OCCPS-09-12
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
Citation: Martin v. Windsor Police Service, 2009 ONCPC 10
CONSTABLE WALTER MARTIN Appellant
WINDSOR POLICE SERVICE Respondent
Presiding Members: Roy Conacher, Member Garth Goodhew, Member Hyacinthe Miller, Member
Appearances: Jeffrey J. Hewitt, Counsel for the Appellant David M. Amyot, Counsel for the Respondent
Hearing Date: Thursday, January 15, 2009
On October 28, 2008 Constable Walter Martin filed a Notice of Appeal with the Ontario Civilian Commission on Police Services (the "Commission") pursuant to section 70 of the Police Services Act R.S.O. 1990, c. P.15 as amended (the "Act").
The original appeal was with respect to the conviction and penalty imposed on one count of neglect of duty and one count of deceit made on August 15, 2008 by Superintendent (retired) Maurice Elbers (the "Hearing Officer"). However, as of December 23, 2008, the appeal against conviction was withdrawn and the Appellant accepted the findings relating to misconduct.
Constable Martin’s sole appeal is the disciplinary penalty imposed on October 20,
- The penalty was that Constable Martin be dismissed from the Windsor Police
Service (the “Service”) in seven days, unless he resigned before that time.
Background:
Constable Martin began his policing career with the Service in July 1981 as a cadet. He was promoted to fourth-class constable in June 1983 and to first-class constable in March 1993, when he was assigned to Platoon #3 in the Traffic Branch. During
his career, the Appellant developed an expertise in traffic enforcement and the investigation of serious motor vehicle collisions. In order to continue with the work he enjoyed, Constable Martin chose not to participate in internal promotional processes. Prior to the events giving rise to the disciplinary hearing, Constable Martin had numerous letters of commendation and thanks from the Service and members of the community. He had no prior history of misconduct.
In June of 2000 Constable Martin was on duty on motorcycle patrol. He was hit by a motorist and suffered a number of injuries to his right and left elbows, forearm, left shin, knees, ribs and lower back. At the hospital, the attending physician treated and released the officer without completing x-rays or other diagnostic imaging. He experienced considerable pain and was off work until September of 2000. During that period of time, he was in receipt of Workplace Safety and Insurance Board (“WSIB”) benefits.
For a period of a year, he attempted to return to full-time duties. However, as a result of issues relating to pain management, the Service identified modified duties to accommodate the Appellant. A Functional Abilities Form assessment was completed. In March 2002, at the request of Constable Martin, he was transferred to the Collision Reporting Center (the “CRC”) associated with the East End Community Patrol. He was placed in a sedentary job with limited lifting, sitting and standing. During 2003, 2004 and 2005, Constable Martin claimed he was unable to perform the modified duties, complaining of recurrence or aggravation of his original injury. Despite ongoing medical consultations, chiropractic care and rehabilitation treatments during those years, the periods of absence gradually increased. During these absences, he received compensation from WSIB.
WSIB commissioned an Ergonomics Report. The report, dated February 15, 2005, concluded that the physical demands of the permanent modified alternate job did not exceed the officer’s medical limitations.
A Functional Abilities Evaluation Form, dated March 10, 2005, concluded that while the Appellant “was not physically able to perform all the required duties of his pre- injury position… he was physically able to perform the work duties of a Constable in the Collision Reporting Centre as outlined in the information provided.”1
The Service grew concerned about the recurring WSIB claims. Several claims submitted by Constable Martin to WSIB were rejected. In August 2005, Constable Martin’s supervisor reported to Human Resources of the Service that, in her opinion, Constable Martin had developed a questionable pattern of absenteeism. It appeared that he was taking most of the summer months off and returning to work just prior to his scheduled vacation time in the fall. The HR Manager conducted a review of Constable Martin’s attendance records, including comparison of sick leave and WSIB claims, vacation or furlough leave booked and taken and sick leave
utilization. The HR Manager examined the period from 2003 to 2006 and found that from the time of Constable Martin’s transfer to the CRC, the frequency and duration of sick leave absences had, in fact, increased.
The Appellant’s supervisor had also received information that Constable Martin was planning on taking part in an annual hunting trip that fall. The Service raised questions as to whether Constable Martin was engaged in any off-duty physical activities, while he was on sick leave pending a decision by WSIB, that might be indicative of his being able to perform the duties of his modified position.
In August 2005, the Service retained the services of ACI Limited, a private investigation agency. They were tasked with conducting surveillance of the officer to clarify the status of the Appellant’s physical limitations.
An ACI Limited investigator undertook a ‘drive-by’ surveillance project that included videotaping Constable Martin going about his business in public. The surveillance videotapes showed the Appellant repeatedly engaging in physical activity that was inconsistent with his reported status as being unable to work, even on modified duties in the CRC. Constable Martin returned to work in October 2005 after his scheduled vacation.
In May 2006, he again went on sick leave claiming re-injury to his lower back caused by his work duties. He submitted another claim to WSIB. On May 17, while adjudication of his claim was pending, Constable Martin had a chance encounter with his supervisor at the Windsor Police Training Centre. The Appellant advised his supervisor that it was the fault of WSIB that he was off work. They had refused to approve new knee braces and he had fallen and re-injured his back. His chiropractor was of the opinion that his normal mobility had decreased dramatically since his accident.
On May 24, 2006 surveillance was resumed. On May 30th, the investigator reported that Constable Martin was observed lifting 37 pound bags of manure on and off a truck, attaching metal ramps on and off a trailer hitched to the rear of the vehicle, lifting a large rototiller into the bed of the trailer and operating the rototiller in his garden. Despite medical reports purporting that he had a limited range of motion, the Appellant was seen performing these and other strenuous tasks involving bending, lifting and stretching with “relative ease” and no indications of pain. The investigator provided the Service with sworn statements and written reports regarding his observations and the surveillance videotapes.
Also on May 30, 2006, at approximately the same time as Constable Martin was engaging in the above-noted activities, an assistant in the Service’s Human Resources Unit left a voice message in which she inquired about his well-being and advised that she was sending him a Functional Abilities Form to be completed by his chiropractor. About 90 minutes later, he returned her call, indicating that he had
been outside with his dog when she left the message. At the time, Constable Martin was not aware he was under surveillance.
On May 31, 2006, Constable Martin completed a Progress Report and submitted it to WSIB. He described the condition of his injury as: “Ongoing, unable to bend back, unable to kneel due to knee pain.” He signed the form, attesting to the fact that: “All the statements in the foregoing report are true to the best of my knowledge and belief. No information required has been concealed or admitted and I am claiming ongoing benefits.”2
In a June 1, 2006 report prepared by the Appellant’s chiropractor for WSIB, it was noted Constable Martin had continuing problems with regard to his lower back. The restrictions noted under capabilities were: walking as tolerated; standing, less than
15 minutes; sitting, 15 minutes; lifting floor to waist; no lifting waist to shoulder; no stair climbing; limited ability to use hands to hold objects; limitations with regards to bending or twisting of his lower back, repetitive movement of his lower back, above and below shoulder activity; and low exposure to vibration and physical exertion as tolerated. The recommendation was that there be a gradual return to work for a maximum of one hour per day and that the limitations would have a duration of one week.
Subsequently, Human Resources left a voicemail message asking the Appellant to report to work for his next shift, for a period of one hour. On June 6, 2006, Constable Martin left a voice message response: “I was pretty well out on the couch last night, unable to move but you know you guys want me back to work, you’re gonna force me back to work. I’ll be there. I can’t fricken move, I can’t do anything
...But... you know what...nobody up there seems to care so like I said before we are a liability to this place and I told that to GS and me and him got into it and this is just another example of it so don’t worry I will be there today.” 3
He returned to work on June 6 and booked off sick on June 9, 2006 claiming re- injury to his back4. He completed another Progress Report claiming “lower back re- aggravated, unable to bend, constant extreme pain, inability to sleep properly due to pain.”
On June 13, 2006, the officer’s chiropractor completed a Functional Ability Form reporting that attempting to return to work had aggravated the officer’s lower back. He diagnosed him as being unfit for any light duties for an estimated duration of two to four weeks.
Surveillance and observations of Constable Martin’s activities from June 14 to June
16 did not show that he was exhibiting any noticeable pain or other physical symptoms during his daily activities. The noted exceptions occurred when he attended sessions with his chiropractor and at a WSIB mediation session on June
16, 2006.
The purpose of the mediation session with his employer was to discuss his claims of injury and the Service’s desire that he return to work in the modified position in the CRC. During the meeting, Constable Martin was observed grimacing and groaning, as if in pain. In an agreed-upon Return-to-Work Plan, the Appellant agreed to return to work commencing June 19, 2006 for three hours a day for three days a week with the objective of graduating to a full work schedule over the following seven weeks. A number of additional accommodations were made at his request.
Constable Martin returned to work on June 19, 2006. He booked off sick on July 10, indicating his back injury had been aggravated when he was bending to examine a vehicle in the parking lot at the CRC.
On July 14, 2006, surveillance videotapes of Constable Martin showed him pushing a large shopping cart full of items to his vehicle from a big-box store, then lifting a 40 pound bag of dog food and other groceries from the shopping cart into the trunk of his vehicle.
Based on the evidence in the private investigator’s reports that Constable Martin was engaging in physical activities inconsistent with his claims of ongoing disabilities, the Service made a formal objection to WSIB with respect to funding further claims. WSIB completed another fitness for work review.
By letter dated July 17, 2006, WSIB indicated that the modified position available for Constable Martin was within his reported limitations. Further, as there was no loss of earnings 72 months after the original injury, his claim was denied. WSIB stated that no further funds would be paid.
On August 25, 2006, Constable Martin was videotaped at a roadside truck centre walking on uneven ground and bending over to inspect his car door, with no observable physical difficulties. The videotape appeared to contradict his claims of mobility impairment so severe he could not perform even limited job duties for any significant length of time.
On September 6, 2006, Constable Martin was served with a Chief’s Complaint. That Complaint, dated September 5, 2006, detailed the information and observations gathered during the investigation and surveillance of the officer’s activities from May onwards. The Complaint indicated that Constable Martin’s conduct amounted to neglect of duty, deceit and discreditable conduct. He was required to respond by September 25, 2006. On September 8, Constable Martin left on his scheduled vacation. On September 22, 2006, upon his return, he filed a response in which he
denied all of the allegations contained in the Complaint.
On September 25, 2006, he officially returned to work. However, this date corresponded with the start of a previously scheduled vacation time. Upon his return on October 13, the Service suspended him with pay.
Constable Martin was subsequently served with Notices of seven counts of misconduct. The particulars of the charges against Constable Martin were as follows:
Count #1.
IT IS ALLEGED that between May 9, 2006 and September 24, 2006, both dates inclusive, Constable Walter Martin did commit NEGLECT OF DUTY in that he feigned or exaggerated sickness or injury to evade duty on days that he reported off work due to back pain, contrary to Section 2(1)(c)(viii) of the Code of Conduct, Regulation 123/98 of the Revised Regulations of Ontario
1998 and therefore, contrary to Section 74(1)(a) of the Police Services Act, R.S.O.1990, as amended by the Police Services Act 1997.
Count #2
IT IS ALLEGED between May 9th, 2006 and September 24th, 2006, both dates inclusive, at the City of Windsor, Ontario, Constable Walter Martin did commit DISCREDITABLE CONDUCT in that he acted in a disorderly manner or in manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force, contrary to Section 2(1)(a)(xi) of the Code of Conduct …
Count #3
IT IS ALLEGED that May 23, 2006 at the City of Windsor, Ontario, Constable Walter Martin did commit a DECEIT in that he willfully or negligently made a false, misleading or inaccurate statement pertaining to his official duties, contrary to Section 2(1)(d)(ii) of the Code of Conduct …
Count #4
IT IS ALLEGED that on May 30th, 2006 at the City of Windsor, Ontario, Constable Walter Martin did commit a DECEIT in that he wilfully or negligently made a false, misleading, or inaccurate statement pertaining to his official duties, contrary to Section 2(1)(d)(ii) Code Conduct ...
Count #5
IT IS ALLEGED that on June 6, 2006 at the City of Windsor, Ontario Constable Walter Martin did commit a DECEIT in that he willfully or negligently made a false, misleading, or inaccurate statement pertaining to his official duties, contrary to Section 2(1)(d)(ii) of the Code of Conduct …
Count #6
IT IS ALLEGED that on June 19, 2006 at the City of Windsor, Ontario Constable Walter Martin did commit a DECEIT in that he willfully or negligently made a false, misleading, or inaccurate statement pertaining to his official duties, contrary to Section 2(1)(d)(ii) of the Code of Conduct …
Count #7
IT IS ALLEGED that on July 10th, 2006 at the City of Windsor, Ontario Constable Walter Martin did commit DECEIT in that he willfully or negligently made a false, misleading or inaccurate statement pertaining to his official duties, contrary to Section 2(1)(d)(ii) of the Code of Conduct …
On August 15th, 2008, Constable Martin was found guilty of neglect of duty under Count #1 and deceit under Count #4. With respect to Counts # 2, 3, 5, 6, & 7, the Hearing Officer found the particulars to be the same as contained in Count #1 and dismissed those charges.
On October 20, 2008 the Hearing Officer imposed the penalty of dismissal or resignation in seven days.
Motion:
On December 23, 2008, the Appellant filed a Notice of Motion with the Commission for an order allowing the introduction of fresh evidence. The order would be issued under the authority granted by section 70 (5) of the Act.
The motion was argued on January 15, 2009.
Mr. Hewitt sought leave to introduce letters of character reference. He prefaced his arguments by noting that he was not defence counsel during the original proceeding. He argued that the record of the officer prior to the incident in question was relevant. Further, he took the position that, if the record had not been considered by the Hearing Officer in the past, it ought to be considered by the Commission.
Mr. Hewitt asserted that this evidence is credible, will have an important influence
on the outcome of the appeal and is relevant to the issue of penalty, being that there is no more serious or significant penalty than demotion. The letters speak to the issues of likelihood of reform or rehabilitation and the impact of Constable Martin’s continued presence on the Service and his colleagues. He further argued that the receipt of such evidence would be just in the circumstances and assist the Commission in determining the appeal.
In support of his argument, Mr. Hewitt brought to our attention the relevant section of the Act, Palmer v. Her Majesty the Queen (1980), 1979 CanLII 8 (SCC), 1 S.C.R. 759 (S.C.C.), Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.), Aujla and Ontario Provincial Police (1997), 3 O.P.R. 1147 (O.C.C.P.S.) and Burgess and St. Thomas Police Service (1989), 2 O.P.R. 822 (O.P.C.).
Finally, Mr. Hewitt cited a number of cases asserting that the rules of admissibility for tribunals should be less formal, that a lack of previous "due diligence" should not be a bar to the admission of fresh evidence where such evidence is essential to obtaining a just result, and that each case must be considered in the context of the overall legislative scheme. He noted that he was also relying on the concerns expressed in the Hearing Officer’s decision, that he had heard no character evidence during the sentencing phase of the hearing. He argued that we can accept new evidence with respect to penalty as well as conviction, that the letters are significant and could have affected the original disposition.
In response, Mr. Amyot argued against the admission of the letters.
He asserted that, in the normal course of events, appeals to the Commission should be heard on the record. New or fresh evidence should be received in only the most compelling situations.
He noted that the Appellant was represented by counsel at the original hearing. Introduction of character evidence was canvassed before the Hearing Officer at the proceedings on August 15, 2008. Mr. Amyot further argued that this evidence could have been submitted during the lengthy hearing or prior to consideration of penalty. At the September 18, 2008 disposition hearing, the Prosecution specifically questioned the Appellant’s decision not to introduce character evidence. However, the Appellant failed to adduce any character evidence at that time nor has he provided any such evidence in support of this motion, as the Commission’s Rules of Practice require. The Appellant has not met the test enumerated by this Commission.
According to Mr. Amyot, there is no proof that the Appellant’s counsel committed an oversight with respect to requesting an adjournment for compilation of character evidence. The period of time between the decision on conviction and the decision on sentencing was one month. The Appellant had the opportunity to produce a submission, but did not. Mr. Amyot argued that the due diligence test in Palmer had
not been satisfied.
With respect to Palmer, Mr. Amyot noted that the authors of the character references cannot be confirmed nor can they be questioned about their understanding of the nature of the charges or their knowledge of the reasons for the conviction. Because the letters do not speak to the matter being appealed to this Commission, their credibility would be questionable.
Mr. Amyot submitted that the case before us is an appeal of penalty and distinguishable from the cases cited by the Appellant. In Reilly, the officer was appealing both conviction and penalty. Given the original conviction was a live issue, it was fair to admit additional relevant evidence. In Burgess, the fresh evidence also went to the issue of conviction. In Aujla, it was just to admit additional evidence because the hearing officer did not consider the correct factors with respect to penalty.
Mr. Amyot argued that the Appellant has provided no confirmation the fresh evidence is sufficiently cogent or weighty to change the original decision. Further, the Hearing Officer, in his decision, addressed the relevant disposition factors in detail. He also noted his concerns about Constable Martin’s credibility. Admission of the evidence would be prejudicial and tantamount to a re-hearing.
He submitted that the motion should be denied.
Decision on Motion:
At the conclusion of arguments on January 15, 2009, we denied the Motion. The following are our reasons.
We have reviewed the submissions of counsel, the record of the original proceedings and the transcript of the trial and sentencing.
Certain facts are clear. Constable Martin was represented by legal counsel throughout the course of his disciplinary proceedings. Upon being found guilty, Constable Martin's lawyer made submissions as to sentence. Instead of calling witnesses, he elected to submit a detailed brief to the Hearing Officer and make an oral presentation.
Section 70(5) of the Act provides that appeals to the Commission are normally to be heard on the record. However, the Commission is also vested with the authority to "receive new or additional evidence as it considers just". This has been done in past cases where the principles enumerated in Palmer have been satisfied.
Section 15 of the Statutory Powers Procedure Act R.S.O. 1990, c. S.22 as amended (“SPPA”) provides that a tribunal may admit into evidence at a hearing
any document “relevant to the subject-matter of the proceeding and may act on such evidence.” In accordance with section 22(3) of the Act the foregoing provision of the SPPA has no application to a hearing under section 70(5) of the Act.
The Act does not set out what factors we are to take into account when attempting to assess whether or not it would be "just" to receive either new or fresh evidence. In this respect the decision of the Supreme Court of Canada in Palmer is useful. While it deals with the issue of the admission of new evidence in criminal appeals, it enunciates certain helpful principles. At page 775 of the decision, Mr. Justice McIntyre sets out the following four part test:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
These principles must be considered in light of the function of the Commission as set out in section 70 of the Act. Palmer provides a structural framework within which the Commission must assess the relevancy, credibility and affect of the disputed evidence on the result.
Rule 14.4 of the Commission’s Rules of Practice also outline the process to be followed with respect to bringing forward a motion, which “shall be accompanied by any evidence to be relied upon.”
It is clear to us that Constable Martin or his counsel could have called character witnesses prior to sentencing, but chose not to do so. In Gardner and Ontario Provincial Police (October 31, 2008, O.C.C.P.S.) this Commission considered a similar motion which was not a preliminary matter but instead, dealt with evidence relative to the entire appeal. The evidence in question was significant and could have affected the entire proceeding, had it been available to the hearing officer.
In this case, however, we find ourselves in a factual vacuum with respect to why the character evidence was not produced at the disciplinary hearing when, with due diligence, it could have been. We have no knowledge of the contents nor can we confirm the circumstances under which the letters were written or the extent to
which the authors were aware of the Appellant’s situation, including the disciplinary charges and subsequent findings of guilt.
The fresh evidence Mr. Hewitt asks us to admit is not, in our view, potentially decisive of the penalty. Given the substantial brief of evidence, including letters and commendations relating to the character and employment background of the Appellant submitted to the Hearing Officer at the original proceeding, and the extent to which the Hearing Officer’s written decision demonstrates consideration of that evidence and the credibility of testimony, we are not persuaded that the outcome at the hearing would have been different.
To permit introduction of character evidence at this stage of the proceedings would, in essence, be allowing a rehearing of the sentencing portion of the original proceedings. That would not be proper. We find that the Appellant has not met any of the four tests set forth in Palmer.
Accordingly, we are not prepared to admit fresh evidence and the motion is dismissed.
Appellant’s Position on Appeal:
On behalf of Constable Martin, Mr. Hewitt confirmed that the officer accepts the Hearing Officer’s findings related to misconduct. He is appealing the penalty of dismissal on the basis that it is harsh, excessive and inconsistent with other sentences imposed for comparable misconduct.
The Appellant submitted that the main issue in this appeal is: Did the Hearing officer properly consider and apply the factors of sentencing when imposing the penalty of dismissal? He submits that the Hearing Officer did not.
The Appellant further stated that the Commission may vary a penalty where there has been a manifest error in principle or where the Hearing Officer has not properly considered and applied the factors of sentencing when imposing a penalty. Quintieri and Toronto Police Service (2001), 3 O.P.R. 613 (O.C.C.P.S)
He argued that any penalty must be tailored both to punish and to deter while not causing undue or excessive hardship and yet be sufficient to demonstrate that any recurrence will not be tolerated. Kelly and Toronto Police Service (May 16,
2005, O.C.C.P.S.)
Regarding the sentencing, Mr. Hewitt emphasized the importance of the principle of consistency and that consistency in the disciplinary process is the hallmark of fairness. A penalty must be consistent with the facts and with similar cases dealt with in the past. Schofield and Metropolitan Toronto Police Service (1984), 2
O.P.R. 613 (O.P.C). The Hearing Officer was not consistent in imposing a
penalty of dismissal because he failed to take into account other penalties imposed by the Service. Mr. Hewitt argued that the Service has imposed less severe penalties than dismissal on officers who committed more reprehensible misconduct. Further, the Hearing Officer wrongfully equated Constable Martin’s conduct with that of Constable Williams in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S).
He drew our attention to page 9 of his Factum, which contained summaries of nine cases of Service officers who, in the opinion of the Appellant, committed egregious acts far more serious than his and yet none of them received the penalty of dismissal. The penalties for these nine included loss of hours, demotion and admonishment.
In further support of his argument, the Appellant referred to the recent unreported case of Sergeant Thomas Rettig. This officer had received a criminal conviction for theft. At a subsequent disciplinary hearing he pled guilty to one count of corrupt practice and one count of discreditable conduct. Despite these convictions and extensive media coverage, damage to the reputation of the Service along with the impact on Sergeant Rettig’s reputation and his ability to function as a productive member of the Force, he was not dismissed but demoted from sergeant to first-class constable.
The Appellant also presented summaries of penalties assessed against twelve police officers from across the province. These cases involved convictions for discreditable conduct, neglect of duty and insubordination. The penalties varied from a reprimand to loss of hours and demotion. No one was ultimately dismissed; however, in four of the cases the original penalty of dismissal was varied to a lesser punishment.
The Appellant, the Respondent and the Hearing Officer all agreed that there are no police disciplinary cases directly on point with the facts and circumstances in Constable Martin’s case. They also agreed that examination of labour relations cases in other sectors could be instructive.
Mr. Hewitt noted the statement in Gregg and Midland Police Service (2001), 3
O.P.R. 1522 (O.C.C.P.S.) that the dismissal of an officer is the most serious punishment that can be imposed in a disciplinary proceeding and must be reserved only for those cases in which the conduct is so reprehensible that the officer is no longer useful to the service.
Mr. Hewitt also referred to the statement by Mr. Justice Iacobucci of the Supreme
Court of Canada in McKinley v. B.C. Tel. (2001) S.C.R. 161 at paragraph 57:
I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and the
dishonesty in order to assess where it is reconcilable in sustaining the employment relationship. Such an approach mitigates the possibility that an employee would be duly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause.
Both the Appellant and the Respondent agree that disciplinary hearings under the Act are administrative proceedings directed at employment concerns. Godfrey v. Ontario Police Commission (1991), 1991 CanLII 7115 (ON CTGD), O.J. No. 1446 at paragraph 41 where Watt, J. stated:
Although there is a public aspect to policing which mandates a disciplinary procedure somewhat different from that found in the traditional private employment context, disciplinary proceedings remain, nonetheless, essentially a matter of labour relations within the police force, an internal disciplinary procedure between the officer (the employee) and his or her superior (employer)…That the disciplinary procedure is mandated by regulations passed pursuant to a public statute does not alter the fundamentally private and internal nature of the disciplinary process. The difference is procedural and not substantive.
Mr. Hewitt argued that while the disciplinary process is guided by the Act, the substantive principles to be applied should follow those employed in the traditional labour relations context. Accordingly, he referred us to a number of cases in the private labour relations field.
In Trimag and United Steelworkers of America, Local 6946 (2006), O.L.L.A. No.
234 the arbitrator had videotape evidence that the defendant was not honest with the employer respecting his disability and yet he ruled that the employee’s conduct as a whole did not constitute fraud nor did it warrant discharge. In Re Boart Canada Inc. and C.A.W. Loc. 1256 (1998), O.L.A.A. No. 136, the employee who was injured and off work, was observed bowling and initially lied to the employer about this physical activity. The employee had been dismissed but was reinstated by the arbitrator. He was of the view that the employee’s behaviour was not fraudulent.
In Laurentian University and Laurentian University Staff Union (2003), O.L.A.A. No. 477, an employee, who was on sick leave, was observed working at another job. She denied this and was dismissed for fraudulent abuse of sick leave. The arbitrator reinstated the employee because of a series of factors including her general reputation of honesty, her long service, her clear disciplinary record and
the severe financial loss brought about by her dismissal. The arbitrator ruled that the employee’s behavior did not justify dismissal.
Finally Mr. Hewitt called our attention to Re New Flyer Industries Ltd. (2000), 85
L.A.C. (4th) 304 (Manitoba), in which the employee was dismissed for breach of trust when videotaped evidence showed him involved in physical activities inconsistent with the medical conditions for which he was off work. The arbitrator found that the employee had exaggerated his condition and was taking advantage of his injury. He also found that the employee was dishonest in his dealings with his employer thus committing a breach of trust. Nevertheless the arbitrator found that dismissal was too severe a penalty. This was the individual’s first offence and no warnings had been given. The principle of progressive discipline had not been applied.
Mr. Hewitt made reference to other well-established principles that a Hearing Officer must apply while imposing a penalty. In Williams the Commission mandated that the Hearing Officer must consider:
(a) the nature and serious nature of the misconduct; (b) the ability to reform or rehabilitate the officer;
(c) the damage to the reputation of the police force that would occur if the officer remained on the force.
Mr. Hewitt also stated that there are other considerations to be assessed in light of the particular conduct in question. These would include the officer’s:
(d) Employment history and experiences
(e) recognition of the seriousness of the transgression, and
(f) handicap or other relevant consideration.
It is the Appellant’s assertion that the Hearing Officer erred by failing to give proper consideration to these factors and by failing to consider penalties other than dismissal.
Mr. Hewitt argued that the Hearing Officer simply stated that he gave certain sentencing principles proper consideration without providing any elaboration. In his failure to specify how he gave them consideration he was merely paying them lip service.
The Hearing Officer described Constable Martin’s conduct as being “of the most serious nature.” It was Mr. Hewitt’s contention that the disciplinary cases presented contained many examples of more egregious conduct which had not led to dismissal. He further argued that the Hearing Officer erred by treating Constable Martin’s lack of remorse or failure to make an apology as an aggravating factor.
Mr. Hewitt suggested the Hearing Officer gave insufficient weight to Constable Martin’s long and unblemished employment record. The need to provide deterrence could have been adequately addressed through the serious but less severe penalty of demotion in rank with the resulting reduction in salary.
Mr. Hewitt stated that the Service failed to apply the principles of progressive discipline. He referred to the Hearing Officer’s statement that the Service’s HR Department monitored Constable Martin’s sick leave and that “red flags” appeared. Mr. Hewitt contends that the Service should have intervened at an earlier stage rather than initiating surveillance which led ultimately to the disciplinary charges and the penalty of dismissal.
The Hearing Officer erred by, in effect, equating media coverage of a disciplinary hearing as leading automatically to the damaging of the reputation of the police force. The Appellant’s position is that the determination of damage should arise from the nature of the officer’s conduct and not from media coverage.
He also challenged the Hearing Officer’s contention that Constable Martin’s diminished credibility could hinder future investigations if he remained with the Service. Mr. Hewitt argued that the Appellant’s credibility was superior to that of many officers who had committed more serious offences but were not dismissed. Mr. Hewitt argued that even though the Hearing Officer knew that Constable Martin had a life-long back injury, he failed to consider this handicap as a significant factor. Mr. Hewitt also submitted that the Hearing Officer failed to take into consideration the catastrophic effect dismissal would have on Constable Martin and his family.
The Hearing Officer, in his decision, stated that the Service did not have any flexibility when it came to determining the penalty for the type of behavior perpetrated by Constable Martin. Mr. Hewitt states that this is simply not true as evidenced by the penalties meted out by the Service in other disciplinary cases.
For all of the above reasons, the Appellant submitted there was manifest error in principle. Proper considerations were ignored by the Hearing Officer. Therefore, Mr. Hewitt asserted that the Commission should vary the penalty of dismissal and order a penalty appropriate in the circumstances and consistent with past sentencing practices.
Respondent’s Position on Appeal:
Mr. David Amyot, on behalf of the Service, argued that Constable Martin received a full, fair and impartial hearing and that the penalty should stand.
He submitted that the issue on the appeal is: Did the Hearing Officer fairly and impartially consider and apply the appropriate dispositional factors when the
penalty of dismissal was imposed? The Respondent’s position is that the Hearing Officer did achieve these goals. Mr. Amyot further argued that the penalty is reasonable and within the range of appropriate penalties under the Act as well as under labour and employment law decisions. The decision does not contain any manifest error in principle.
Mr. Amyot noted that the role of the Commission is well established when hearing an appeal on penalty. That role is not to second guess a Hearing Officer’s decision but rather to assess whether or not the Hearing Officer properly considered and weighed the appropriate sentencing factors in a fair or impartial manner. He further posited that the Commission may vary a penalty only when there are the strongest grounds for variance or where there has been a manifest error in principle. The Commission’s approach to a decision of a Hearing Officer should be deferential. Mr. Amyot cited Vaughan-Evans and Toronto Police Service (July 15, 2008, O.C.C.P.S.), Williams and Ontario Provincial Police supra and Ozon and Ontario Provincial Police (1998), 3 O.P.R. 1227 (O.C.C.P.S.).
In addition to the penalty considerations noted by the Appellant, the Respondent submitted that the Hearing Officer must consider the public interest, procedural fairness, and whether or not there was provocation or loss resulting from unpaid interim administrative suspension.
In his decision, the Hearing Officer properly stated that, in determining a penalty, it is important to consider the public interest. He observed that the public holds the police in high regard and expects accountability and Constable Martin was convicted of neglect of duty and deceit. Mr. Amyot argued it is important that the penalty imposed impress on the public that misconduct by an officer will lead to appropriate sanctions. Schofield, supra.
The Hearing Officer characterized Constable Martin’s behaviour as being of the most serious nature, in that the officer betrayed the trust of the community and his employer. The Hearing Officer, having heard and weighed the evidence, concluded that Constable Martin would say and act in ways that would best suit him and it did not matter whether it represented the truth or not.
Mr. Amoy rejected the Appellant’s position that Constable Martin’s conduct was not as serious as other forms of misconduct that have historically warranted dismissal. He argued that the public expects a higher standard of behaviour than they expect from themselves. In support of this position, Mr. Amyot cited Hrycyschyn and Ontario Provincial Police (1993), 2 O.P.R. 956 in which the Commission stated at page 957:
In our opinion the proper approach to take is to estimate the penalty that might be paid by a civilian with no previous misconduct on his or her record and then to add to that an
increase in the penalty because of the fact that this person is a police officer.
Neither the Respondent nor the Appellant could locate any police disciplinary cases which pertained directly to the charge of feigning or exaggerating sickness or injury to evade duty. As a result they both agreed that it was appropriate to consider decisions from the civilian labour and employment field in order to establish an appropriate range of penalties for similar conduct.
Mr. Amyot argued that feigning or exaggerating sickness or injury to evade duty is conduct which goes to the core of the employment relationship and is a breach of trust tantamount to an act of theft which could lead to dismissal. He referred to Kohler Ltd. v. Hytec Employees Assn. (Funk Grievance) (2007), 168 L.A.C. (4th)
Mr. Amyot noted Commission decisions that theft committed by police officers is considered very serious misconduct as are other forms of breach of trust for personal advantage. Absent significant mitigating circumstances the penalty has been dismissal. Buckle and Ontario Provincial Police (May 11, 2005, O.C.C.P.S.), Mowers and Hamilton-Wentworth Regional Police Service (1999), 3
O.P.R. 1327 (O.C.C.P.S.), Hassan and Peel Regional Police Service (September
8, 2006, O.C.C.P.S), Re Ville De Granby and Fraternite Des Policiers De Granby
Inc. (1981), 1981 CanLII 4537 (QC LA), 3 L.A.C. (3d) 443, Spizziri and Ontario Provincial Police (1988), 2
O.P.R. 799 (O.P.C.) and Delano and Niagara Regional Police Service (1998), 3
O.P.R. 1297 (O.C.C.P.S.)
Mr. Amyot maintained that unlike the other Service disciplinary cases named by the Appellant, Constable Martin’s misconduct was not a momentary lapse in judgment or unintended behaviour or an individual act of human frailty or the result of a single act but rather was the result of a deliberate attempt on his part to deceive the Service over an extended period of time for his own personal advantage and convenience. Such misconduct goes to the heart of the officer’s integrity, character and therefore directly impacts the officer’s future effectiveness and usefulness. Delano, supra.
Mr. Amyot submitted that the Hearing Officer’s finding that Constable Martin’s misconduct was serious, reasonable and consistent with both prior disciplinary decisions and civilian labour relations decisions.
He rejected the Appellant’s contention that the Hearing Officer was in error by considering Constable Martin’s lack of remorse or an apology as an aggravating factor. He noted that, during the hearing, the Prosecution stated that these factors were not to be treated as aggravating.
The Respondent also rejected the Appellant’s claim that the Hearing Officer did
not give sufficient weight to Constable Martin’s employment history as a mitigating factor in his assessment of the appropriate penalty.
The Hearing Officer applied the sentencing principle of need for deterrence in a fair and impartial way. The penalty of dismissal was reasonable and within the range of acceptable penalties. Hassan and Peel Regional Police Service supra, Schofield supra, and Re Canada Safeway Ltd. and United Food and Commercial Workers International Union, Local 1998 CanLII 30020 (BC LA), 2000, 71 L.A.C. (4th) 107
The Hearing Officer properly found that Constable Martin’s credibility had been irreparably destroyed and that he was no longer fit to be a police officer. He argued that the Hearing Officer’s findings on these factors were both reasonable and fair. Mr. Amyot rejected the Appellant’s contention that the withdrawal of the appeal of conviction is an acknowledgement of wrongdoing or acceptance of responsibility. In Mr. Amyot’s submission, that position is disingenuous and should not be given any weight. The lack of evidence of remorse and lack of truthfulness have impacted negatively on Constable Martin’s potential for rehabilitation or reform. The Hearing Officer was entitled to consider these factors. Karklins and Toronto Police Service (September 25, 2007, O.C.C.P.S,), Parent and Hawkesbury Police Service (1998), 3 O.P.R. 1249 (O.C.C.P.S) and Trumbley and Metropolitan Toronto Police Service (1991), 2 O.P.R. 894 (O.C.C.P.S.)
The Respondent asserts that if Constable Martin remains in the Service the damage to its reputation would be considerable since the case received significant media coverage in the Windsor area. The Hearing Officer was entitled to consider the public knowledge of the misconduct in the context of considering its effect upon the reputation of the Service. Constable Martin’s credibility had been damaged. This could seriously jeopardize an investigation if Constable Martin was involved and could call into question any evidence presented by him in court. Hassan and Peel Regional Police Service supra; White and Reid and Windsor Police Service (2000), 3 O.P.R. 1434 (O.C.C.P.S.) and Hinds and Ontario Provincial Police (1990), 2 O.P.R. 880 (O.C.C.P.S.)
Handicap and other relevant considerations are factors a Hearing Officer must consider when determining a penalty. These factors have been considered in prior disciplinary cases as mitigating factors if there is sufficient evidence in support of a recognized disability or handicap that caused or contributed to the misconduct in question. Bright v.Kunkle (1997), 2 P.L.R. 481 (Ont. Bd. Inq.), Marsden and Metropolitan Police (1994), 2 O.P.R. 974 (O.C.C.P.S.) and Reilly supra. He submitted that in this case, there is no evidence that Constable Martin had a similar handicap which caused or contributed to his misconduct. Mr. Amyot referenced page 3 of the Hearing Officer’s decision wherein he stated: “I believe that it is clear to me, through the evidence presented from all the witnesses, particularly Constable Martin, that the extent of the injuries were grossly
exaggerated on the dates in question, and corroborated by the video surveillance.”
Mr. Amyot rejected the Appellant’s claim that the Hearing Officer only paid lip service to the impact that dismissal would have on Constable Martin and his family. At page 8, the Hearing Officer clearly stated that he understood the implications of the penalty disposition.
The Hearing Officer acknowledged there were no identical cases on point in the policing context, the cases presented by Counsel were instructive for disposition purposes. The Respondent argues that the Hearing Officer’s decision on penalty was consistent with other cases with significantly similar details. Mr. Amyot called our attention to Delano in which the Commission upheld a penalty of dismissal where an officer was found guilty of theft and deceit. According to Mr. Amyot, the Delano and Martin cases are similar in many ways. Both officers have long service records without any prior discipline and both were convicted of deceit. Just as Sergeant Delano was convicted of theft, Constable Martin’s conviction of feigning injury to evade duty was a form of theft as well, in this case, the theft of time. The Respondent pointed out that in each case the offences occurred over a period of time and both involved efforts by the officers to hide their misconduct. The Respondent argued that the penalty assessed against Constable Martin was consistent with that assessed to Sergeant Delano.
The Respondent further argued that there were significant inconsistencies between Constable Martin’s case and the other Service cases submitted by the Appellant. None of those cases dealt with feigning injury or illness to evade duty and deceit. All the other cases involved single instances of misconduct. In each case the officers pled guilty to their charges and, unlike Constable Martin, they all accepted responsibility for their actions.
Finally, none of the decisions contained findings of lack of credibility of the officers. On the other hand, Constable Martin’s credibility was so destroyed that dismissal was warranted and reasonable.
With respect to the Appellant’s reliance on the unreported case of Sergeant Rettig, the Respondent noted that his misconduct resulted from a singular incident and not from a series of deceptive events over a period of time. As well, Sergeant Rettig had pled guilty and accepted responsibility for his actions.
The Respondent argued that, unlike the four private sector arbitration decisions submitted, the issue here was not whether dismissal is automatic in these situations, but rather, is the penalty within the range of penalties for similar misconduct in other police and labour and employment disciplinary decisions.
Finally, Mr. Amyot asserted that the arbitration cases are the exceptions to the
current state of arbitral jurisprudence which suggests that a breach of trust similar to Constable Martin’s misconduct warrants dismissal. The Respondent presented, on page 50 of his Factum, a list of 17 cases where the arbitrator upheld dismissal where the employer had been deceived by his or her employee in order to receive sick leave or workers’ compensation benefits.
Counsel for the Respondent drew our attention to Canadian Labour Arbitration by David Brown and David Beatty (Fourth Edition, Aurora, Canada Law Book, 2008) pages 7-63 wherein is found the following statements:
Falsifying production and attendance records is regarded by arbitrators as equivalent to theft. Both entail claims for compensation for which no right can be established. They amount to “stealing time” for which the employer has paid, for nothing in return. Similarly, submitting false expense and medical claims have been dealt with as attempts to defraud. Falsifying attendance, employment or medical records for the purpose of claiming worker’s compensation or welfare have been treated as disciplinable offences as well.
Like many of the early cases dealing with theft, in the beginning arbitrators routinely affirmed the discharge of employees who falsified employment records. Over the years, however, arbitrators have come to analyze these cases as a form of theft, and, where there are mitigating circumstances such as a long and blameless employment record, or personal problems, or some ambiguity or flexibility in how attendance is kept, lighter sanctions are typically regarded as more appropriate.
However, while arbitrators have come to reject the rule that such misconduct automatically warrants discharge, where there are no sufficient mitigating factors and where they are able to satisfy the burden of proof, employers have been found to have just cause to terminate the employment of people who engage in such misconduct.
Mr. Amyot concluded that the dismissal of Constable Martin was reasonable and within the range of penalties appropriate to the facts of this case based upon all of the factors considered by the Hearing Officer.
The Respondent dismissed Mr. Hewitt’s contention that the Service erred by not applying the principles of progressive discipline in this case when “red flags” were raised over its concerns about the validity of Constable Martin’s sick leave. Mr. Amyot submitted the Appellant misconstrued the concept of progressive discipline by suggesting that it was mandatory. He asserted that the Service was
not obliged to disclose that it was conducting an investigation of suspected wrongdoing. Further, he argued that it is well established, in both police and labour and employment decisions, that single acts of misconduct can warrant dismissal.
Mr. Amyot rejected categorically Mr. Hewitt’s argument that the Hearing Officer equated the conduct of Constable Williams. The Hearing Officer referred to Williams appropriately only to identify the factors to be considered when determining penalty and also within the context of considering the possibility of rehabilitation of an officer.
The Respondent concluded that the Hearing Officer’s decision is reasonable, that he fairly and impartially applied the correct sentencing principles when imposing the penalty of dismissal. No manifest error in principle was committed by the Hearing Officer and the appeal should be dismissed.
Decision:
The issue in this Appeal, as expressed by both the Appellant and Respondent, is: Did the Hearing Officer fairly and impartially consider and apply the appropriate disposition factors when assessing the penalty of dismissal in this case? Both the Appellant and the Respondent advised that there does not appear to be any reported police disciplinary cases dealing with the factual circumstances and disposition issues identical to the present case.
The panel has reviewed all of the documentation presented, both at the original hearing and on this Appeal, and has considered the submissions made by the parties. The documentation includes approximately 100 exhibits filed, in excess of 2500 pages of testimony involving more than a dozen witnesses, videotape evidence as well as the factums and voluminous briefs of authorities submitted by the parties.
The Commission has, on many prior occasions, expressed its role to be adopted in considering appeals from the decisions of disciplinary tribunals.
In Wildeboer and the Toronto Police Service (November 7, 2006, O.C.C.P.S.) at page 7 the Commission stated:
When evaluating or assessing a penalty, the role of the Commission is clear. It is not to second guess the decision of the Hearing Officer. It is not to substitute our opinion for that of the Hearing Officer. Rather, it is to assess whether or not the Hearing Officer applied the correct principles and imposed a penalty that is consistent with those handed down in similar cases.
The principles to be applied by hearing officers when considering penalty have also been described by the Commission and are well established. As noted in Carson and Pembroke Police Service (March 9, 2006, O.C.C.P.S.) at pages 14 and 15, the Commission stated:
The factors to be taken into account when assessing a suitable penalty are well established. In Williams and Ontario Provincial Police this Commission identified three key elements. They include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police service that would occur if the officer remained on the force.
Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach. Other factors can be relevant, either mitigating or aggravating a penalty, depending on the conduct in question. These include the officer’s employment history and experience, recognition of the seriousness of the transgression and handicap or other relevant personal considerations.
In addition, when imposing a penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.
Our function in a disciplinary appeal is not to second guess the hearing officer or substitute our own opinion. Rather, it is to assess whether or not the hearing officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is a manifest error in principle or the proper factors are ignored, we may vary the disposition. This is not lightly done.
Further, the Commission has adopted the reasoning of the Divisional Court in Galassi and Hamilton (City) Police Service [2005] O.J. No. 2301 (Ont. Div. Ct.), at page 19:
In reviewing the reasons of a lay tribunal, the task of this Court is not to be overly critical of the language used, nor is it to focus on mistakes that do not affect the decision as a whole, Re Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2nd) 1, (Ont. C.A.).This approach must be kept in mind when the reasons of the Hearing Officer are examined, as he is not legally trained.
Similarly, only in exceptional cases where the reasoning is evidently wrong, contains an error or cannot be reasonably accepted, will the Commission interfere with the conclusions made by the Hearing Officer. Buckle and Ontario Provincial Police, supra.
In Bright v. Konkle the Board of Inquiry relied on the judgment of the Supreme Court of Canada in R. v. Shropshire 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, in which the Court stated:
An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of the sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the Court of Appeal is convinced it is not fit. That is to say, it has found the sentence to be clearly unreasonable.
Bearing in mind those established principles, how do they apply to the facts of this case?
Constable Martin is a 47 year old police officer who joined the service in 1981. Until the events giving rise to these disciplinary proceedings, he had an unblemished policing career. He was a productive and skilled traffic enforcement and accident reconstruction officer. There is no dispute that on or about June 28,
2000, Constable Martin was seriously injured while operating his motorcycle on duty. He sustained injuries including whiplash, right shoulder and rotator cuff strain, low back, left wrist and knee injuries. There is also no dispute that Constable Martin spent approximately 3 or 4 months recuperating from this accident, following which he returned to work.
Some time later, he applied for WSIB benefits, reporting difficulty in carrying out his work tasks because of recurring pain. As a result of discussions with his employer, Constable Martin was placed on modified duties in the Collision Reporting Centre of the Service.
There also does not appear to be a dispute between the Appellant and the Respondent that following his placement in modified duties at the Collision Reporting Centre, Constable Martin booked himself off duty, indicating re-injury to his back. He applied for WSIB benefits on several occasions and received financial compensation.
His periodic absences from work continued over several years. In 2005, the Service became concerned about the pattern of sick leave that seemed to occur before or after his scheduled vacations. Once the pattern of absenteeism was documented, the employer’s concern increased. The Service attempted on numerous occasions to accommodate Constable Martin’s physical limitations by modifying his duties and work station, however, the pattern of sporadic attendance and extended absences continued.
The Service retained a private investigation firm. They conducted surveillance and recorded videotapes of his activities over a period of time. Reports and recordings were submitted to the Service that appeared to confirm the officer was neglecting his official duties by feigning or exaggerating his sickness or injury.
On or about May 30, 2006, following conversations between the officer and staff of Human Resources, it was determined that he was being less than honest in his description of his limitations. His off-duty activities contradicted his reported disability. For example, when questioned by his supervisor about an absence, he responded he had to attend an appointment with his chiropractor; however, when his reason was checked, the chiropractor’s office verified the officer was a no- show for the appointment.
Constable Martin’s position, throughout this time, was that he was legitimately suffering from the effects of his on-duty injuries and was unable to carry out his modified work duties. He had regular appointments with a chiropractor and a physician, both of whom supported his position that he could not work during the times he was absent.
Several applications submitted for WSIB benefits were supported by medical reports from his health care providers. However, having reviewed the investigator’s reports and the surveillance videotapes, the Service concluded that Constable Martin had not been forthright with his medical caregivers about the extent of his ongoing injuries. They forwarded the information to WSIB in the context of the officer’s application for continued loss of economic benefits.
A mediation conducted by the WSIB on or about June 16, 2006 resulted in the Constable Martin’s signed agreement to return to work June 19, 2006, gradually increasing his hours at work over the following seven weeks. This agreement was subsequently abrogated when the Constable Martin reported that he had re- injured his back while conducting a vehicle inspection at the CRC on or about July 6, 2006. He booked off on sick leave on or about July 12, 2006 and remained off work until September 25, 2006 when he began a prescheduled vacation until October 13, 2006.
On July 14, 2006, surveillance continued. Constable Martin was observed “pushing a large shopping cart…full of items… leaning to the right.. on ten separate occasions, leaning forward over the shopping cart, removing an item, turning to the right, leaning into the trunk area… and placing the item within the trunk…” as well as unloading the items from his car to his residence.5
The Service took the position that the officer had, on a number of previous occasions, arranged his vacation schedule to correspond with the end of his sick
leave absences. The pattern appeared to be ongoing. Upon Constable Martin’s return from his vacation on October 13, 2006, the Service suspended him with pay.
Throughout the course of events and at the disciplinary hearing, Constable Martin maintained that he was legitimately suffering from the injuries sustained in the 2000 motorcycle accident. He denied feigning or exaggerating his injuries to evade duty. He also denied deceiving the Service in terms of his physical abilities. He did, however, have difficulty explaining incidents where he had declared himself too disabled to work for an hour a day, but, for example, could travel on fishing trips or “drive approximately 140 kilometres, make six stops, getting in and out of his car 12 times, spending two hours… inside the nursing home, spending an hour… at the restaurant.”
In his decision, the Hearing Officer states that: “a focal point in this hearing is one of credibility”. In his findings, issued, both with respect to Counts # 1 and 4, the Hearing Officer clearly determined that he did not find Constable Martin to be a credible witness.
The Hearing Officer correctly identified, in our opinion, the question that had to be foremost in his mind when considering the evidence which he expressed as follows:
The question that must be answered from the evidence elicited to date is whether Constable Martin is so limited in his movements, that it renders him incapable of working the modified hours afforded him by the Windsor Police Service. 6
In his Reasons for Decision, the Hearing Officer made the following relevant findings regarding Count #1:
the officer incurred back and knee injuries resulting from the motorcycle accident in 2000 and will continue to have back issues for the rest of his life;
the officer was an excellent and hard working member of the
Service prior to sustaining his work related injuries;
the officer’s life and work habits changed after the accident;
when testifying in chief, the officer appeared to be forthright with his answers, however, in cross examination, his answers became self- serving and less than forthright and he appeared to select the answer that best suited the issue at hand and was not always
truthful;
the officer was unable to provide an explanation when faced with contradictory documentation regarding attendances at his health care practitioners, and the medical practitioners gave conflicting evidence regarding the injuries and the physical disabilities of the officer;
the officer was evasive on numerous medical documents and
Worker’s Compensation forms;
medical documentation and Constable Martin’s wishes were not in sync and it appeared that Constable Martin was the controlling opinion on whether to return to work;
there was no reason to disbelieve the evidence of a citizen regarding her testimony which directly contradicted the evidence of the officer on the degree of the bending motion that was performed by the officer during the vehicle inspection at the CRC;
the surveillance video of the officer’s attendance at Costco and at the 401 Truck Centre was inconsistent with the evidence of the officer;
only when confronted with the videotape evidence did the officer admit that he might have been able to work on those days in May and July, 2006 that he took off on sick leave but took the position that he could not without his doctor’s approval;
found difficulty with the officer’s answer regarding his ability to return to work based upon his doctor’s approval and it appeared that the officer was making the decisions when to return to work;
the medical practitioners were unable to explain the degree of motion exhibited by the officer when they saw the videotapes which were inconsistent with their prior medical notes;
found that the surveillance evidence and videotapes received at the hearing, as limited as they were in regards to days captured, very telling and conclusive in this case and while it would have been helpful to have had more surveillance covering a larger span of time, from what he observed that was captured, this evidence placed Constable Martin in a very telling and damaging situation; and
the wavering answers of Constable Martin to the many questions asked of him left no other conclusion than the officer was less than credible on all the critical issues and self-serving to say the least.
These factors, plus the evidence of Dr. Joseph and Dr. Zarenbelny who treated Constable Martin regularly, and were left surprised by watching the video, caused the Hearing Officer to believe that Constable Martin truly exaggerated the extent of his injuries of June 28, 2000.
With regard to Count #4, the Hearing Officer made the following additional findings:
Constable Martin stated in his testimony in response to Counsel about his voice mail message on May 30, 2006, that he would have certainly raised eyebrows with the Human Resources Section as well as the Service, if he had acknowledged that he had been in Belle River, Ontario picking up a rototiller or, in fact, at home rototilling in his garden. Instead of telling the truth, he advised Human Resources that he was outside with his dogs;
the surveillance conducted on May 30, 2006, at 0957 hours unequivocally places Constable Martin at the Home Hardware Store in Belle River, Ontario at precisely the same time as Human Resources was attempting to reach him by telephone;
found from the evidence presented by Constable Martin, that the only defence available to this deceit charge and which the officer wanted the Hearing Officer to believe, was that he did not deceive the Service because he truly had the dogs with him in the truck. The only time this information is produced is when Constable Martin is pressed by Counsel to explain the e-mail exchanges;
found that he did not accept the evidence of Constable Martin on this charge taking into account the totality of the evidence;
that Constable Martin was deliberate in his actions and misled the Windsor Police Service with his response to his whereabouts and the actions performed on May 30, 2006. Constable Martin admitted to this act and he was afraid it would cause suspicion with his sick claim; and
found from the evidence received at the hearing, that Constable Martin deliberately and purposefully for his own gain, misled the Service and inaccurately reported his whereabouts pertaining to his
official duties.
Having viewed the videotapes and photographs that clearly contradict Constable Martin’s ongoing self-reporting of severe, chronic physical limitations, we conclude there is ample evidence to support the findings made by the Hearing Officer on both Counts.
Further, since he heard the extensive viva voce testimony and saw the video and photographic surveillance evidence, he was best positioned to assess their credibility and to make findings. In addition, he attended the CRC to examine the work location, equipment and assignments of accommodated officers. The Hearing Officer was entitled to characterize the Appellant’s answers to the Prosecutor as “self-serving and… less than forthright”. Constable Martin was found by the Hearing Officer to be “not always truthful” in attempting to explain documentation that contradicted his version of events. He found him “less than honest” explaining why certain of his duty notebooks were missing.
In reviewing the Reasons for Decision on Penalty, we conclude that the Hearing Officer considered, analyzed and weighed the appropriate factors as set forth in previous cases. In his analysis, the Hearing Officer reviewed the applicable mitigating and aggravating factors.
In terms of the nature and seriousness of the misconduct, the Appellant has submitted that the misconduct of Constable Martin ought not to be considered as serious as that of other officers in the Service and in other forces across the Province of Ontario who committed somewhat similar types of offences. We cannot agree.
It is clear from the evidence that Constable Martin absented himself from duty on numerous occasions when, by his own admission, he could have carried out that duty.7 Not only did he deprive his employer of his services, requiring the employer to find replacement personnel, but, while receiving full payment of his regular wages on sick leave, he applied for WSIB benefits during the time it was found that he feigned his injuries to evade such duty. Further, when questioned regarding his activities, he deceived the Service in his responses.
The cases put forward by the Appellant in support of his position can be distinguished from the current case based on their factual circumstances. In most, there was a single act of misconduct. In others, there were other unique factors. It is also apparent to us that Constable Martin’s misconduct was committed over an extended period of time, was part of a pattern and not a singular act.
Not only did Constable Martin mislead his employer, he deceived his physician
and chiropractor. Diagnostic tests did not identify any significant causative factors for his reported inability to work due to pain and re-aggravation of the June 2000 injuries. To a large extent, they relied on his statements about the extent of his physical limitations. When questioned about the apparent disparity between his physical abilities as shown in surveillance videos and his reports of severe and persistent physical limitations, they were at a loss for a credible clinical explanation.
Constable Martin betrayed his oath of office. That breach occurred repeatedly, deliberately and over an extended period of time. His actions were captured on videotape and photographs. We agree that the conduct of Constable Martin constituted a “theft of time” from employer. This misconduct must be considered as deceptive and aberrant behaviour of a serious nature. Buckle, Walker and Peel Regional Police Service (2000), 3 O.P.R. 1425 (O.C.C.P.S.), Delano and Hassan
The Hearing Officer described Constable Martin’s behaviour as a betrayal of the community and the Service. We agree. He exaggerated the extent of his post- accident limitations in order to evade his duties. When confronted with contradictory evidence on his physical abilities, Constable Martin admitted that he committed a breach of trust as an employee of the Service. Such behaviour is akin to theft.
Both the Appellant and the Respondent urged the Commission to review and apply the principles established in civilian labour and employment cases. The Commission has already recognized and accepted this principle. In Hrycyschyn and Ontario Provincial Police supra. the Commission stated at page 957:
This is a difficult case in which to assess an appropriate penalty because, so far as we can find, there are no previous cases which we might use as a guide …
In our opinion, the proper approach to take is to estimate the penalty that might be paid by a civilian with no previous misconduct on his or her record and then to add to that an increase in the penalty because of the fact that this person is a police officer …
In our opinion, the Hearing Officer was correct in finding that Constable Martin’s pattern of deceptive behaviour constitutes serious misconduct, particularly since it appears to have been motivated by personal advantage.
The Hearing Officer appropriately reviewed the factor of recognition of the seriousness of the misconduct. He had this to say:
I am under the firm belief that Constable Martin does not fully understand
how his actions have affected himself and the organization to this day.
I have not been advised of any acknowledgement that Constable Martin expressed any remorse or apology for these indiscretions.
He further stated:
The evidence that was presented to me over the course of this hearing, painted a picture of an officer that would say, or act in such a way that best presented the most effective answer, that suited the best interest of Constable Martin and it did not matter whether it was the truth.
The consistency throughout this hearing in that regard leaves one with a serious concern as to whether Constable Martin could be a productive member of the Service again. 8
In our opinion, the Hearing Officer was entitled to conclude that Constable Martin did not recognize the seriousness of his misconduct in the circumstances. The lack of any apology or expression of remorse is one element which the Hearing Officer is entitled to consider when analyzing whether or not an officer truly recognizes the seriousness of his actions.
The Hearing Officer acknowledged Constable Martin’s unblemished employment history, his love of policing and apparent skills in traffic enforcement and accident reconstruction. He acknowledged the many letters of appreciation and commendation received by Constable Martin throughout his career and clearly considered all this information in determining the penalty. He also acknowledged that the officer’s life and work changed dramatically after the on-duty motorcycle accident. His analysis of these mitigating penalty factors was appropriate.
In his Reasons for Decision on Penalty, the Hearing Officer reiterated the well- established principle that the standard of conduct for all police officers is, by the nature of the profession, higher than what is expected of members of the public.
It is obvious from the reasons provided that this was an important consideration as the Hearing Officer weighed all of the factors regarding possible penalty. He stated:
It is important to consider the public interest. It is common knowledge that the public hold the police in a position of high trust and accountability. Constable Martin was found guilty of Neglect of Duty and Deceit.
It is therefore extremely important that the Windsor Police Service
demonstrate that members will be held to that standard. The Hearing Officer continued:
Constable Martin betrayed the trust of the community and the Windsor
Police Service.
Given this betrayal to the community and the Service, which is fundamental to his effectiveness as a police officer with the Windsor Police Service, it further tarnishes the image of the active members who wear the uniform of the Windsor Police Service and others who don the police uniform throughout Ontario. The nature of the behaviour is such that without significant mitigating circumstances, his dismissal would be the most appropriate cause (sic) of action. 9
The Hearing Officer appropriately considered the need for both specific and general deterrence. He determined that the penalty must demonstrate to members of the policing community that this type of behaviour would not be tolerated and would “preclude any significant leniency in dealing with matters of this nature and ought to leave no doubt as to the probable consequences of misconduct in this regard”. 10 His analysis appropriately addressed specific and general deterrence. There was no error.
We have reviewed the Hearing Officer’s consideration of the Appellant’s ability to reform or be rehabilitated to the extent that he could remain as a member of the Service. It is evident that the Hearing Officer considered Constable Martin’s actions to be clearly unacceptable, especially in the policing context. Referencing Williams, the Hearing Officer stated: “These actions, afforded the opportunity of reasoning, indicate a serious lack of moral and judgmental qualities required of a police officer. It is doubtful that an opportunity for rehabilitation would correct what appear to be a fundamental character flaw.”11
Based on the evidence presented to him, the Hearing Officer was entitled to draw the conclusion that Constable Martin had not accepted responsibility for his conduct. He stated:
As I have stated earlier in this disposition, Constable Martin has to accept that his actions, not anyone else’s is the cause of his difficulty.
I have not received any testimony of character in written or oral testimony from peers or others that Constable Martin possesses the necessary tools
to continue as a police officer with this organization. If he can be rehabilitated, he must accept his actions. I am not sure he has accepted his actions in its entirety. 12
Further, the Hearing Officer was unable to accept the Appellant’s submission that he should be permitted to return to the CRC as part of his rehabilitation. The Hearing Officer rightly questioned that proposal. The CRC was the location where Constable Martin was employed in a modified position at the time of his misconduct. He had agreed to such modified duties with reduced hours in a position which was deemed not to be overly taxing on his physical limitations. He chose not to comply with this plan to which he was a signatory. In view of the absence of evidence that the officer would now report and work the modified duties as assigned, the Hearing Officer rejected this proposal.
The Hearing Officer also noted that, while the Service had attempted to accommodate Constable Martin’s physical limitations, that effort was not reciprocated. In fact, the officer was not even demonstrating a willingness to work one hour per day.
In our opinion, the Hearing Officer was entitled to reach the conclusion he did on this sentencing factor.
The Hearing Officer went on to consider damage to the reputation to the Service. He was left with a firm conviction that if Constable Martin remained as a member of the Service, damage to the reputation of that Service would be high.
There is no doubt, that should a member of the public be advised of the full extent Constable Martin’s deceptions, the reputation of the Service and, by implication, the integrity of its officers, who have committed no misconduct, could be called into question.
The Hearing Officer noted the fact that the disciplinary proceedings were widely publicized and therefore known to the community. In our view, the Hearing Officer was entitled to consider that information as very relevant in weighing the appropriate penalty to impose and considering the context of the Reasons as a whole, the Hearing Officer was entitled to reach the conclusions he did relating to this factor.
We cannot agree with Counsel for the Appellant that the Hearing Officer relied simply upon the fact that the hearing was widely publicized as the sole consideration for the basis of the decision. The misconduct of the officer was the basis for drawing his conclusions, not simply the media coverage. Previous Commission decisions have held that public media coverage of misconduct of an officer is an appropriate consideration when assessing the extent of damage to
the reputation of a police service. White and Reid and Windsor Police Service, O.C.C.P.S., Nov. 10, 2000.
The Appellant submitted that other members of the Service had committed misconduct of a more serious nature but were permitted to continue although their credibility would be an issue. The Appellant had further submitted that, if the officer remained at the CRC, there would be minimal likelihood of involvement in investigations requiring a Court attendance.
In our view, these submissions are not sustainable. Most of the prior cases referenced by Counsel for the Appellant involved singular acts of misconduct. Constable Martin’s misconduct occurred over an extended period of time and involved serious economic consequences to the employer. Further, from the evidence, Constable Martin was involved in investigations of accident collisions and, under such circumstances, would likely be required to attend Court and give testimony. By his own actions, he repeatedly proved himself to be untrustworthy.
The Appellant submitted that the Hearing Officer failed to consider Constable Martin’s physical injuries to be a significant mitigating factor in his disposition. We do not agree. Throughout the Reasons for Decision, the Hearing Officer makes reference to the serious physical injuries sustained by Constable Martin in the motorcycle accident in 2000. He references the medical evidence produced at the hearing regarding the extent of the injuries and the likelihood that Constable Martin will have problems related to his back injuries for the rest of his life. He went on to state:
What is in question is the degree of that pain, and does it render him incapable to work as little as one hour a day which the Service has offered, when we see Martin engaged in other physical actions which leave his Doctors without explanation of his feats and flexibility.
I have given this serious consideration in determining an appropriate disposition.13
Again, we take the view that the Hearing Officer has properly weighed those facts.
In his Reasons, the Hearing Officer also considered the effect of the possible disposition upon Constable Martin and his family. Obviously, dismissal is the most severe penalty that may be imposed under the Act. He commented that demotion would also have a significant impact. The Appellant submitted that the Hearing Officer failed to take into consideration the difficulty that might result from Constable Martin being dismissed in terms of finding new employment. While this is not expressly stated in the Decision, it is implicit in the comments of
the Hearing Officer when he states that dismissal will have a significant impact and that the Appellant will suffer from the penalty. He has given the situation serious consideration. In our opinion, the Reasons need not contain every specific detail of the factors but must be reviewed as a whole and in that context, this factor was reasonably considered.
The Appellant further submitted that the Hearing Officer’s statements regarding management approach to this misconduct displayed an example of his mind being closed to any other possibly discipline option other than dismissal.
As a Panel, we were concerned about the absence of consideration of progressive discipline. That being said, we do not agree that the Hearing Officer’s disposition is unreasonable. In view of the findings related to the pattern of deceptive behaviour exhibited by Constable Martin, his misconduct is at the higher end of the scale of seriousness. The events took place over an extended period of time. The Service had to retain an external investigation company to verify Constable Martin’s physical status. Videotape evidence clearly disclosed that he deliberately concealed the truth of his off–duty physical activities until confronted with the irrefutable proof. Health care professionals, WSIB and the Service all trusted Constable Martin to be truthful. He deceived them all. The Hearing Officer noted the “deliberate lie” to Human Resources of the Service and observed that “honesty, integrity and accountability are characteristics a police officer must possess to conduct his work”.
Bearing in mind the factual circumstances, the Hearing Officer was entitled to conclude that Constable Martin had “Lost these characteristics”. He concluded there was very little, if any, flexibility in the manner in which management of the Service could approach this type of misconduct.
In considering all disposition factors, the Hearing Officer was entitled to give greater weight to the seriousness of the type of misconduct over a consideration of the possible management approach of progressive discipline.
The Appellant submitted that the Hearing Officer failed to take into account the penalties imposed by the Service and other police forces for conduct similar to or more reprehensible and damaging than the conduct of Constable Martin. Some
46 cases were cited by Counsel for both parties at the hearing. The Hearing Officer clearly states in his Reasons that he considered all of those cases and found that, while they did not contain factual circumstances on point, they were instructive for disposition consideration. The Hearing Officer noted the case of Schofield supra.
In analyzing this penalty factor, he confirmed that he dealt with the two charges on Counts #1 and 4 as one for penalty purposes.
He reviewed the employment history of the officer, the steps that were taken to attempt to accommodate his physical limitations in the employment context and the actions of the officer in carrying out strenuous physical activities which contradicted the position he presented to his employer, the WSIB, his chiropractor and physician.
In dealing with the issue of consistency in penalty, the Hearing Officer was clearly concerned about the seriousness of the misconduct:
A hurdle that I cannot seem to cross is the deliberate lie to the Human Resources section of the Service. There was no need to lie. As I have stated earlier, Constable Martin communicated his evidence for the interest of himself and for no other reason.
Honesty, integrity and accountability are characteristics that a police officer must possess to conduct his work. Without these, you make it near impossible or just plain impossible to do your job.
Constable Martin through this hearing and the actions displayed resulting to these charges has lost these characteristics.14
The Hearing Officer also referred to the fact that no character evidence was called at the hearing before him to assist in making a disposition.
As this Panel has determined, there were ample opportunities for the Appellant to present such evidence during the disciplinary hearing and he and his legal counsel chose not to do so.
The Hearing Officer stated:
Striving for consistency in a disposition is a balancing act, involving a number of considerations that speak to the specifics of the misconduct, the environment in which the misconduct occurred, the action or inaction of the management of the Service and other issues.15
We agree with this statement.
The Commission has determined that a dismissal of an officer is the most serious punishment that can be imposed and must be reserved for those cases in which the conduct so reprehensible that the officer is no longer useful to the Service. Gregg and Midland Police Service
Mr. Hewitt, on behalf of the Appellant, argues that demotion is the most consistent penalty to apply in the circumstances of this case bearing in mind the myriad of decisions in other police service cases dealing with misconduct of such seriousness. Mr. Amyot on the other hand argues that dismissal is the appropriate penalty based upon other previously decided cases in the Service as well as other police forces.
In our view, the penalty is within the range of dispositions applied in similar types of cases. Delano
Having reviewed the Penalty Decision with Reasons of the Hearing Officer, we are of the opinion that he has correctly applied, in a fair and impartial manner, the principles of sentencing as set forth in Williams. He has appropriately weighed all of those factors and determined which factors ought to receive more weight in the specific factual circumstances of this case.
We can find no manifest error in principle committed by the Hearing Officer. The decision is reasonable and correct.
The appeal is therefore dismissed.
DATED AT TORONTO THIS 17TH DAY OF AUGUST, 2009.
Roy B. Conacher Garth Goodhew Hyacinthe Miller
Member Member Member
Footnotes
- Transcript of Proceedings, page 31
- Transcript of Proceedings, page 69
- Transcript of Proceedings, page 51
- Exhibit 61, page 38
- ACI Activity Report, Friday, July 14, 2006,1206-1245 hours (video and photos)
- Decision dated August 15, 2008, page 5
- Record of proceedings, page 1399 of 2658
- Penalty Decision, October 20, 2008 at page 5
- Ibid., pages 4 and 5
- Ibid., page 6
- Ibid, page 8
- Ibid., page 9
- Ibid., page 10