OCCPS 09-11
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
Citation: Bromfield v. Hamilton Police Service, 2009 ONCPC 9
CONSTABLE WENDY BROMFIELD Appellant
HAMILTON POLICE SERVICE Respondent
Presiding Members: Garth Goodhew, Member Tammy Landau, Member
Appearances: Joanne Mulcahy, Counsel for the Appellant Marco Visentini, Counsel for the Respondent
Hearing Date: June 18, 2009
This is an appeal on consent from a penalty of demotion to third-class constable for a period of six months imposed on Constable Wendy Bromfield by Superintendent Ken Bond (the “Hearing Officer”) on January 28, 2009.
The penalty in question followed a plea and finding of guilt on January 20, 2009, for discreditable conduct contrary to section 2(1)(a)(ix) of the Schedule Code of Conduct, Regulation 123/98 (the “Code”). Conviction is not at issue.
Background:
Constable Bromfield pled guilty on February 22, 2008 to the criminal offence of causing a disturbance by fighting, an offence punishable on summary conviction. She subsequently received an absolute discharge and made a $200.00 donation to a local charity.
That conviction related to an incident which occurred on August 28, 2006, while Constable Bromfield was off-duty. She became involved in a verbal confrontation with another parent while at the Mohawk Sports Complex during a soccer game in which her child was playing.
As a result of the above, Constable Bromfield was also charged with the disciplinary offence of discreditable conduct. The specific allegation was that she had been “found guilty of … a criminal offence punishable upon summary conviction”.
At the disciplinary hearing Constable Bromfield pled guilty. The Prosecutor and Agent for the Appellant presented a joint submission for a penalty of demotion from first-class constable to second-class constable for a period of six months which would commence upon her returning to work. The Prosecutor advised that such a demotion would result in a loss of pay of $5,705.50.
The Hearing Officer did not accept the joint submission and imposed a penalty of demotion to third-class constable for a period of six months. Such a demotion would result in a loss of pay of $10,623.60. The Hearing Officer did not give notice to the parties that he was considering rejecting the joint submission, nor did he give reasons for rejecting it.
It is this decision that is the subject of this appeal.
Appellant’s Position:
Ms. Mulcahy, on behalf of the Appellant, submitted that the Hearing Officer made 14 errors in his decision; however, the most fundamental was rejecting or ignoring the joint submission on penalty.
She cited this Commission’s decision in Yakimishyn and Peel Regional Police Service (30 July, 2008, O.C.C.P.S.) at page 14:
…where there is a joint submission on penalty, a hearing officer must also undertake a very careful consideration of the submissions, particularly where there appears to have been an in-depth analysis of the factors enumerated in Williams and Ontario Provincial Police, supra. A joint submission on penalty ought to be accorded significant weight when deciding an appropriate penalty.
Ms. Mulcahy argued that the joint penalty proposal addressed the considerations of public interest, the seriousness of the misconduct, recognition of the seriousness of the misconduct, Constable Bromfield’s employment history, the need for deterrence, the ability to reform or rehabilitate the officer, damage to the reputation of the force, handicap and other relevant personal circumstances, the effect on the police officer and police officer’s family, management’s approach to the misconduct, consistency in disposition, financial loss and effect of publicity.
Ms. Mulcahy argued that the proposed penalty was not too lenient, and addressed the needs of the Service and the officer and that, by rejecting or ignoring the joint submission, the Hearing Officer did not act fairly or impartially. The Appellant further submitted that the Hearing Officer did not act on solid evidentiary foundation, or provide clear and cogent reasons for rejecting the joint penalty submission.
Ms. Mulcahy pointed to the Commission’s decision in Allen and Hamilton- Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.) at page 1007:
We accept the notion that a Hearing Officer is not bound by a joint submission as to sentence. However, if a Hearing Officer chooses to depart from what is proposed, it is essential that he or she provide clear and cogent reasons.
Further, Ms. Mulcahy asserted that the Hearing Officer erred in failing to provide any notice to the Prosecutor or to the Appellant that he was considering departing from the joint submission as to penalty and that this was a denial of natural justice.
Ms. Mulcahy noted that the Commission has jurisdiction to vary a penalty where it is unreasonable, or would amount to injustice or unfairness, or where all relevant factors have not been fairly or impartially considered or where there has been a failure to give proper weight to mitigating factors.
Ms. Mulcahy requested that we revoke the penalty imposed by the Hearing Officer and replace it with the penalty recommended in the joint submission.
Respondent’s Position:
As this is an appeal on consent, Mr. Visentini did not make any submissions challenging the Appellant’s position.
Decision:
The Commission’s role in a disciplinary appeal is clear. As stated in Yakimishyn and Peel Regional Police Service supra, at page 13:
It is well established that the Commission’s function on appeal is not to second guess a hearing officer’s decision, even if we might have imposed a different disposition. Rather, our role is to assess whether or not the hearing officer fairly and impartially applied the principles of sentencing and properly considered all relevant matters. Where there is a manifest error in principle, or the proper considerations are ignored, we may vary a disposition.
In cases where there has been a joint submission on penalty, the Hearing Officer is not obliged to accept such submissions. However, as the Commission noted in Kelly and Toronto Police Service (16 May, 2005, O.C.C.P.S.) at page 9, “when a hearing officer elects not to do so they must ensure that principles of fairness are respected and provide clear reasons that are based on a sound factual foundation and take into account the relevant sentencing factors.”
We agree with the parties that the Penalty Decision of the Hearing Officer provides no clear reasons for departing from the joint penalty submission.
Further, in Kelly and Toronto Police Service supra, this Commission highlighted the importance of requesting additional information to address the concerns of a Hearing Officer who is considering imposing a harsher penalty than the one submitted by the parties. Alternatively, if a Hearing Officer is considering imposing a harsher sentence than that which is proposed by a joint submission, a full penalty hearing should be directed.
In this case, the Hearing Officer rejected the joint penalty submission. However, he did not give the parties advanced notice that he was considering a more severe penalty than that which was proposed in the joint submission, nor did he provide the parties with an opportunity to address his concerns about the adequacy of the joint penalty submission. College of Physicians and Surgeons of Ontario v. Petrie [1989] O.J. No. 187 (Div. Ct.)
We agree with the parties that, in not giving notice that he was considering imposing a harsher penalty than that which was proposed, and in not giving the parties an opportunity to make submissions with respect to penalty, the Hearing Officer violated the principles of fairness.
For the above noted reasons the penalty imposed by the Hearing Officer cannot stand and is revoked.
Under section 70(6) of the Police Services Act R.S.O. 1990, c. P.15 as amended we have the authority to substitute our own decision for that of the Hearing Officer.
We find the penalty proposed by the parties in the joint submission was fair, reasonable, and within the acceptable range for cases with similar factors. The proposed penalty reflects the remorse expressed by Constable Bromfield both at her criminal trial and at her disciplinary hearing, her unblemished work history, and the commendations she has on file. We therefore do not have to rule on the acceptability of the penalty proposed.
Accordingly, we vary the Constable Bromfield’s penalty to demotion from first-class constable to second-class constable for a period of six months.
DATED AT TORONTO, THIS 24th DAY OF JULY, 2009
Garth Goodhew Tammy Landau Member, OCCPS Member, OCCPS