OCCPS #08-03

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Vaughan-Evans v. Toronto Police Service, 2008 ONCPC 3

REASONS FOR DECISION

CONSTABLE JAMES VAUGHAN-EVANS Appellant

TORONTO POLICE SERVICE Respondent

Presiding Members: Murray W. Chitra, Chair Hyacinthe Miller, Member Garth Goodhew, Member

Appearances: Andrew McKay, Counsel for the Appellant Darragh Meagher, Counsel for the Respondent

Hearing Date: April 2, 2008

This is an appeal from the penalty of resignation within seven days, or dismissal, imposed by Superintendent R. Strathdee, (the "Hearing Officer") against Constable James Vaughan-Evans on May 16, 2007.

Constable Vaughan-Evans pled guilty to one count of discreditable conduct contrary to section 2(1)(a)(ix) of the Code of Conduct of Ontario Regulation 123/98 (the "Code") on November 3, 2006.

Background:

The facts giving rise to this appeal are complex.

James Vaughan-Evans began his employment as a fourth-class constable with the Toronto Police Service (the “Service”) in 1987. He was nineteen years old. His subsequent policing career and personal life have been troubled.

Initially, Constable Vaughan-Evans worked at 14 Division as a uniformed constable. He also trained in 14 Division's Fraud Unit and their Youth Bureau. In June of 1992 he attained a permanent posting in the Youth Bureau. In this capacity he was responsible for investigating young offenders and cases of child abuse.

In December of 1993, Constable Vaughan-Evans voluntarily attended the autopsy of a murdered 18 month-old child. He described the child's injuries as extensive and horrific.

In April of 1994 Constable Vaughan-Evans became involved in the investigation of the murder of a six month-old baby. He was assigned to attend the Hospital for Sick Children in order to interview the surviving three siblings and ascertain the circumstances of the death of the young victim.

Constable Vaughan-Evans was strongly affected by his involvement in these murder investigations. He began to experience negative feelings and emotions, nightmares, cold sweats and could not get the two incidents out of his mind. He lost his appetite, he isolated himself from others and his marriage deteriorated.

Constable Vaughan-Evans has a history of smoking marijuana. He experimented with marijuana at age 12 and became a regular user until age 18.

Following his involvement with the two murder investigations he became a heavy user of marijuana. He claims that marijuana helped him to numb the negative feelings he was experiencing.

In early 1994 Constable Vaughan-Evans sought the assistance of psychologist Dr. Hank Frazer in order to deal with marital problems. Dr. Frazer subsequently diagnosed Constable Vaughan-Evans as having Post Traumatic Stress Disorder and Substance Abuse Disorder.

Constable Vaughan-Evans enrolled in various drug and alcohol treatment programs in Oshawa, Barrie and at Kingston. In a report from the Kingston program it was noted that he was smoking 10 to12 joints of marijuana a day, was frequently intoxicated, was experiencing hallucinations and exhibiting an inability to cut down or quit.

The expense of supporting his habit became so great that he began to steal the pay cheques of his co-workers. Between December 21, 1994 and his eventual arrest on September 6, 1995 he stole eight cheques totaling approximately $5,800.

On March 6, 1996 Constable Vaughan-Evans pled guilty before Judge P. Newton to Fraud Under $5000, and received a conditional discharge with probation for twelve months.

As a result of this conviction, Constable Vaughan-Evans was charged with and pled guilty to the disciplinary offence of discreditable conduct. On December 19, 1996 Hearing Officer Kelly ordered him to resign within seven days or be dismissed.

That penalty was appealed and on June 13, 1997 the Toronto Police Services Board ordered that Constable Vaughan-Evans be reinstated with certain conditions. He was reduced to the rank of third-class constable for one year, was to submit to random drug testing for three years, and continue his psychological counseling and attendance at Narcotics Anonymous.

Upon reinstatement, Constable Vaughan-Evans was transferred to 12 Division. In August of 1999 he became aware that a fellow officer with whom he was working had referred to him as "Cheque Boy". He came to believe that he would never escape his past.

He stopped attending Alcoholics and Narcotics Anonymous. He experienced financial difficulties. His marital situation deteriorated again. He became depressed. In October of 2000 he attempted to take his life. He was hospitalized for approximately one month during which he underwent two sessions of Electro Convulsive Therapy.

Constable Vaughan-Evans returned to work on modified duties. He was assigned to the Community Policing Support Unit at Police Headquarters where he worked with Crime Stoppers. In time, his Staff Sergeant suggested that he might be better employed working with domestic violence, child and elder abuse and crime prevention. As a result, in the summer of 2003 Constable Vaughan-Evans assumed the role of Child Abuse Coordinator at 12 Division.

Shortly after beginning this job, his Staff Sergeant received a call from a detective working with 14 Division Youth Bureau. The detective was one of the officers whose pay cheque had been stolen by Constable Vaughan-Evans. He expressed reservations about Vaughan-Evans being assigned to the type of work that had caused him in the past to experience Post Traumatic Stress Disorder.

Constable Vaughan-Evans was removed from the role of Child Abuse Coordinator and transferred to the position of Civilian Police College Coordinator. He was upset by this move and was unsuccessful in his attempts to have it reversed.

In late 2002, just prior to these events, Constable Vaughan-Evans began playing guitar in two bars - one in Bowmanville and one in Newcastle. In January of 2003, he started using marijuana again. This quickly escalated. Constable Vaughan-Evans acknowledges purchasing marijuana from dealers in the two bars on at least 50 occasions spending approximately $5,000.

This brings us to the events that are the subject of this appeal.

On the morning of December 19, 2003, Constable Vaughan-Evans was working at Police Headquarters. He went to the staff washroom. When he was returning to his desk he passed Acting Sergeant William Kemp who smelled a strong odor of marijuana. Sergeant Kemp reported this to Staff Sergeant Badowski.

The washroom was searched. It also had a strong odor of marijuana. The remnant of a marijuana cigarette, or “roach”, was discovered on the floor of one of the cubicles. Constable Vaughan-Evans was confronted. He denied smoking marijuana and suggested that the smell emanating from him was cologne.

Staff Sergeant Badowski urged the Constable to tell the truth and suggested that he needed medical help. Constable Vaughan-Evans agreed. He went on to admit that he had smoked marijuana earlier that morning at home before coming to work, and stated that the roach must have fallen out of his pocket in the washroom. He was taken to the office of the Unit Commander who suspended him with pay. While suspended Constable Vaughan-Evans was required to report to work daily and sign in.

As part of the investigation into this incident, the Service attempted to obtain a sample of Constable Vaughan-Evans' DNA to link him directly to the roach. He was put under surveillance. On June 2, 2004, on his way to sign in, Constable Vaughan-Evans parked at the Eglinton subway station. He was observed rolling a marijuana cigarette. He was arrested and criminally charged.

On September 20, 2005 Constable Vaughan-Evans appeared before Justice W. Bassel and pled guilty to unlawfully possessing a controlled substance, marijuana, in an amount not exceeding 30 grams, contrary to section 4(5) of the Controlled Drugs and Substances Act.

On December 8, 2005 Constable Vaughan-Evans was sentenced to a conditional discharge with probation for two years. This was subject to a number of conditions including attending substance abuse and psychological counseling and the completion of 120 hours of community service.

Subsequently, further disciplinary proceedings against Constable Vaughan-Evans commenced. He was charged with three offences. Two were subsequently withdrawn.

The remaining count alleged discreditable conduct, in that he was guilty of an indictable criminal offence or a criminal offence punishable upon summary conviction, contrary to section 2(1)(a)(ix) of the Code.

The Statement of Particulars read:

Being a member of the Toronto Police Service, attached to the Community Policing Support Unit, you appeared in the Ontario Court of Justice, Toronto Region, before the Honourable Justice W. Bassel, on Tuesday, September 20, 2005. You were charged that on or about Wednesday, June 2, 2004, in the City of Toronto, Province of Ontario, you did unlawfully possess a controlled substance, Cannabis (marihuana), in an amount not exceeding 30 grams, contrary to section 4(5) of the Controlled Drugs and Substances Act.

You entered a plea of guilty. You were found guilty by the Honourable Justice W. Bassel.

The Disciplinary Hearing:

Constable James Vaughan-Evans pled guilty. The matter was adjourned to January 12, 2007. Submissions began on that date and continued on February 14, March 6 and 15, 2007.

An Agreed Statement of Facts was entered into evidence. The Prosecutor, Inspector Holt, did not call any witnesses. The Defence, Mr. McKay, called five witnesses, including Constable Vaughan-Evans. In addition, fourteen exhibits were received.

Mr. McKay called as his first witness, psychologist Dr. Hank Frazer. He testified about his treatment of Constable Vaughan-Evans. Dr. Frazer stated that after their initial meetings he recognized that Vaughan-Evans was experiencing Anxiety and Depression.

In December of 1994 Dr. Frazer diagnosed Constable Vaughan-Evans as having Post Traumatic Stress Disorder. He testified that the Constable had a genetic predisposition to Major Depressive Disorders. Dr. Frazer described the numerous attempts made by Constable Vaughan-Evans to deal with his issues by entering various programs.

Dr. Frazer also reviewed the situations and factors which contributed to and exacerbated Constable Vaughan-Evans’ illnesses, relapses, and heavy use of marijuana - his conviction for stealing co-workers’ pay cheques, the reminders at work of his thefts, his attempted suicide, his removal from the position of Child Abuse Coordinator and his increased involvement with the drug culture when he began playing guitar in the two bars.

Dr. Frazer further testified that Constable Vaughan-Evans has had a remarkable rehabilitation since his arrest in 2004. He described the Appellant’s extensive involvement with Alcoholics and Narcotics Anonymous and noted his commitment to helping others involved with substance abuse.

Dr. Frazer stated that he believed that Constable Vaughan-Evans has not used marijuana since his arrest on June 2, 2004 and now has the tools and supports to resist a relapse. He pointed to Vaughan-Evans’ successful handling of a series of crises involving family and friends as proof of his new strengths and abilities. Dr. Frazer also stated that he personally did not have any reservations about Constable Vaughan-Evans returning to work as a police officer.

Under cross-examination Dr. Frazer admitted that it was possible that Constable Vaughan-Evans would use marijuana again in the future, and that while Post Traumatic Stress Disorder and Depression can explain the use of illegal drugs it does not excuse it. Dr. Frazer also agreed that his opinion that Vaughan-Evans had not used illegal drugs since his arrest in 2004 could not be confirmed independently.

Mr. McKay called two witnesses who were involved with Constable Vaughan-Evans in Alcoholics Anonymous -"Mr. MAG" and "Mr. BK". Both testified that the Constable was making real progress, accepted full responsibility for his actions, understood the importance of being held accountable, and was following a sober life style. They testified that they respected his honesty and integrity. They also expressed the view that Constable Vaughan-Evans could return successfully to the position of police officer.

Under cross-examination Mr. MAG and Mr. BK agreed that deceit and deception are common behaviours with substance abusers and they could not guarantee that Constable Vaughan-Evans would not in future break the law or return to substance abuse. They also agreed that police officers must obey the law and be held to a very high standard.

Mr. B. McCoy testified. He was Constable Vaughan-Evans’ probation officer for the period of supervision imposed by the Court in December of 2005. He testified that Constable Vaughan-Evans had reported as required, continued his mandated counseling with Dr. Frazer, remained free of illegal drugs and fulfilled his community service requirements early.

Mr. McCoy noted that the sentencing judge had agreed to terminate Constable Vaughan- Evans’ probation before the normal expiry date. He also confirmed that Constable Vaughan-Evans had been an exemplary probationer. On cross-examination Mr. McCoy also agreed that a police officer must obey the law and is held to a higher standard of conduct than the general public. He also stated that he could not guarantee that Constable Vaughan-Evans would not break the law in the future.

The final witness was Constable Vaughan-Evans. He outlined in great detail the major issues and events in his career with the Service. He discussed his use of marijuana and alcohol, the interconnection between work experiences, substance abuse, illegal activities, suspensions and convictions, and the illnesses of Post Traumatic Stress Disorder and Depression. He also referred to his many attempts to deal with his problems and his repeated relapses.

Constable Vaughan-Evans noted the progress he believes he has made since his arrest on June 2, 2004. He made a point of emphasizing that he believes that he received very little help from the Service throughout his personal and professional struggles. Constable Vaughan-Evans accepted full responsibility for his actions and apologized for them. He expressed his strong desire to return to the Service as a productive, responsible officer, and stated his belief that he now has the tools to succeed in this capacity.

The focus of Constable Vaughan-Evans’ cross-examination centered on the illegal nature of his conduct - his purchase and consumption of illegal drugs and his theft of his co- workers’ pay cheques, with the related criminal convictions and suspensions. Constable Vaughan-Evans also acknowledged receiving some help from the Service’s Employee Assistance Program.

Inspector Holt concluded his cross-examination by outlining with Constable Vaughan- Evans the legal responsibilities of being a police officer and the expectations placed on officers by the public.

The Hearing Officer then briefly questioned Constable Vaughan-Evans touching on examples of the Appellant’s deception and deceit. The Hearing Officer also questioned Constable Vaughan-Evans regarding his illegal activities - purchasing drugs from dealers, consumption of illegal drugs and the theft of his co-workers’ pay cheques.

On March 14, 2007 Mr. McKay and Inspector Holt made submissions as to penalty.

Mr. McKay argued that Constable Vaughan-Evans should be reinstated with the condition that he be subject to random drug testing for the remainder of his career with the Service. He also suggested that an appropriate penalty would be the loss of a number of days pay or demotion to second-class constable.

Inspector Holt submitted that Constable Vaughan-Evans be ordered to resign within seven days or face dismissal.

On May 16, 2007 the Hearing Officer released his decision. It is more than ninety pages in length and summarizes the evidence in great detail. The Hearing Officer found that Constable Vaughan-Evans exhibited a pattern of longstanding negative behaviours characterized by heavy illegal drug use and related criminal activity which resulted in convictions and suspensions. He also concluded that Constable Vaughan-Evans had demonstrated that he was unable to help himself.

The Hearing Officer noted that even after suspensions the Constable was not able to refrain from going back to his heavy marijuana use. The Hearing Officer also found that the Appellant had lied to his physicians, and other caregivers who tried to assist him. He also concluded that Vaughan-Evans had deceived his fellow officers, his supervisors and his wife, and that he had damaged the reputation of the Service.

The Hearing Officer concluded that Constable Vaughan-Evans had exhausted his usefulness as a police officer and ordered him to resign within seven days or be dismissed.

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

Appellant's Position:

Mr. McKay, on behalf of the Appellant, argued that the Hearing Officer erred by grossly misinterpreting the evidence and exaggerated facts to support his discriminatory conclusion that Constable Vaughan-Evans' behaviour was inherently criminal in nature and, as a result, failed to properly address mitigating factors.

Mr. McKay argued that there were four major oversights reflected in the Hearing Officer's decision. Specifically, the Hearing Officer failed to:

(1) recognize that illegal drugs are synonymous to alcohol and prescription drugs when describing the illness/disability of substance abuse;

(2) recognize that the duty to accommodate substance abuse extends further than providing administrative support;

(3) give proper weight to Vaughan-Evans' employment history and the benefit of his continued involvement in the community; and

(4) acknowledge evidence of successful rehabilitation and continued remission.

In discussing the standard of review to be applied to penalty cases, Mr. McKay argued that the Commission's role is to ensure that the relevant factors in assessing penalty have been considered and appropriately weighed in a fair and impartial manner.

He also stated that the Commission may vary a penalty that is unreasonable, unfair, would represent an injustice, or where there is a manifest error in principle or the proper factors are ignored. He identified the factors to be considered when determining an appropriate penalty.

On these points, Mr. McKay drew our attention to Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047(O.C.C.P.S.), Toronto (City) v. Blowes-Aybar (April 22, 2004, Ont. Div. Ct.), Ryan v. Law Society (New Brunswick) 2003 SCC 20, [2003] 1 S.C.R. 247 (S.C.C.), Blackburn and Niagara Regional Police Service (September 17, 2003, O.C.C.P.S.), Galassi v. Hamilton (City) Police Service Board [2005] O.J. No. 2301 (Ont. Div. Ct.), Kelly and Toronto Police Service (May 18, 2005, O.C.C.P.S.) and Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S).

Mr. McKay argued that the Hearing Officer did not give adequate consideration to the Service's duty to accommodate Constable Vaughan-Evans' disability (i.e. drug dependence). He pointed out that the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended, and the Police Services Act R.S.O. 1990, c. P.15, as amended, (the “Act”) dictate that an employer must accommodate an employee's disability to the point of undue hardship.

In support of these arguments Mr. McKay noted Re Trumbley et al. and Fleming et al. Metropolitan Toronto Police (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570 (Ont. C.A.) and Entrop v. Imperial Oil Limited (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (Ont. C.A.).

It was Mr. McKay’s contention that the only meaningful assistance that Constable Vaughan-Evans received from the Service was his referral to the treatment program at Kingston. He asserted that the Service did not attempt to accommodate the Appellant to the required point of undue hardship. Mr. McKay stated that the Hearing Officer failed to consider and apply the applicable human rights legislation in his penalty decision.

In support of this argument Mr. McKay cited Hamilton Police Services Board v. Hamilton Police Association (June 8, 2005, Ont. Div. Ct.), Renaud v. Central Okanagan School District No. 23 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (S.C.C.), Mitchell Island Forest Products Ltd. v. I.W.A., Local 1-217 (1996), 1996 CanLII 20301 (BC LA), 60 L.A.C. (4th) 73 (B.C.A.B.), Uniroyal Goodrich Canada Inc. and U.S.W.A., Local 677 (1999), 1999 CanLII 35843 (ON LA), 79 L.A.C. (4th) 129 (Knopf), Toronto (City) Police Service v. Kelly 2006 CanLII 14403 (ON SCDC), [2006] O.J. No. 1758 (Ont. Div. Ct.), Geske and Hamilton Police Service (July 3, 2003, O.C.C.P.S.) and Canadian Pacific Railway (Mechanical Services) and C.A.W., Local 101 (1996), 1996 CanLII 20346 (CA LA), 59 L.A.C. 324 (Hope).

Mr. McKay also argued that the Hearing Officer failed to properly apply other sentencing principles. Specifically, he stated that the Hearing Officer discounted the Appellant’s ability to reform and rehabilitate and did not take into account Dr. Frazer's statement that Constable Vaughan-Evans’ recovery "has been nothing short of remarkable." Mr. McKay also argued that Constable Vaughan-Evans’ misconduct was not such that it would unduly damage the reputation of the police force if he were to remain an employee.

Mr. MacKay submitted that the Hearing Officer did not give sufficient weight to other mitigating factors. Mr. McKay stated the Hearing Officer did not take into account that the Appellant’s record was exemplary beyond the two incidents that had led to convictions and suspensions. He also noted that his client had consistently accepted responsibility for his conduct and had recognized the seriousness of it. He also submitted that addiction is a handicap and as such can be a significant mitigating factor in sentencing. He argued that the Hearing Officer did not properly take this into account.

Mr. McKay supported his arguments by making reference to Dempsey and Waterloo Regional Police Service (1991), 2 O.P.R. 909 (O.C.C.P.S.), Kelly and Toronto Police Service supra, Favretto and Ontario Provincial Police (2002), 3 O.P.R. 1540 (O.C.C.P.S.), Andrews and Midland Police Service (May 1, 2003, O.C.C.P.S.) and Girard v. Delaney (1995), 2 P.L.R. 337 (Ont. Bd. Inq.).

Mr. McKay submitted that any disciplinary penalty imposed must be consistent with the facts of the case and similar previous cases. Mr. McKay stated that dismissal was harsh and excessive and inconsistent with other disciplinary decisions.

In support of this argument he drew our attention to Schofield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.), McCloy and Toronto Police Service (October 3, 2006, Hearing Officer Tweedy), Marsden and Metropolitan Toronto Police Service (1994), 2 O.P.R. 974 (O.C.C.P.S.), Buddo and Toronto Police Service (October 5, 2005, Hearing Officer Tweedy), Spizziri and Ontario Provincial Police (1988), 2 O.P.R. 799 (O.P.C.), Carmichael and Ontario Provincial Police (1998), 3 O.P.R. 1232 (O.C.C.P.S.), Guenette and Ottawa-Carleton Regional Police Service (1998), 3 O.P.R. 1301 (O.C.C.P.S.) and Mikkelsen and Toronto Police Service (November 9, 2005, Hearing Officer Tweedy).

Mr. McKay also cited a number of cases where the dismissal was upheld but suggested that the facts in each situation were distinguishable from his client's circumstances. These included: Eschweiler and Ontario Provincial Police (1998), 3 O.P.R. 1276 (O.C.C.P.S.), Tkacz and City of Ottawa Police Force (1987), 2 O.P.R. 745 (O.P.C.), Walker and Peel Regional Police Service (2000), 3 O.P.R. 1425 (O.C.C.P.S.), Gamble and Ontario Provincial Police (1986), 2 O.P.R. 711 (O.P.C.), Williams and Ontario Provincial Police supra, Trumbley and Pugh and Metropolitan Toronto Police Force (1991), 2 O.P.R. 894 (O.P.C.), King and Metropolitan Toronto Police Force (April 19, 1993, Hearing Officer Wilson), Karklins and Toronto Police Service (September 25, 2007, O.C.C.P.S.), Seamons and Durham Regional Police Service (September 28, 2006, O.C.C.P.S.) and Hassan and Peel Regional Police Service (September 8, 2006, O.C.C.P.S.).

For the above reasons Mr. McKay requested that the penalty be varied to reinstatement with the condition that his client be subject to random drug testing for the remainder of his career and the forfeiture of a number of days off or, in the alternative, demotion to second-class constable.

Respondent's Position:

Mr. Meagher, on behalf of the Service, argued that Constable Vaughan-Evans received a full, fair and impartial hearing and that the penalty should stand.

Mr. Meagher began by reviewing the Agreed Statement of Facts and reiterated that there was uncontradicted evidence that Constable Vaughan-Evans had smoked marijuana before arriving at Police Headquarters on December 19, 2003 and lied to his superiors when they questioned him about the odour of marijuana.

He also pointed out that there is no dispute that on June 2, 2004, while under suspension, Constable Vaughan-Evans was in possession of marijuana. Mr. Meagher reminded us that on two occasions Constable Vaughan-Evans pled guilty to criminal charges and to discreditable conduct charges related to his use of marijuana.

Mr. Meagher submitted that the main issue before the Hearing Officer was the manner in which Constable Vaughan-Evans' history of Depression, Post Traumatic Stress Disorder and Substance Abuse should factor into the sentence imposed. Mr. Meagher stated that after considering all relevant matters the Hearing Officer properly concluded that the Appellant had exhausted his usefulness as a police officer. He noted that this conclusion was reached essentially because the Appellant chose not to stop his marijuana use and only sought assistance for his heavy drug use habit after he was arrested and/or suspended.

Mr. Meagher also argued that the standard of review to be applied by the Commission in determining whether to overturn the penalty involves an assessment of whether the penalty is unreasonable, would amount to injustice or unfairness or if all relevant factors have not been fairly or impartially considered. Williams and Ontario Provincial Police supra, Favretto and Ontario Provincial Police supra, Galassi and Hamilton (City) Police Services Board supra, Deviney and Toronto Police Service (1999), 3 O.P.R. 1315 (O.C.C.P.S.) and Toronto (City) Police Service v. Kelly supra.

Mr. Meagher submitted that the decision of a Hearing Officer can be overturned on the basis that there has been an error in principle, or that the penalty is manifestly unfit. Allen and Hamilton-Wentworth Police Service (1995), 3 O.P.R. 1001 (O.C.C.P.S.), More and York Regional Police Service (2001), 3 O.P.R. 1450 (O.C.C.P.S.), Valois and Toronto Police Service (November 24, 2003, O.C.C.P.S.), Lang and Toronto Police Service (February 8, 2006, O.C.C.P.S.), Bright v. Konkle (1997), 2 P.L.R. 481 (Ont. Bd. Inq.) and Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.)

However, he asserted that the approach taken by the Commission to a decision of a Hearing Officer should be deferential. Toronto (City) Police Service v. Blowes-Aybar 2004 CanLII 34451 (ON SCDC), [2004] O.J. 1655 (Ont. Div. Ct.), Dr. Q. v. College of Physicians and Surgeons of British Columbia (2003), 2003 SCC 19, 223 D.L.R. (4th) 599 (S.C.C.), Ressel v. College of Chiropractors of Ontario [2003] O.J. No. 3032 (Ont. Div. Ct.) and Re: Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2d) 1 (Ont. C.A.)

Mr. Meagher argued that the penalty imposed by the Hearing Officer did not disclose an error in principle, nor was it manifestly unfair.

He agreed with the Appellant's description of the test to be applied in determining penalty. Reilly and Brockville Police Service supra and Burdett and Guelph Police Service (1999), 3 O.P.R. 1336 (O.C.C.P.S.)

Regarding the nature and seriousness of the misconduct at issue, the Respondent argued that Constable Vaughan-Evans was a veteran of marijuana use even before he became a police officer, and that he smoked marijuana heavily during 1994 and 1995 which led to his theft of co-workers' pay cheques. The Respondent also noted that Vaughan-Evans arrived at work on December 19, 2003 after smoking marijuana and, subsequently, while suspended with pay, was arrested for being in possession of marijuana. Further, Mr. Meagher noted that the Constable admitted that he had purchased marijuana from dealers at least 50 times.

Mr. Meagher noted that in his sentencing decision the Hearing Officer acknowledged the Appellant’s guilty plea; however, he argued that the circumstances surrounding a guilty plea may affect the weight attached to such an action. Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (O.C.C.P.S.), More and York Regional Police Service supra, Walker and Peel Regional Police Service supra, R. v. Santos [1993] O.J. No. 2539 (Ont. C.A.), R. v. Pitkeathly (1994), 1994 CanLII 222 (ON CA), 69 O.A.C. 352 (Ont. C.A.) and Funnell v. Calder (1995), 2 P.L.R. 436 (Ont. Bd. Inq.)

Mr. Meagher pointed out that the Hearing Officer found that the Appellant had had many opportunities to reform or rehabilitate himself, and that he had failed to do so. The Hearing Officer determined that the evidence showed that Constable Vaughan-Evans sought assistance only after he was arrested or suspended. Further, he argued that the Hearing Officer reasonably found that if the Appellant was reinstated and the facts leading to his dismissal became public knowledge the reputation of the Service would be severely damaged.

Given the nature of the Appellant’s misconduct, his inability to reform, and the potential damage to the reputation of the Service, the Respondent argued that the penalty of dismissal was reasonable and just and would send a clear message to all officers.

Mr. Meagher also argued that the penalty imposed by the Hearing Officer for the Appellant’s discreditable conduct falls within the range of penalties available to him. In support of that submission he cited the following: King and Toronto Police Service (April 19, 1993, Hearing Officer Wilson), Morden and Peel Regional Police Service (1997), 3 O.P.R. 1141 (O.C.C.P.S.), Eschweiler and Ontario Provincial Police supra, Karklins and Toronto Police Service supra, Favretto and Ontario Provincial Police supra, Pacitto and Toronto Police Service (May 6, 2004, O.C.C.P.S.) and Carson and Pembroke Police Service (March 9, 2006, O.C.C.P.S.).

The Respondent asserted that while consistency may be a hallmark of fairness, province- wide uniformity is not an appropriate objective. Schofield and Metropolitan Toronto Police Service supra, Carson and Pembroke Police Service (2001), supra and Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.)

The Respondent urged that we reject the Appellant's argument that the Hearing Officer erred by not finding that marijuana use is synonymous with abuse of alcohol and prescription drugs when considering disability resulting from substance abuse. The Respondent argued that the Hearing Officer correctly made a distinction between the use of alcohol and the use of marijuana. Simply put - marijuana use is illegal.

Mr. Meagher argued that there are limits to an employer's legal obligation to accommodate an employee's disability. He argued that while an employer has a duty to accommodate, it also has the right to discipline and if necessary to discharge. On this point he noted: Toronto Transit Commission and Amalgamated Transit Union (1997), 72 L.A.C. (4th) 109 (Geoby), Re Fraser Lake Sawmills and I.W.A.-Canada, Loc.1-424 (2000), 2000 CanLII 50089 (BC LA), 93 L.A.C. (4th) 407 (Turcotte), Re City of Vancouver and Vancouver Municipal and Regional Employees Union (1983), 1983 CanLII 4826 (BC LA), 11 L.A.C. (3d) 0121 (Hope) and Alberta Union of Provincial Employees v. Lethbridge Community College 2004 SCC 28, [2004] 1 S.C.R, 727 (S.C.C.).

Mr. Meagher rejected the Appellant’s contention that the Service did not go far enough to accommodate his disability. He noted that after being reinstated in 1997, Vaughan-Evans was not required to carry out the duties of a front line officer: he worked in an office, did not have to drive a police car, did not take Use of Force training, worked in a non- enforcement role, and on a reduced hours schedule. It was also noted that Constable Vaughan-Evans was referred to the Kingston treatment program by the Service EAP Office.

Mr. Meagher asserted that the test to determine whether the Service had met its legal obligation to accommodate the Appellant’s disability is not “whether anything else could have been done”. Re Toronto District School Board and C.U.P.E. (1999), 79 L.A.C. (4th) 365 (Knopf), Re Labatt Breweries Ontario and B.G.P.W.U., Loc. 304 (2002), 107 L.A.C. 126 (Bartolo) and Re York Region District School Board and C.U.P.E., Loc 1196 (2004), 2004 CanLII 94625 (ON LA), 128 L.A.C. (4th) 317 (Bowyer)

Mr. Meagher also argued that an employee has a legal obligation to assist in his own accommodation and that, to a large extent, given his repeated relapses, the Appellant failed to do this. He argued that in determining whether the duty to accommodate has been met the conduct of the Appellant must also be considered. Renaud v. Central Okanagan School District No. 23 (1992), 1992 CanLII 81 (SCC), 2 S.C.R. 970 (S.C.C.), R. v. Forsyth [1995] O.J. No. 4173 (Ont. Ct. Jus.) and R. c. Chenier J. Q. No. 10451 (C.A. Que.)

Further, Mr. Meagher asserted that the evidence did not support a finding that at the time of the events giving rise to Constable Vaughan-Evans’ suspension his mind was controlled by addiction. R. v. Horvath (1997), 1997 CanLII 9759 (SK CA), 117 C.C.C. (3d) 110 (Sask. C.A.) and R. v. Corner [2005] O.J. No. 3590 (Ont. Sup. Ct.)

The Appellant argued that the Hearing Officer did not give proper weight to Constable Vaughan-Evan’s employment history and community involvements as mitigating factors. Mr. Meagher rejected both of these assertions. He argued that the Appellant’s work record was not exemplary. Re Daymond Aluminum and C.A.W. Canada, Local 127 (2006), 154 L.A.C. (4th) 353 (Watters), Re Owens Corning Canada Ltd. And UNITE HERE, Local 1350 (2006), 2005 CanLII 94144 (ON LA), 142 L.A.C. (4th) 62 (Levinson) and Re Genfast Manufacturing Company and United Steelworkers of America, Local 3767 (2005), 2005 CanLII 94147 (ON LA), 135 L.A.C. (4th) 375 (Newman)

The Appellant submitted that the Hearing Officer failed to acknowledge, as a mitigating factor, evidence of Constable Vaughan-Evans’ rehabilitation. Mr. Meagher rejected this submission, noting that any "proof" of the Constable’s rehabilitation was based on evidence from him alone.

The Respondent also argued that any rehabilitation since the Appellant’s arrest on June 2, 2004 was not particularly relevant. Mr. Meagher suggested that what was relevant to determining a fair penalty is the circumstances at the time of the Appellant’s arrest. In support of this argument Mr. Meagher referred us to Cie Miniere Quebec Cartier v. Quebec (1995), 1995 CanLII 113 (SCC), 125 D.L.R. (4th) 577 (S.C.C.) and Toronto (City) Board of Education v. O.S.S.T.F., District 15 (1997), 1997 CanLII 378 (SCC), 144 D.L.R. (4th) 385 (S.C.C.) and Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (2005), 2006 CanLII 93332 (ON LA), 149 L.A.C. (4th) 69 (Roberts).

For the above reasons the Respondent requested an order dismissing this appeal and upholding the penalty imposed by the Hearing Officer.

Decision:

Constable Vaughan-Evans pled guilty to one count of discreditable conduct. Conviction is not at issue in this appeal.

The penalty imposed by the Hearing Officer was that Constable Vaughan-Evans resign from the Service within seven days or be dismissed. He appeals that decision.

The factors to be taken into account by a hearing officer when imposing a penalty are well established. There are three key elements to be considered. 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 were to remain a member. Williams and Ontario Provincial Police supra

There are also other considerations to be assessed in light of the particular 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 consideration.

Other relevant factors can include management approach, general or specific deterrence and the need for consistency. Reilly and Brockville Police Service supra and Schofield and Metropolitan Toronto Police Service supra

The Commission’s role on this appeal is different. Our function is not to second-guess a hearing officer’s decision, even if we may have imposed a different penalty. Rather, our role is to assess whether or not a hearing officer considered and appropriately weighed these principles in a fair and impartial manner. 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. Toronto (City) Police Service v. Kelly supra and Ontario (Provincial Police) v. Favretto (2004), 2004 CanLII 34173 (ON CA), 72 O.R. (3rd) 681 (Ont. C.A.)

How do these principles apply in this case?

In his 92 page sentencing reasons, the Hearing Officer described at some length the circumstances giving rise to the charge of discreditable conduct to which Constable Vaughan-Williams pled guilty. The Hearing Officer outlined the parties’ Agreed Statement of Facts, Constable Vaughan-Evans’ admission of guilt, the oral testimony and documentary evidence tendered on behalf of the Appellant at the sentencing hearing, and the legal arguments advanced by counsel.

The Hearing Officer noted that on the face of it, the case before him might be considered to concern the possession of small amounts of marijuana on two occasions. However, he stated that the matter of Constable Vaughan-Evans’ marijuana use was “far from straightforward”. The Hearing Officer found that the Appellant’s marijuana abuse while a member of the Service was part of a persistent and repeated pattern of conduct.

The Hearing Officer stated at pages 80 and 81 of his decision that Constable Vaughan- Evans’ conduct “has to be assessed as a whole and not in microscopic sections. A common series of events and repetitive misconduct may be considered as more serious than a single isolated incident.”

This is both a fair and correct statement.

To give this context, Constable Vaughan-Evans’ marijuana use began when he was 12 years old. It continued until he was 18. He became a police officer when he turned 19. In 1993 he was exposed to some traumatic events that caused him emotional distress. In the spring of 1994, to numb the symptoms of what later was diagnosed as Post Traumatic Stress Disorder, he turned to heavy marijuana use. This reached 10 to 12 joints a day.

Constable Vaughan-Evans’ marijuana habit was expensive. To pay for the drug the Appellant stole eight pay cheques belonging to his fellow officers totaling approximately $5,800. Eventually, he was charged criminally, pled guilty and received a conditional discharge plus probation for twelve months.

As a result of his criminal conviction, Constable Vaughan-Evans was charged with the disciplinary offence of discreditable conduct. He pled guilty to this charge as well and was ordered to resign within seven days or be dismissed from the Service. Short of immediate dismissal, this is the most serious penalty a police officer can receive.

Constable Vaughan-Evans appealed to the Toronto Police Services Board. The Board granted the appeal and ordered that he return to work with a substantial demotion subject to certain conditions. These conditions reflect the Service’s acknowledgement of Constable Vaughan-Evans’ medical situation and a commitment on his part to maintain a drug free lifestyle.

Constable Vaughan-Evans stopped attending Alcoholics and Narcotics Anonymous.

In late 2002 the Constable began playing guitar in two bars. In January, 2003, he started using marijuana heavily again. He testified that he was spending between $200 and $300 a month purchasing marijuana from his dealer contacts at the bars. These purchases occurred on at least 50 occasions.

The Hearing Officer noted at page 59 of his decision: “It was not lost on the Tribunal that Constable Vaughan-Evans had been fired and reinstated just a few short years earlier in relation to his use of marijuana, yet here he is again, a serving police officer, purchasing marijuana again, this time in public drinking establishments.”

Not surprisingly, this pattern of conduct once again intruded on Constable Vaughan- Evans’ workplace. On December 19, 2003, when returning from the washroom next to his office at Police Headquarters Constable Vaughan-Evans smelled strongly of marijuana. When questioned he denied he had been smoking and said the smell was from his cologne.

When the washroom was searched, there was also the strong odour of marijuana. A portion of a marijuana cigarette, or a “roach”, was found on the floor of one of the washroom cubicles. Constable Vaughan-Evans admitted the roach was his. He continued to deny he had smoked marijuana in the washroom, but acknowledged that he had smoked marijuana before coming to work that day.

This is certainly not to his credit. Constable Vaughan-Evans had either smoked marijuana just before or at work. At best, he was on duty at Toronto Police Headquarters after smoking a joint, with marijuana in his pocket, reeking of the drug.

By any definition this is outrageous behaviour warranting discipline.

It did not end there. Six months later, while under suspension, and on his way to sign in at Police Headquarters, Constable Vaughan-Evans was observed rolling a joint while parked in his car at the Eglinton subway station. He was arrested and charged with possession of marijuana.

On September 20, 2005, Constable Vaughan-Evans pled guilty to the criminal charge. He received his second criminal conviction and second conditional discharge together with probation for two years.

In our view the Hearing Officer’s finding that Constable Vaughan-Evans’ actions taken in context, amounted to serious misconduct, is amply supported by the record. As the Hearing Officer noted a number of times in his decision, the Appellant’s misconduct in 2003 and 2004 was strikingly similar to his misconduct in 1994 and 1995. During both periods the Appellant’s conduct was criminal in nature and a breach of his sworn duties as a police officer.

The Hearing Officer examined Constable Vaughan-Evans’ work history. He noted that the Appellant’s performance appraisals expressed a positive view of his work ethic. However, the Hearing Officer then observed at page 78 that “The downside of these glowing appraisals is the fact that some of them were completed at the height of Constable Vaughan-Evans’ marijuana use when he was stealing his co-workers’ pay cheques, possibly even his reviewer’s pay cheque, and he was described by medical experts as being stoned during this period.”

It is clear that Constable Vaughan-Evans has done some good police work during his career. However, it is striking that his service has been punctuated by lengthy suspensions, two criminal convictions, two periods of court ordered probation, a significant demotion and three years of drug use monitoring. These facts reduce significantly the mitigating value of the Constable’s positive work history.

The Hearing Officer acknowledged that Constable Vaughan-Evans had pled guilty to the criminal and disciplinary charges against him and expressed remorse for his conduct. However, it would appear that he had reservations about Constable Vaughan-Evans’ sincerity.

The Hearing Officer identified Constable Vaughan-Evans’ consistent, ongoing deceptions related to his heavy marijuana use. The Hearing Officer found that Constable Vaughan- Evans demonstrated a dishonest and self-serving character. At page 89 of his decision the Hearing Officer wrote: “Constable Vaughan-Evans has lied to his caregivers, he has lied to his physicians and to those who have attempted to assist him, he has deceived his fellow officers and supervisors, he deceived his wife.”

In our view, the record supports a finding of a persistent pattern of deception on Constable Vaughan-Evans’ part, intended to hide his heavy marijuana use from his family, employer and fellow officers.

Under the general heading of “Management Approach” the Hearing Officer identified and reviewed the policies in place at the Service concerning substance abuse. He acknowledged the obligation of the Service to accommodate employees with addiction related disabilities.

The Hearing Officer noted that addiction to marijuana is not synonymous with addiction to alcohol. This is self-evident. Marijuana is an illegal substance. Constable Vaughan-Evans broke the law every time he purchased and used marijuana.

The duty to accommodate must be considered in light of an individual employee and his or her employer. This is a shared responsibility which must take into account the essential requirements of the employment in question. The analysis to determine if the duty to accommodate has been met presents particular challenges in the disciplinary context where there is often a mix of culpable and non-culpable factors. This is the case here.

Counsel for the Appellant argued that the Hearing Officer erred when he found that the Service had met its legal obligation to accommodate the Appellant’s disability. He argued that the Service provided the Appellant with no more than “administrative support”, falling far short of the mandated reasonable accommodation.

The Hearing Officer’s decision addressed, in some detail, the steps taken to accommodate Constable Vaughan-Evans. At pages 68 to 69 of his decision the Hearing Officer wrote:

In 1995, when Constable Vaughan-Evans announced his addiction when arrested, he was referred by Jaan Shaer of the Toronto Police Services Employee Assistance Program to addiction treatment centres.

In 1996, when dismissed by Superintendent Kelly, he was reinstated by the Toronto Police Services Board with a Memorandum of Understanding involving a 3-year random drug testing initiative.

When he was reinstated in 1997, the Toronto Police Service placed him in a modified position, placing him in an inside desk job at 12 Division that did not require him to work a night shift. He was also placed on a modified shift schedule of reduced hours to accommodate him.

When the 12 Division posting proved problematic in that his co-workers were not happy with his presence, he was moved to another inside desk job at Police Headquarters in the Community Policing Support Unit.

The following is a brief description of some of the accommodations made on behalf of Constable Vaughan-Evans. He was to work in an office environment. There was no front-line officer requirement. He was not required to operate a police vehicle. He was not required to participate in Use of Force training. He was to work in a non-enforcement role, and he worked on a reduced hours, schedule per day …

How does Constable Vaughan-Evans respond to the various modifications made to tailor his integration into the Toronto Police Service? He smokes a marijuana cigarette in the washroom of Police Headquarters.

This act of December 19th, 2003, leads to his suspension and some 6 months later he is again arrested in his car in possession of marijuana.

The Defence suggestion that the Toronto Police Service has done nothing to assist in rehabilitating this officer is totally without foundation as well as offensive to those who tried to assist this officer.

Some of this is perhaps overstated. That being said, there are numerous instances where the evidence of other witnesses contradicts Constable Vaughan-Evans’ testimony that the Service did not provide him with any support or assistance.

At the same time the record supports the Hearing Officer’s finding that prior to June of 2004 the Appellant failed to take full advantage of the treatments and services extended to him, medical and otherwise, on and off the job, or to make a concerted effort to reform himself and overcome an addiction which led him to persistent criminal behaviour.

The Hearing Officer also considered case law which highlights the difficult tension between the duty to accommodate and the power to discipline. In our view the Hearing Officer properly weighed the Service’s efforts to accommodate the Appellant against the Appellant’s repeated criminal misconduct.

As the Commission noted in Hall and Ottawa Police Service (December 5, 2007, O.C.C.P.S.) at page 19: “There is a duty to accommodate. However, it is not bottomless or a license to breach statutory duties … It was certainly open to the Hearing Officer to conclude that accommodation in this situation would cause undue hardship on the Service.”

The Appellant sought help with his marijuana addiction from Dr. Frazer, the Pinewoods Drug and Rehabilitation Centre, the Barrie Detox Centre, the Canadian Forces Treatment Centre at Kingston, and Alcoholics and Narcotics Anonymous. Despite receiving treatments and assistance from his doctor and numerous institutions and programs from and after 1995 Constable Vaughan-Evans continued to use marijuana.

The Hearing Officer found that Constable Vaughan-Evans suffered repeated relapses despite various accommodations. For example, while attending a day program at the Pinewoods Centre the Appellant continued to use marijuana. After his reinstatement and while working on modified duties Constable Vaughan-Evans continued his use of marijuana leading to his arrest in his car.

In our view the Hearing Officer’s findings that the Constable underwent repeated relapses are supported in the record. This speaks directly to the question of Constable Vaughan- Evans’ potential for rehabilitation and usefulness to the Service. As the Hearing Officer stated at page 87 of his reasons: “I find that Constable Vaughan-Evans has had more than ample opportunity to reform and he seems consistently to be unsuccessful regarding this test.”

The Hearing Officer considered the evidence that Constable Vaughan-Evans had not used marijuana since his arrest in 2004, and that at the time of the hearing he was “drug free”. Dr. Frazer acknowledged that the sole source for this evidence was Constable Vaughan-Evans, and that there was no independent corroboration.

In our view, when considered against both the history of the Constable’s marijuana use between 1994 and 2004, and of his related deceptions, it was open to the Hearing Officer to treat this assertion with reservation. Similar assertions were made at Constable Vaughan-Evans’ criminal trial and disciplinary hearing in 1996. Constable Vaughan-Evans committed to a drug free life style when he was reinstated in 1997.

As the Hearing Officer fairly observed at page 91 of his decision: “Past behaviour is the best indicator of future conduct.”

The Hearing Officer also considered the impact on the reputation of the Service in the event the Constable returned to work and his history of heavy marijuana use became public knowledge. He found that there would be adverse publicity, and damage to the Service’s reputation and relationship with the community.

The special nature and obligations attached to the position of police constable are addressed by the Hearing Officer. At page 80 of his reasons he quoted with approval from Superintendent Kelly’s December 19, 1996 sentencing decision related to the pay cheque incident: “This Police Service has dedicated many officers and effort into educating the public on illegal drugs. More than anyone, police officers are witness to the devastation that illegal drugs can bring to a community and individuals. It has long been the policy of this Tribunal that zero tolerance with respect to illegal drugs is the only message to be sent to all members and the community at large. There can be no exceptions, otherwise the impact and credibility of the many drug programs directed at the public in general, and for the school population in particular, will be seriously compromised. For a police officer to become involved as a participant in a drug scene is totally unacceptable.”

In our view, the Hearing Officer’s findings about the great damage that would result to the Service’s reputation if the Constable continued to serve and his marijuana use became public knowledge are supported by the record.

In deciding the penalty the Hearing Officer considered the issue of deterrence and the importance of fashioning a penalty of sufficient severity so as to lessen the probability of a recurrence, either by the Appellant or by his fellow officers. In our view the penalty imposed by the Hearing Officer is severe but, given the circumstances, not disproportionate or outside of the range available to him.

Constable Vaughan-Evans repeatedly engaged in heavy marijuana use while employed with the Service. During his career he has pled guilty to two criminal charges and two charges of discreditable conduct. All four charges were directly related to his heavy marijuana use.

Constable Vaughan-Evans’ serious misconduct in 1994 and 1995 was in essence repeated in 2004 and 2005, despite an array of medical/psychological assistance, addiction counseling and the efforts of the Service to accommodate and reintegrate him into its operations. Every time he purchased and used marijuana the Appellant knowingly broke a law he had sworn to uphold, and breached his sworn duties as a police constable.

Police officers are subject to a higher standard. As we have written in previous cases, for a police officer to become involved in a drug scene is totally unacceptable.

In our view, the penalty imposed by the Hearing Officer does not reflect manifest error; it is considered, reasonable and just.

As a result, this appeal is dismissed.

DATED AT TORONTO THIS 15TH DAY OF JULY, 2008.

Murray Chitra Chair, OCCPS

Hyacinthe Miller Member, OCCPS

Garth Goodhew Member, OCCPS