout line. He looked around the checkout area as he scanned what appeared to be a magazine and assorted food purchases. He bagged the items and paid for them with a credit card. He did not open the briefcase nor did he scan the items he had placed in the briefcase. He then stopped for a few minutes perusing articles at a display of boxed videos.

A loss prevention officer for Loblaws, JC1, stopped Constable Moraru outside the store. Constable Moraru showed JC his police service badge, then accompanied JC back into the store security room, where he was questioned. An attempt was made to open the briefcase, but the combination supplied by the Appellant did not work. The police were called.

The Appellant fled the store. He was pursued by two loss prevention officers and stopped by JC2. The Appellant swung at JC, hitting him on the arm. He stated that he had a gun, motioning with his hand in his pocket and causing them to believe he had a weapon. As Constable Moraru drove away the loss prevention officers recorded his licence plate number. Once at his residence, the Appellant removed the licence plates from his vehicle then went inside to sleep.

Constable Moraru was arrested later that day. When the briefcase was ultimately opened the aftershave, cheese and chocolate were discovered inside. Constable

Moraru was charged with theft under $5000, uttering a threat to cause bodily harm to JC and assault with intent to prevent a lawful arrest. He pled not guilty on the basis that he was not criminally responsible for his actions.

On April 13, 2006, Constable Moraru was found guilty of the three criminal charges, granted a conditional discharge, placed on probation for 12 months and assessed 120 hours of community service work. He was also required to attend treatment or

1Name modified.

counselling recommended by the probation officer and not to attend at any Loblaws store.

The Appellant appealed the conviction, but subsequently abandoned his appeal.

On January 20, 2005, Constable Moraru entered into therapeutic counselling with a Clinical Psychologist, Dr. Moira Tweedale. In February of 2005, Dr. Tweedale referred him to another Clinical psychologist, Dr. David Baxter, for testing.

As a result of the above, Constable Moraru was charged with the disciplinary offence of discreditable conduct. The particulars of the charge read:

On April 13, 2006, Police Constable Moraru was found guilty of the criminal offence of Uttering Threats to Cause Bodily Harm, contrary to Section 264.1 of the Criminal Code; Assault with Intent to Resist or

Prevent the lawful arrest of himself, contrary to Section 270 of the Criminal Code; and Theft under $5,000 contrary to Section 334 of the Criminal Code, before Judge S.A.J. March, Ontario Court Justice at Ottawa,

thereby committing an offence against discipline. Discreditable Conduct, contrary to O. Reg. 123/98 Schedule Code of Conduct, Section 2(1)(a)(ix) (“Code”) which action constitutes misconduct pursuant to Section 74(1)(a) of the Police Services Act.

On December 12, 2006, he was advised by the Service, in writing, that if he was convicted of this allegation, the penalties of demotion or dismissal might be sought.

The Hearing:

The disciplinary hearing commenced on December 12, 2006, at which time Constable Moraru pled guilty. The hearing continued on December 14 and 15, 2006, on the issue of the appropriate penalty.

Nine witnesses were called. Tendered as evidence were medical reports, the reasons for judgment and reasons for sentence from Mr. Justice March, two store security videos, seven performance evaluations attesting to the Appellant’s competence, professionalism, leadership and communication skills as a police officer, 11 letters of appreciation from the community dating from 1994, and 10 letters of support from family and work colleagues.

In his testimony, Constable Moraru acknowledged that he had been arrested, charged and found guilty of three criminal offences in relation to his theft of items from the Loblaws store. He also testified that he had been suffering from Post Traumatic Stress Disorder (“PTSD”), which was not disputed by the Prosecutor.

Constable Moraru described a number of events contributing to his illness: the suicide of an officer for whom he had been the coach officer, his transfer to another platoon in

1999, the choices he was given with respect to disciplinary options, his decision not to dispute the subsequent discipline imposed, and his belief that he had been ordered not to discuss the discipline with anyone. In 2003 he was transferred again, this time to a patrol area in a more rural, less stressful location. He mentioned that his PTSD symptoms abated somewhat after this second transfer.

Subsequently, there were several other troubling incidents: a “suicide call” he

responded to in August 2004 involving a 17-year old youth and his mother, who blamed herself for the young man’s death. Reminded of the events of 1998, the Appellant began having severe nightmares. A month later, while he was looking up the name of an officer with a similar surname to the recruit who committed suicide six years before, her name ‘came up’, as it was still on the Service database. In late 2004 he was involved with the security detail for President Bush’s visit to Ottawa. He became stressed to the point that he did not sleep for three days.

The events of December 9, 2004, occurred one day prior to the anniversary of the day on which he had been disciplined in 1998. He stated that he did not recall what happened at a certain point in the Loblaws store, that his illness took control of his actions, and that he was in a dream-like state.

Following his conviction for the Criminal Code offences, Constable Moraru began to receive therapy. He testified that he is a much stronger person now as a result of his psychotherapy. He continues to participate in counselling sessions and feels he is ready to go back to work.

Reverend David Kornelsen, pastor of the church where Constable Moraru completed his 120 hours of community service work, observed that he was a very diligent worker, polite, respectful, and well mannered.

Retired Ottawa police officer Cliff Bastien had worked with the Appellant for six years in the early 1990s. It was his experience that Constable Moraru was very meticulous in his work, trustworthy and calm. He never questioned orders from his superiors but did as he was told. He regularly came to work early and assisted his colleagues with tasks like cleaning snow off their work vehicles before shift and providing backup on calls

without being dispatched. Mr. Bastien had heard rumours about the 1998 discipline but noted that Constable Moraru told him nothing about it, indicating only that he had been ordered not to disclose any particulars.

Sharon Moraru described her husband as taking his job very seriously. He was always very professional and very structured. At the time of the suicide of his colleague in

1998, they had only been married a short time. Constable Moraru did not communicate with her about what happened at work. Several months afterwards, his behaviour changed. He was easily upset at changes in their domestic routine. He could not tolerate noise or light. They no longer socialized. Although he was not eating properly and his sleep was sporadic and frequently interrupted by nightmares, her husband continued to go to work every day. This behaviour lasted for approximately six years.

Shortly before the incident at Loblaws they hosted a party, inviting friends and members of her husband’s platoon for the first time. Mrs. Moraru felt he was in good spirits at that event. She never anticipated the December 9th, 2004 event. She commented that the relationship with her husband was peaceful, calm and open since he began attending therapy. As a result of the medical treatment, he understands his behaviour, is more relaxed and takes things less seriously. Mrs. Moraru has also attended counselling sessions with Dr. Tweedale.

Ms. Joanne Seymour-Morrison, Constable Moraru’s probation officer, testified that she met with him in person on June 6 and September 19, 2006. She described him as polite, self-motivated, and a hard worker. She also noted that while he understood what a diagnosis of Post Traumatic Stress Disorder meant, he seemed not to have insight into the effects PTSD had on his behaviour.

Constable Mark Desjardin and Constable Rob Miller testified as character witnesses for Constable Moraru, indicating that he was forthright, honest, and very professional. Constable Miller also noted that he had never seen the Appellant get upset about anything.

Doctor Reghuvaran Kunjukrishnan, a psychiatrist, testified that when he first assessed Constable Moraru he determined that the officer was suffering from the cumulative effects of trauma or severe PTSD, which had been manifesting since 1999. He last met with Constable Moraru on November 6, 2006. At that time he did not detect any signs

of PTSD. He advised that one-third of patients with PTSD fully recover; another forty percent experience mild symptoms but can return to their routine life. Another twenty to twenty-five percent have varying degrees of symptoms, but still manage. Eight percent continue to experience symptoms. He agreed with Doctor Baxter’s opinion that there was no reason why Constable Moraru should not return to active duty. He felt that he could rely on self-reporting by the Appellant and his wife.

Doctor Moira Tweedale, a registered clinical psychologist, has been Constable Moraru’s therapist since January 2005. Her diagnosis was that he had been suffering from PTSD and that the theft provided the opportunity to ventilate his inner conflict and stress. She testified that the Loblaws incident seemed like a dream to Constable Moraru, however, Dr. Tweedale admitted that she had not viewed the video. In her opinion, the probation officer had misunderstood Constable Moraru as he has accepted the diagnosis of his illness.

Dr. Tweedale stated that as a result of the therapeutic counselling, the Appellant was now a healthy person who was dealing with his stress in the normal ways. On his return to work, she would continue to see him monthly and would rely on self-reporting by Constable Moraru and his wife. She would share any concerns with Doctor Kunjukrishnan.

In his Reasons for Penalty The Hearing Officer, commenting on the store security video, stated:

It is clear from this exhibit that this was not an impulsive, spur-of-the moment action. This is more evident on observing Moraru proceeding to leave the store: stop at the DVD display, looking at the DVD’s and continuing to look around the store. On viewing this exhibit it would appear that the officer carefully planned this incident … there is no doubt

in the mind of this trier-of-fact that Constable Moraru fully understood what he was going to do when he entered the Loblaws store in December of

2004 and that, upon being arrested, attempted to use his position as a police officer to avoid the charges.3

As to the issue of PTSD and the doctors’ testimony the Hearing Officer stated:

I accept the testimony of Doctor Kunjukrishman [sic] and Doctor Tweedale that Constable Moraru was suffering from Post Traumatic Stress Disorder; however, I do not accept their testimony that these symptoms controlled the actions of Constable Moraru at the Loblaws store on that day.4

The Hearing Officer discounted Doctor Tweedale’s comments concerning her opinion that returning to the job and having a gun would be part of the Appellant’s rehabilitation process, since she had not viewed the store security video and was not aware of his conduct that day.

The Hearing Officer rejected Constable Moraru’s testimony about not recalling the events of the day of the incident, and that he had no control over his actions. He contrasted the facts that Constable Moraru remembered the reason for taking his brief case into the store, but not the actual events within the store.

The Hearing Officer did not accept the opinions of the clinical psychologists that Constable Moraru’s behaviour at the party prior to the Loblaws incident was not inconsistent with someone suffering from PTSD.

When the Hearing Officer turned his mind to the issue of mitigation he stated:

I must admit this case was different in that the evidence presented in this Tribunal, and in the criminal forum was overwhelming. Looking for mitigating circumstances was both difficult and challenging with respect to what would be the correct and appropriate sentence in this matter…

It is extremely important that every police officer understands that his or her primary loyalty is to the law, to upholding the law at all times, and to apprehending people who break the law, especially if the lawbreaker carries a badge.

3 Reasons for Decision, February 19, 2007 at pages 22 to 23.

4 Ibid., page 24.

These standards, which must be acceptable to both the community and police were paramount in my considerations.5

In concluding the Hearing Officer determined: “The actions, and the subsequent convictions, of Constable Moraru are extremely serious, which leads this Tribunal to believe that Alex Moraru’s usefulness as a police officer has been completely annulled.”6 The Hearing Officer then imposed a penalty of resignation with seven days, failing which Constable Moraru would be dismissed.

It is this penalty that is the subject of this appeal.

Preliminary Motion:

Counsel for the Appellant brought a motion to admit fresh evidence, being a report from Doctor Tweedale dated January 11, 2008. Counsel for the Respondent had no objection to admission of this report.

Decision on the Preliminary Motion:

The fact that there was no objection does not in and of itself make the evidence admissible. A hearing before the Commission pursuant to section 70(5) of the Act is an appeal on the record. The Commission, however, has the discretion to admit new or additional evidence as it considers “just”.

The Act does not describe what factors are to be considered in assessing whether it is “just” to admit fresh evidence. In past cases the Commission has applied the four point test set out in the Supreme Court of Canada case of Palmer v. Her Majesty the Queen (1980) 1979 CanLII 8 (SCC), 1 S.C.R. 759. In addition, in matters where dismissal may be the penalty, the Commission has previously admitted evidence which does not strictly fit the Palmer test.

Usually, this type of evidence relates to the behaviour of the officer after the hearing date, and it normally takes the form of a supplementary medical report or, if the officer is on duty, a supplementary performance appraisal. These types of reports may be relevant to the issue penalty, but not conviction since they relate to events which occurred after the hearing. If we determine that the Hearing Officer erred in assessing the penalty and we are called upon to impose our own penalty, then the new report may become relevant. On this basis and for this purpose Dr. Tweedale’s report dated January 11, 2008, is admitted as new and additional evidence.

Appellant’s Position:

Mr. Crystal, counsel for the Appellant, drew our attention to the standard of review to be applied when reviewing a penalty. He referred to Hall and Ottawa Police Service (December 5, 2007,O.C.C.P.S). In order to vary the penalty, the penalty must be

5 Ibid., pages 27 to 28.

6 Ibid., page 29.

unreasonable, fail to consider all relevant matters, demonstrate a manifest error in principle, or its imposition would amount to an injustice.

Dealing first with the question of the decision being unreasonable, Mr. Crystal drew our attention to the criminal trial and submitted that Justice March drew a distinction between the conviction phase and the penalty phase. During the conviction phase of the trial the Justice acknowledged that Constable Moraru was suffering from PTSD, however, he did not agree that Constable Moraru had met the test required to find him

Not Criminally Responsible. During the penalty phase of the trial, he acknowledged that there was “bizarre behaviour” on Constable Moraru’s part. In other words, Justice

March accepted that PTSD played a role in Constable Moraru’s actions, and he considered this as a mitigating factor.

Mr. Crystal contrasted this reasoning to that of the Hearing Officer who, in his view, failed to reconcile the impact of PTSD on Constable Moraru. The Hearing Officer acknowledged that the Appellant was suffering from PTSD. He rejected the argument that PTSD “controlled” the Appellant at the relevant time, but did not rule on what impact it did have.

With respect to the items that were stolen, Mr Crystal submitted that Constable Moraru never ate chocolate as it triggered severe migraine headaches; the theft of the cheese related to his lack of self-esteem and feeling like a mouse for accepting the earlier discipline; and that the theft of the aftershave related to his not feeling clean.

Mr. Crystal pointed out that Constable Moraru had an unblemished work record. There were many letters from citizens praising his police work. Mr. Crystal argued that the Hearing Officer did not consider the Appellant’s work history in the context of the offence, or fully assess the impact of PTSD on Constable Moraru’s state of mind at the time of the theft from Loblaws.

Mr. Crystal submitted that the work-related PTSD was a mitigating factor in the Appellant’s misconduct. He drew our attention to Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.), a similar-fact situation in which the Commission identified the elements to be considered. He submitted that it would amount to an injustice to terminate someone for a singular act of frailty or illness when that person was suffering from a disability developed during the course of his employment. The failure of the Hearing Officer to connect the Appellant’s illness and his Loblaws misconduct was a manifest error. The Hearing Officer also erred in principle by not linking the Appellant’s disability to the offence for which he was charged. Delano and Niagara Regional Police Service (1998), 3 O.P.R. 1293 (O.C.C.P.S.)

Mr. Crystal argues that the Appellant’s misconduct in issue here was the equivalent of a crisis. Constable Moraru successfully engaged in treatment. It is the un-contradicted evidence of a psychiatrist and a psychologist that Constable Moraru is not now suffering from PTSD and that continued employment as a police officer would be beneficial for

his rehabilitation. There is un-contradicted expert evidence that the Appellant’s

misconduct was an isolated incident, that the Appellant continues to and will continue to receive treatment, that he has made a substantial recovery and is fit to return to work. Mr. Crystal submits that the likelihood of the Appellant committing misconduct again is very low. The Hearing Officer, he says, erred in principle by rejecting the expert evidence submitted on behalf of the Appellant.

Mr. Crystal argues that the Hearing Officer erred by failing to give weight to the fact that Constable Moraru pleaded guilty at both his criminal trial and his disciplinary proceeding. The Appellant was diligent about completing his court-imposed community service. It is accepted that at the time of the Loblaws misconduct the Appellant was suffering from a recognized illness, PTSD. There is a limitation on how much remorse he could express given the fact that he was suffering from PTSD at the time of the events which gave rise to the charge of misconduct.

As to the issue of damage to the reputation of the Service, Mr. Crystal asserted that greater disrepute would be brought upon the Service if the public perceived that the Service dismisses someone who contracts a mental illness such as PTSD on the job. This would further stigmatize mental illness.

Respondent’s Position:

Mr. Houston, counsel for the Respondent, drew our attention to Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.) and Monaghan and Toronto Police Service (May 1, 2003, O.C.C.P.S) with reference to the standard of review on this appeal from the Hearing Officer’s decision.

He submitted that it was open to the Hearing Officer to determine that he did not need expert evidence to conclude that PTSD played no role in the Appellant’s misconduct. He pointed out that prior to the Loblaws events Constable Moraru had been suffering from symptoms of PTSD for six years and yet neither he nor his wife had sought medical treatment for the condition. Mr. Houston argued that it was strange that Constable Moraru did not discuss the previous discipline with his wife, even if he believed that he had been ordered not to discuss it with anyone.

Mr. Houston drew our attention to paragraphs 42 to 45 of Justice March’s oral judgment of April 13, 2006, where he outlines the evidentiary elements supporting his conclusion that Constable Moraru had not met the test of a Not Criminally Responsible finding; namely, there was no history of a dissociative state, he was functioning as a police officer, and his life seemed to be improving. Justice March indicated he did not believe Constable Moraru’s testimony that he did not have control over his actions during and after his shoplifting at Loblaws. He found that the Appellant’s testimony concerning the scratch on his face was problematic.

Mr. Houston submitted that Justice March was aware that a criminal conviction and a prohibition against carrying a firearm would likely mean that Constable Moraru’s career

as a police officer would be over. It was for this reason, he submitted, that a conditional discharge was granted.

Counsel for the Service contended that the Hearing Officer did not reject the expert medical evidence; rather, he did not accept that Constable Moraru’s actions were controlled by his medical condition. Mr. Houston drew our attention to pages 21 and 22 of the Hearing Officer’s reasons for decision and his finding that during the Loblaws incident Constable Moraru fully understood what he was doing.

Mr. Houston argued that no legal error was committed when the Hearing Officer omitted specific mention of the Appellant’s guilty plea as a mitigating factor. Carson and Pembroke Police Service (2001), 3 O.P.R. 1479) (O.C.C.P.S) and Allen and the Ottawa Police Service (June 7, 2006, O.C.C.P.S.)

The Hearing Officer specifically referred to concerns about the evidence of Dr. Kunjukrishnan that he would rely on self-reporting by the Appellant and his wife should PTSD symptoms re-emerge. Mr. Houston noted that Constable Moraru’s wife had observed his erratic behaviour over an extended period of time. She had no idea that the Loblaws incident might occur. In fact, her testimony indicated that the Appellant’s behaviour appeared to have improved immediately before the shoplifting. Mr. Houston asked us to consider how or if one could predict a re-occurrence. The Hearing Officer also had concerns with respect to the likelihood of repetition of the misconduct and the fact that the person closest to the Appellant, his wife, had not previously been able to discern the severity of his PTSD.

Mr. Houston argued that the Hearing Officer did not err when he failed to apply the progressive discipline approach, given the seriousness of the Appellant’s misconduct, particularly the uttering of a threat. Delano, supra. He submitted that the Hearing Officer analyzed the totality of evidence presented and properly concluded that the officer had annulled his usefulness to the Service. Guenette and Ottawa Regional Police Service (1998), 3 O.P.R. 1301 (O.C.C.P.S). There was no error in principle in reaching this conclusion.

Mr. Houston asserted that although Constable Moraru pled guilty, he had not really accepted responsibility for his actions. Rather, the Appellant continues to say “the illness made me do it”.

In summary, Mr. Houston submitted that the Hearing Officer’s decision did not reflect any error in principle, that it should be upheld and the appeal dismissed.

Decision:

Constable Moraru has been held accountable for his actions in the criminal courts. In that venue the onus was on him to meet the test of Not Criminally Responsible. He failed to meet the test. After pleading guilty to the criminal charges, Constable Moraru was granted a conditional discharge, placed on probation for 12 months, assessed 120

hours of community service, required to receive counselling, and prohibited from attending at the Loblaws store where the shoplifting occurred.

In the disciplinary context, Constable Moraru pled guilty to misconduct contrary to section 2(1)(a)(ix) of the Code. He was found guilty and ordered to resign within seven days or be summarily dismissed.

It is the penalty of dismissal that is the subject of this appeal.

The factors which the Hearing Officer is obliged to consider in deciding a penalty are clear. In Williams and OPP (1995), 2 O.P.R. 1047 (O.C.C.P.S.) the Commission identified three key elements: 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 if the officer remained on it.

Other relevant factors include the officer’s employment history, recognition by the officer of the seriousness of his or her misconduct, and any handicap or other relevant

personal circumstance. In addition, provocation, the need for deterrence, consistency of penalty, and any concern arising from management’s approach may be considered.

It is also clear that our role on this penalty appeal is different from that of the Hearing Officer when deciding an appropriate penalty at a disciplinary hearing. We do not second-guess the Hearing Officer, who heard the evidence and assessed the witnesses, and substitute our decision for his or hers. Our responsibility is to assess whether or not the Hearing Officer has properly, fairly and impartially taken into account all of the relevant factors and principles and has imposed a penalty within the range appropriate to the particular circumstances of the case at hand.

As is noted in Hall, supra. we may vary a penalty that is unreasonable, fails to consider all relevant matters, demonstrates a manifest error in principle, or would amount to an injustice.

How do these considerations apply in this case?

Constable Moraru’s actions on December 9, 2004 were clearly unacceptable and violated the laws he had sworn to uphold. While in a large grocery store, Constable Moraru shoplifted chocolate, cheese and shaving lotion. He hid the stolen items in a briefcase, and did not pay for them when he left the store. The Appellant paused on his way out of the store and looked around. When Constable Moraru was pursued and caught by a loss prevention officer, he identified himself as a police officer, he struck out at the loss prevention officer, he stated that he had a weapon, he feigned the weapon

by putting his hand in his pocket, and then escaped in his vehicle. The Hearing Officer wrote: “It is simply unacceptable to society at large, and incompatible with the rule of law itself, for police to break the very laws they are sworn to uphold”.7 We agree with this observation.

7 Ibid., page 27.

Having said that, the issue before us is whether, given the circumstances of this case, the Hearing Officer fairly and impartially took into account all relevant factors and principles and imposed an appropriate penalty.

In his 29-page decision, the Hearing Officer carefully reviewed the evidence, witness testimony and the sequence of events. He referred generally to the appropriate elements to be considered in deciding on a penalty. He properly identified that in this case the seriousness of the offence is a primary consideration. His analysis of the seriousness of the Appellant’s misconduct, however, is interwoven with a discussion as to whether he was “controlled” by PTSD, or whether he was aware of his actions. This issue occupies approximately six pages of the Hearing Officer’s decision.

The Hearing Officer accepted, as did Justice March, that Constable Moraru was suffering from PTSD. The Hearing Officer then concluded that PTSD did not “control” the Appellant’s actions on the day of the incident, stating:

Constable Moraru would have this Tribunal believe that every time he committed a criminal act he was not responsible for his actions, that some other force was driving him. However, in the same space of time he was making rational decisions like everyone else; that the other items he selected and paid for, frozen pizza and canned goods, would lead one to believe he entered the store with a clear agenda, part of which was to commit the act of theft, which escalated into other serious criminal offences when apprehended by security personnel.8

Further, he stated that:

I do not disagree that Moraru had difficulty with stressful situations and was in some state of depression, however, given the evidence before this Tribunal I find it clear that he was fully aware of his actions and that he entered the Loblaws store with the intent to commit the criminal act of theft.9

In the conviction phase of a criminal trial, the defence of not criminally responsible due to PTSD is an all-or-nothing issue. It must be proved beyond a reasonable doubt that PTSD either controlled the individual’s actions, or did not. As Justice March stated, the onus is on the defendant to meet the test.

During the sentencing phase of the criminal proceeding Justice March weighed the circumstances of the actual shoplifting, the officer’s actions afterwards, the apparent lack of motive, his comments to the police officers when he was arrested and the description of his behaviour as calm and somewhat confused.10 Constable Moraru’s “bizarre behaviour’ was a mitigating factor for Justice March. He carefully weighed the

8 Ibid., page 26.

9 Ibid., page 27.

10 See Reasons for Judgment of Mr. Justice S.A.J. March, April 13, 2006 at pages 19 to 20.

interests of the officer and the interests and safety of the public. In his opinion, it was not contrary to the public interest to impose a reduced penalty in the form of a conditional discharge. In consideration of the unusual nature of the case, he did not impose a weapons prohibition.

A disciplinary proceeding is not a trial; it is a hearing into an employment matter, to determine whether misconduct occurred, and, if so, to assess the appropriate penalty. The thresholds for conviction are different.

However, during the penalty phase of a disciplinary hearing, not unlike the sentencing phase of a criminal trial, it is incumbent upon the trier-of-fact to consider whether PTSD, a medically recognized illness, influenced the actions of the officer and, if so, to what extent. Having concluded that Constable Moraru was suffering from PTSD, the real issue before the Hearing Officer was what weight the effect of PTSD should be given as a mitigating factor in assessing penalty.

We agree with Mr. Crystal that the Hearing Officer failed to consider whether PTSD was a mitigating factor in this isolated incident. As a result, the Hearing Officer failed to consider properly the ability of the Appellant to reform or be rehabilitated.

In his decision, the Hearing Officer stated: “ … I do not accept his evidence that on the day of the incident he does not recall what happened to him, that a switching occurred, that he had no control over his arms or body, that his illness was in control of his actions, voices good and bad.” The Hearing Officer went on to say that “It is clear to

this trier-of-fact that Constable Moraru has a very clear recollection of the incident in the

Loblaws store in December of 2004.”11

Certainly what the Hearing Officer saw on the security videos was visual evidence of what transpired during the incident. However, the videotapes had to be assessed in the context of considerable oral testimony about Constable Moraru’s mental state at the time.

There was credible un-contradicted evidence from Doctors Kunjukrishnan, Baxter and Tweedale that Constable Moraru experienced a series of disturbing events over a six- year period, the cumulative impact of which contributed to severe PTSD. Clinical testing by Dr. Baxter confirmed the diagnosis of PTSD. At the commencement of his therapy the Appellant was “upset”, “confused”, “very distressed”, “didn’t really understand why the offence occurred”.12 Dr. Tweedale described the subtle symptoms of his psychological injury: nightmares, social withdrawal, chronic hyper-vigilance and alertness, a loss of enthusiasm, changes in sleep patterns, and bizarre eating habits. The fact that the Appellant could appear to function normally in a social situation before engaging in the incident at Loblaws on December 9, 2004, was not inconsistent with PTSD.

11 Reasons for Decision, February 19, 2007 at page 25.

12 Transcript of Disciplinary Proceedings, December 15, 2006 at page 26.

There was also un-contradicted evidence that the Appellant had an exemplary service record, apart from one prior disciplinary incident which was resolved on an informal basis.

It is our view that the Hearing Officer cannot first accept the PTSD diagnosis, and then reject the adverse effects of PTSD on the Appellant’s behaviour. When he did this the Hearing Officer committed an error in principle.

With respect to his continued usefulness to the Service, Constable Moraru was assessed by his treatment team with respect to risk indicators for recidivism such as criminal history, substance abuse, attitude, social and emotional support. It was found that as a result of his therapy Constable Moraru has positive psychological resources for processing stress, better emotional insight and strong family support.

The most recent medical reports indicate that the initial, major symptoms have resolved themselves and that the Appellant has recovered. Through the counselling process, his wife has become attuned to indicators of psychological health and has a strong interest in ensuring that he remains healthy. The Appellant has agreed to a treatment plan that includes monthly counselling visits, with reporting to the Service, based on his

therapist’s concerns about the seriousness of any recurring symptoms. By all accounts, the Appellant is an excellent police officer. His work record has been good. In not properly considering these mitigating factors, and in failing to give effect to the un- contradicted expert evidence concerning the Appellant’s rehabilitation, the Hearing Officer failed to consider one of the three key elements expressed in Williams (supra), and committed a further error in principle.

At page 28 of his decision, the Hearing Officer outlined the importance of an effective police disciplinary system which provides assurance to the public that the basic standards of professional and ethical conduct are being met by the members of a police service, and that those who have sworn to uphold the law cannot with impunity betray the public’s trust by breaking the law. The Hearing Officer writes that these standards “were paramount in my considerations”. While we agree that the maintenance of public trust is important, in our view, by failing to consider all relevant matters, and specifically the second of the three key elements set forth in Williams (supra), the Hearing Officer’s decision discloses a manifest error in principle.

In addition, the Hearing Officer failed to consider Constable Moraru’s guilty plea as a mitigating factor. The Hearing Officer’s only comment about mitigating factors occurs on pages 27 and 28 of his decision: “Looking for mitigating circumstances was both difficult and challenging ...”. This Commission has held that a guilty plea should be recognized as a mitigating factor. Carson and Pembroke Police Service supra.

Given the errors we have identified, the Hearing Officer’s penalty cannot stand.

In determining the appropriate penalty in this case we have considered the following:

1. Constable Moraru’s misconduct was serious.

2. All parties acknowledge that Constable Moraru was suffering from a mental illness (PTSD) arising from the circumstances of his employment at the time of the incident.

3. Constable Moraru’s employment record discloses that he has been a dedicated police officer who has carried out his duties in an exemplary manner.

4. Constable Moraru’s conduct at Loblaws constituted a singularly uncharacteristic act of frailty undertaken while he was suffering from an illness developed during the course of his employment.

5. The un-contradicted medical evidence establishes that Constable Moraru is now a healthy person dealing with stress in the normal way after having been treated and counselled.

6. Doctor Tweedale, in her Supplementary Report of January 11, 2008 states:

… I am led to conclude that the shoplifting incident was an isolated and ‘functional’ crisis that ultimately allowed for Mr. Moraru`s disclosure of the traumatic events and subsequent feelings of 7 years ago, thus releasing the pressure of unresolved conflict and suppressed emotions … believe that the risk for any kind of recurrence of this behaviour (shoplifting) , or any other kind of displaced acting out is extremely low, likely lower than the average individual given Mr. Moraru’s current level of psychological insight into the nature of trauma … This type of case where an otherwise highly functional, pro social individual engages in an atypical and irrational act of shoplifting has been seen before in the clinical field, and consistently manifests as an isolated and functional crisis in the severe stress of an individual’s life. Once treated the individual not only is able to resolve the original conflict, but recover psychological health to a degree that often surpasses pre-morbid levels …

7. Based upon the un-contradicted medical evidence we do not believe that Constable Moraru’s usefulness to the Ottawa Police Service has been annulled. We believe that there is an opportunity for his continued rehabilitation through his continued service as a police officer.

8. In the unusual circumstances of this case the issue of deterrence is not a significant factor.

9. The guilty plea of Constable Moraru is a mitigating factor.

10. The reputation of the Service requires that the Service be mindful of its treatment of individuals with mental illness. We agree that the dismissal of an individual who contracted a mental illness during the course of his employment must be undertaken with extreme care, and only in circumstances which clearly warrant such action.

Therefore, pursuant to section 70(6) of the Act, the original penalty of dismissal in the absence of resignation within seven days is varied as follows:

1. Constable Moraru shall be demoted to third-class constable for a period of one year. Thereafter, he will be eligible for promotion to second-class constable. One year thereafter, he will be eligible for promotion to first-class constable.

2. Appellant’s Counsel proposed a monitoring system to monitor

Constable Moraru’s mental health. We concur and order that:

a. Constable Moraru shall continue to attend monthly therapy sessions with Dr. Tweedale or such other qualified clinical psychologist as Constable Moraru shall select;

b. Every three months, for a period of two years, Constable Moraru shall ensure that the Service receives from Dr. Tweedale or another qualified clinical psychologist, a written report relating to his ability to perform or continue to perform safely his professional duties as a police officer; and,

c. Refusal to participate in any required therapy sessions or failure to provide the said reports in accordance with the aforesaid conditions, without reasonable excuse, will entitle the Service to prosecute Constable Moraru under the Act and seek his dismissal.