OCPC #10-06
ONTARIO CIVILIAN POLICE COMMISSION
REASONS FOR DECISION
Citation: Chan v. Toronto Police Service, 2010 ONCPC 6
SERGEANT GREGORY CHAN
Appellant
TORONTO POLICE SERVICE
Respondent
Presiding Members:
Dave Edwards, Member
Hyacinthe Miller, Member
Appearances:
Peter Brauti, Counsel for the Appellant
Ian Solomon, Counsel for the Respondent
Hearing Date: Wednesday, October 27, 2010
Sergeant Chan appeals the penalty of reduction in rank from sergeant to first-class constable for a minimum of one year imposed on him on February 10, 2010 by Staff Superintendent Jane Wilcox (“Hearing Officer”), following findings of guilt for three counts of discreditable conduct, contrary to section 2(1)(a)(xi) of Ontario Regulation 123/98 (the “Code”).
Background:
Sergeant Chan joined the Toronto Police Service (“Service”) as a cadet in 1990. Following graduation from the Ontario Police College, he was deployed to 42 Division. In 1998 he joined the Emergency Task Force (“ETF”), where he spent a total of five years.
In 2003 the Appellant was promoted to the rank of sergeant and transferred to 41 Division. In January 2006, Sergeant Chan returned to the ETF as Training Sergeant. In May 2007 he was placed in charge of the ETF Gym/Fitness Fund bank account (“account”).
In early April of 2008 a discrepancy in the balance of the account was identified. An investigation was undertaken. Sergeant Chan was confronted. On April 16, 2008, he repaid certain amounts into the account. He apologized to his staff inspector.
In May 2008, Sergeant Chan sought professional help from a psychologist. He complained of depression, anxiety and panic attacks.
On September 29, 2008 Sergeant Chan was charged with three counts of discreditable conduct relating to theft of funds from the account and one count of neglect of duty, for an April 13, 2008 incident in which he was alleged to have used a Service vehicle for personal use, while off duty.
The Hearing:
On July 22, 2009, an Agreed Statement of Facts was submitted to the Hearing Officer. It read:
Sergeant Greg CHAN was transferred to the Emergency Task Force on January 2nd, 2006 and undertook the Training Sergeant responsibilities for the Unit in May 2007.
Included in these responsibilities was the administration of the Emergency Task Force Gym/ Fitness fund bank account. The funds for this account were maintained through the yearly collection from the Unit members for the purposes of purchasing fitness equipment for the Unit. Sergeant Chan had co-signatory authority on the account which was held at the Toronto Police Credit Union.
In September 2007 Sergeant CHAN separated from his wife and began to experience financial difficulties.
At this point, Sergeant CHAN, in addition to signing his own signature, had the co-signator sign a cheque drawn on the Gym Fitness Fund bank account in the amount of $919.00 to purchase fitness equipment.
The cheque dated September 25th, 2007, was made out to ‘Greg Chan’ and on September 27th, 2007 Sergeant CHAN deposited the cheque into his personal CIBC bank account.
The funds were used by Sergeant CHAN to pay personal bills and the fitness equipment was never purchased.
In October 2007, Sergeant CHAN, again, in addition to signing his own signature, had the co-signator sign a cheque drawn on the Gym/Fitness Fund bank account in the amount of $1000.00 to purchase fitness equipment.
The cheque dated October 22nd, 2007 was made out to ‘Greg Chan’ and on October 23rd, 2007 Sergeant CHAN deposited the cheque into his personal CIBC bank account.
The funds were again used by Sergeant CHAN to pay personal bills and the fitness equipment was never purchased.
In January 2008 Sergeant CHAN signed both his signature and that of the co-signator on a cheque drawn on the Gym/Fitness Fund bank account in the amount of $900.00 to purchase fitness equipment.
The cheque, dated January 4th, 2008 was made out to ‘Greg Chan’ and on January 9th, 2008, Sergeant CHAN deposited the cheque into his personal CIBC bank account.
The funds remained in Sergeant CHAN’s personal bank account and the fitness equipment was never purchased.
Early in April 2008 a discrepancy in the balance of the Gym/Fitness Fund bank account was identified and as a result an investigation was commenced.
Between September 2007 and January 2008 Sergeant CHAN deposited three cheques in his personal CIBC bank accounts totalling $2,819.00, some of which was used to pay for personal bills and not for the purchase of fitness equipment.
On April 16, Sergeant Chan reimbursed the funds.
Sergeant Chan pled guilty to the three counts of discreditable conduct. The fourth charge of neglect of duty was withdrawn.
Following submissions, the Hearing Officer imposed a penalty of reduction in rank from sergeant to first-class constable for a minimum of one year. The Hearing Officer also ruled that “after one year, Officer Chan may be reinstated to the rank of Sergeant upon the recommendation of his Unit Commander”.
It is this penalty which Sergeant Chan appeals.
Appellant’s Position:
Mr. Brauti appeared for Sergeant Chan.
He submitted that the Commission has the jurisdiction to vary a penalty if it was unreasonable, amounted to an injustice or all relevant factors had not been fairly and impartially considered.
He noted that it is not our role to re-hear the evidence and argued that we should show deference except where the tribunal has committed an error. However, he asked us to afford a low level of deference in this case, because key issues were not properly considered.
In his factum, Mr. Brauti raised four grounds of appeal.
First, he argued that the Hearing Officer’s conclusion that “there was no effort at repayment” by Sergeant Chan represented a misapprehension of the evidence. He pointed to the testimony of Sergeant Chan that he had “hived off” a certain amount of money from each of his pay cheques. That, in Mr. Brauti’s view, constituted repayment effort.
He reminded us that the Prosecution did not challenge this assertion. He asked us to consider that Sergeant Chan took pre-emptive steps to replace the money and expressed remorse to everyone in his Unit prior to being interviewed by Professional Standards.
Second, he asserted that the Hearing Officer erroneously concluded that there was no evidence presented to the Tribunal of a medical diagnosis with a causal link to his personal circumstances that could be considered a handicap or disability.
Mr. Brauti submitted that the Appellant was not mentally well and thus in a vulnerable position. He drew our attention to the clinical note from psychologist, Dr. Rick Lindal, and Sergeant Chan’s testimony on this point.
He submitted that the Prosecution had an obligation to challenge any medical evidence that it did not accept. Browne v. Dunn (1893), 6 R. 27 (H.L.) He asserted, given the Prosecution’s failure to challenge this evidence, that we are entitled to substitute our own decision on penalty.
Third, he submitted that the Hearing Officer failed to adequately consider the Appellant’s personal circumstances. The Appellant testified concerning his dire financial situation and mental state. Both, in Mr. Brauti’s view, were significant contextual and mitigating factors that the Hearing Officer failed to properly take into account.
Fourth, Mr. Brauti argued that it is a fundamental principle that like cases should be treated alike. He asserted that the Hearing Officer failed to apply this principle given that demotion is at the high range of available penalties and should be reserved for extremely serious offences. He noted there were no precedent cases offered at trial that were sufficiently similar so as to be helpful.
In conclusion, he submitted that under the circumstances, there should not be a loss of rank. Rather, a more appropriate penalty for Sergeant Chan would be a forfeiture of 20 days’ pay.
Respondent’s Position:
Mr. Ian Solomon appeared for the Service.
He argued that the Hearing Officer’s penalty decision should be given great deference. He submitted that the Hearing Officer was cognizant of, weighed and appropriately dealt with all of the relevant sentencing factors and imposed a penalty within the range of reasonable outcomes.
In response to the grounds put forth by the Appellant, Mr. Solomon highlighted a number of factors used by the Hearing Officer in assessing the seriousness of Sergeant Chan’s misconduct.
The Hearing Officer observed that Sergeant Chan’s actions were an “egregious breach against his co-workers, the service and effectively the community”1. He occupied the position of supervisor, and must be held to a higher standard. He took money while he was responsible for mentoring and guiding subordinates. Quintieri and Toronto Police Service (October 29, 2001, O.C.C.P.S.)
The thefts involved three separate incidents in which cheques were written on the account and used for personal reasons over a four-month period of time. The Hearing Officer described his actions as “covert access to his colleagues’ money for purely personal purposes”.2
The Appellant could have corrected his behaviour after each misappropriation of funds, but did not.
The third cheque involved Sergeant Chan signing someone else’s name in order to access the funds.
There was no actual repayment by Sergeant Chan until after his responsibility for the missing funds was discovered.
Mr. Solomon characterized the Appellant’s argument concerning the Hearing Officer’s conclusion that “no effort at repayment” was made by Sergeant Chan as quibbling. He acknowledged that Sergeant Chan had indicated an intention to repay the money taken. However, the evidence established that the Appellant did not take any active steps to make repayment until confronted.
He pointed to the testimony of Sergeant Chan that he had sufficient resources to repay, but “did not have time to go to the bank”. The Hearing Officer gave this evidence the weight it deserved.
Mr. Solomon drew our attention to the wording of the offence of discreditable conduct (i.e. likely to bring discredit) and noted that public perception of the police would be negatively affected should Sergeant Chan’s misconduct become known.
He asserted that the Hearing Officer’s conclusion that there was no medical diagnosis to establish a causal link to a handicap or disability was appropriate.
He argued that diagnosing a major depressive disorder is normally subject to a multitude of criteria spelled out in the Diagnostic and Statistical Manual of Mental Disorders and not simply a self diagnosis as was the case here.
Mr. Solomon pointed out that Dr. Lindal did not make a clinical diagnosis and, although he made a general statement that “during desperate times the best of us may make poor judgments” this did not constitute medical evidence. Neither did the Appellant’s bald assertion in an undated “To Whom It May Concern” letter or his self-disclosure to Dr. Lindal that he was suffering from a major depression disorder.
Mr. Solomon submitted that Mr. Bruati’s argument about the lack of cross-examination by the Prosecution on these matters was a red herring. The bigger issue was the lack of causal connection between any diagnosis and Sergeant Chan’s actions.
He argued that the Hearing Officer considered the Appellant’s personal circumstances, noting that “there were certainly other options available to Sergeant Chan to meet his self imposed financial challenges, than the course of action he chose.”
Finally, Mr. Solomon drew our attention to several cases to demonstrate that the penalty assessed did fall within the reasonable range imposed in similar circumstances.
In conclusion, Mr. Solomon asserted that the appeal should be dismissed.
Supplementary Issue:
The Hearing Officer’s penalty provided that “after one year the officer may be reinstated to the rank of Sergeant upon the recommendation of his Unit Commander.”
During the course of oral argument, the question arose as to whether this was a proper wording for the penalty. Counsel were requested to provide written submissions on this point. They did so.
Mr. Brauti outlined the issues as follows:
a) Was the penalty imposed upon Sergeant Chan authorized by the Act?
b) Did the penalty constitute an unlawful delegation of power by the Hearing Officer?
He submitted that the penalty imposed upon Sergeant Chan by the Hearing Officer was illegal, and cannot stand.
Mr. Brauti argued that a hearing officer's powers are derived entirely from statute. In other words, a hearing officer does not have the authority to fashion a penalty that is not explicitly authorized by the Act.
The ‘additional’ penalties set out in section 85(7) of the Act only allow for reprimands, counselling, treatment, training, and/or mandatory participation in a specified program. He asserted that none of these options covered what was imposed in this case.
Mr. Brauti further argued that the Hearing Officer effectively delegated to another person her judicial power to impose a penalty and that this delegation was unlawful.
Rather than specifying a period of demotion with exactitude, as was required of her under the Act, the Hearing Officer only specified the minimum period of demotion. The resulting period of demotion would, in effect, be dependent upon the whims of a "unit commander”.
The unit commander is not a judicial or quasi-judicial official. Unlike the Hearing Officer, there was no requirement for the unit commander to comply with the principles of natural justice in determining the end date of Sergeant Chan's demotion. He or she is not cloaked with the authority (or the responsibilities) of a hearing officer under the Act.
Mr. Brauti referenced R. v. Shorten [1975] B.C.J. No.1 073, 29 CCC. (2d) 528 (B.C.C.A.) and Mullan, Administrative Law, (Toronto: Irwin Law, 2001) which addressed the principle of administrative law that delegatus non potest delegare: those to whom power is delegated cannot themselves further delegate that power. That common law principle does not constitute an absolute prohibition on sub-delegation, but is rather an operating presumption of administrative law.
He asked us to find that the penalty imposed on Sergeant Chan was illegal and to set it aside, instead, assessing a penalty of either forfeiture of 20 days pay or unconditional reduction in rank for one year.
Mr. Solomon submitted that the disposition as to penalty was authorized by the Act and was not an unlawful subdelegation of power.
He argued that subsection 85(1)(c) of the Act authorized a penalty of demotion with a minimum term and which specifies conditions which must be satisfied for the officer to be reinstated to his or her former rank. X v. Y (1994), 2 P.L.R. 285 (Ont. Bd. Inq.) and Kyle and York Region Police Service (March 11, 2003, O.C.C.P.S.)
He argued that the Hearing Officer had concluded that the Appellant was no longer suited to his former rank and therefore the demotion should be for a minimum of one year and thereafter the Appellant could advance through the ranks if he satisfied the normal promotion requirements.
Decision:
Sergeant Chan has appealed the penalty imposed on him by the Hearing Officer.
When hearing an appeal from a penalty the role of the Commission is clear. It is not to substitute our opinion for that of the hearing officer, even if we would have reached a different conclusion based on the evidence. Rather, it is to assess whether the hearing officer applied the correct dispositional principles in a fair and impartial manner.
The Supreme Court of Canada commented upon the standard of reasonableness in Dunsmuir v. New Brunswick [2008] S.C.J. No. 9 at para 47:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable rational solutions… In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
A penalty would be unreasonable if it failed to take into account all relevant factors, legal principles or would amount to an injustice. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Blackburn and Niagara Regional Police Service (September 17, 2003, O.C.C.P.S.)
The factors to be taken into account by a hearing officer when imposing a penalty are well established. There are three key elements to be considered. These include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police service.
There are other factors to be considered in light of particular misconduct. These include:
recognition of the seriousness of the misconduct;
employment record; and,
public interest in the administration of justice.
Additional relevant factors can include management’s approach to the misconduct in question, general or specific deterrence, and the need for consistency. Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.) and Schofield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.)
It is also important to keep in mind the comment of the Divisional Court in Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301 at paragraph 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.
The Appellant alleged that the Hearing Officer made four errors at law.
First, he asserted that the Hearing Officer misapprehended the evidence with respect to Sergeant Chan’s efforts at repayment of the stolen money. This argument is focused upon the Hearing Officer’s conclusion that: “Further, while Sergeant Chan testified that he had intended to reimburse the Gym Fitness Fund for the money he took, I note that there was no effort at repayment until after it was discovered that he was responsible for the missing money.”3
Sergeant Chan testified that he had all of the money on hand at his house and that he “had every full intentions of replenishing the money” and when he was asked by his Staff Inspector about the discrepancy, “advised him that I would get the money in Cobourg and… replenish the account, and which I did”.4
From the Hearing Officer’s summary of the evidence, she was aware of Sergeant Chan’s testimony. It is not our role to parse individual words of a lay tribunal but, we do not accept Mr. Bruati’s argument that the words “no effort at repayment” are clearly wrong or significantly removed from “no repayment”. In the context of this case and particularly the entire sentence in question, it is a reasonable interpretation of the word “repayment” to mean the transfer of the funds from Sergeant Chan’s control back to the Fund. This interpretation is consistent with the evidence.
Also, consistent with that interpretation, the Hearing Officer acknowledged repayment following the audit of the Fund: “To Sergeant Chan’s credit, upon his misconduct being discovered, he immediately reimbursed the ETF Gym Fitness Fund for the full amount he had taken…” 5
Based on our review of the record and a plain reading of testimony given by the Appellant, we agree that, until Sergeant Chan was confronted with the issue of missing funds, he took no steps that could be construed as actually replacing the $2,819 he had taken from the Fund and co-mingled in his personal bank account. We accept that Sergeant Chan may have intended to repay the monies; however, intention does not equate to the physical act of making restitution.
The Hearing Officer did not misapprehend this evidence.
Second, the Appellant alleged that the Hearing Officer erred by making the following finding:
… there was no evidence presented to the Tribunal of a medical diagnosis with a causal link to his personal circumstances that could be considered a handicap or a disability or indeed, of significant weight for the purpose of determining a penalty.6
This sentence is from the part of the Hearing Officer’s reasons examining possible mitigating factors.
In her decision the Hearing Officer noted a letter from Dr. Lindal submitted as an exhibit. That one and a half page correspondence reported that on five occasions Sergeant Chan attended his office for therapy starting in May of 2008 because “his personal life had been very stressful” as a result of marital and financial difficulties. The Doctor observed that “During desperate times the best of us may make poor judgments and Mr. Chan envisioned that
borrowing money from the gym fund would not be a very serious offence.”
Sergeant Chan’s stress was certainly unfortunate. His efforts to seek help commendable. That being said, the Hearing Officer’s determination that there was no evidence before her of a medical diagnosis that could be considered a mitigating disability was within the range of reasonable conclusions available to her based upon the record.
Third, the Appellant alleged that the Hearing Officer failed to give adequate consideration to the Appellant’s personal circumstances as a mitigating factor.
In her decision, the Hearing Officer outlined and analyzed the respective positions presented to her. She acknowledged that the Appellant, upon his misconduct being discovered, immediately repaid the funds, that he “expressed remorse and accepted responsibility from the outset”. He sought assistance “to improve his personal situation once his behaviour was brought to light and had since addressed those circumstances which were present during the course of his misconduct”. 7
She referred to positive performance appraisals and letters of support from his work colleagues, as well as the Appellant’s long and otherwise exemplary career as suggesting that his misconduct was “unusual and inconsistent”.
In contrast, she noted that the investigation into the missing funds “created an atmosphere of suspicion amongst his entire work group” and “provided a disturbing insight into his [Sergeant Chan’s] concept of ethical decision making at the time”. The fact that his misconduct was repeated, and that the third incident involved him signing the name of the account co-signatory was “further aggravating and perpetuating his misconduct”.
It was the Hearing Officer’s responsibility and obligation to assess the record, and to make conclusions with respect thereto, including a determination of the weight to be accorded to the evidence. We find that she did so fairly and without error.
Fourth, the Appellant argued that the Hearing Officer erred because she failed to treat like cases alike and had imposed a penalty outside the range of reasonable outcomes for similar kinds of misconduct.
This Commission in Detective Sergeant Jack Moore and York Regional Police Service (March 26, 2001, O.C.C.P.S.) stated at page 8:
… the misappropriation of goods or funds on the part of a police officer, even with a lengthy record of unblemished service can generate the penalty of loss of up to 20 days leave or time off and reduction in rank for up to one year.
This clearly suggests that demotion was a penalty within the range available to the Hearing Officer.
This is particularly so, given that not only was Sergeant Chan a member of an elite element of the Service, but also held a supervisory position within that group. He was entrusted with the money of his fellow officers. He not only stole from that account on three separate occasions, but the third time, he forged the signature of a fellow officer.
We note that the Prosecution asked for a penalty of six months demotion for count one of discreditable conduct, a twelve month demotion for count two and twenty-four months’ demotion for count three, to be served concurrently.
In Moore, a penalty of 20 days off was imposed for the first count of misconduct and a reduction in rank for one year was imposed for the second count.
We find that the Hearing Officer thoroughly considered the evidence, properly exercised her discretion, made findings supported by the evidence before her and imposed a penalty which could be considered to be at the low end of the range available for three serious acts of misconduct.
That brings us to the question of the wording of the penalty in the context of the Act.
The Hearing Officer concluded that the Appellant should be demoted to first-class constable for a minimum period of one year. Minimum demotions are permissible. X. v. Y. supra and Kyle and York Regional Police Service supra
The Hearing Officer then went on to rule that following that year “Officer Chan may be reinstated to the rank of Sergeant upon the recommendation of his Unit Commander”.
We find this to be problematic. It is not clear:
what standards are to be applied when assessing whether the Appellant warrants return to his former rank;
how and when any reassessment will take place;
to what extent this would differ from the normal process for promotion to sergeant; and
whether the Appellant can be reconsidered if he is not able to secure a recommendation at the earliest possible opportunity.
According, we would allow the appeal in part and vary the penalty to read as follows:
Sergeant Chan is reduced in rank to first-class constable for a minimum period of one year, following which he will be eligible for consideration in the Service’s normal promotional process for sergeant.
DATED AT TORONTO THIS 10th DAY OF December, 2010.
Dave Edwards Hyacinthe Miller
Member, OCPC Member, OCPC