OCPC #05-10
ONTARIO CIVILIAN POLICE COMMISSION REASONS FOR DECISION
CONSTABLE BRIAN AGUIAR
Appellant
TORONTO POLICE SERVICE
Respondent
Presiding Members:
Dave Edwards, Member
Hyacinthe Miller, Member
Appearances:
David Butt, Counsel for the Appellant
Robert Fredericks, Counsel for the Respondent
Hearing Date: October 6, 2010
On June 12, 2008 Superintendent Jane Wilcox, (the “Hearing Officer”) made findings of guilt against Constable Aguiar for two counts of misconduct contrary to section 74 (1)(a) of the Police Services Act R.S.O 1990, c. P.15 as amended (the “Act”).
These included discreditable conduct contrary to section
2(1)(a)(xi) of the Code of Conduct (the “Code”) set in Ontario
Regulation 123/98 and insubordination contrary to section
2(1)(b)(ii).
A Notice of Appeal was filed with respect to these findings. However, that appeal was abandoned.
Constable Aguiar now only disputes the penalty imposed on him on November 18, 2009, pursuant to section 68(1)(f) of the Act. That penalty was a reduction in rank from first-class constable to second-class constable for a minimum of one year.
Background:
Constable Aguiar began his employment with the Toronto Police
Service on September 14, 1976.
On April 7, 2006, he was working the night shift in 13 Division. His supervisor, Sergeant Browne, paraded officers at 11 p.m. and assigned them to vehicles, special details and other duties. He also directed the times that officers were required to take their lunch. He assigned Constable Aguiar a 2 a.m. lunch hour.
At 12:20 a.m. Constable Aguiar was directed to investigate a theft from a local drugstore. By 2:15 a.m., he returned to the Division. When Sergeant Browne went to look for him, he was not in the main floor report room, but rather in the Community Response Unit office on the second floor.
Sergeant Browne asked Constable Aguiar how long his report was going to take. His response was that it could take two hours to be completed or it could take three hours. Sergeant Browne reminded the officer that he was expected to take his lunch hour.
At 2:55 a.m. Constable Aguiar advised Sergeant Browne that he was still working on the synopsis of the report. Sergeant Browne later returned to the see how the report was progressing. Constable Aguiar advised Sergeant Browne that his interruptions were delaying completion of the report. He was again reminded of the expectation that he would take his lunch.
Sergeant Browne informed his supervisor of his conversations with Constable Aguiar. At 3:47 a.m. he went out on the road.
During the shift Constable Aguiar made several entries in his memo book. The first at 2:55 a.m. read: “Sgt’s office. Incident occurred. See journal". A second entry at 3 a.m. noted: "in community office, I telephoned Sgt. Browne for a private meeting
-- see journal for details". A third entry at 3:15 a.m. indicated: "Incident occurred in Community office with Sgt. Browne. See
journal for details".
Subsequently, Constable Aguiar left the station. For the balance of his shift there are various entries in his memo book referring to minor tasks; however, at 7:00 a.m. Constable Aguiar recorded, "ROD" [an abbreviation for report off duty] and “one hour no lunch”. He then signed the memo book and recorded an authorization with the badge number 4984, which belongs to Sergeant Browne.
On April 15, 2006, it came to Sergeant Browne's attention that Constable Aguiar had made this entry into his memo book. According to Sergeant Browne, he had not authorized a “no lunch”.
He commenced an investigation into the April 8th entry. As a result, Constable Aguiar was charged with the disciplinary offences of discreditable conduct and insubordination.
The Statement of Particulars for the discreditable conduct allegation read:
Being a member of the Toronto Police Service, attached to Number 13 Division, on Friday, April 7, 2006, you were on duty scheduled to work the night shift.
You reported for duty at 11:00 p.m. and were assigned a 2:00 a.m. lunch hour.
You recorded in your memorandum book, "1 hour no lunch" "auth 4984". Sergeant Jimmy Browne (4984) did not authorize you working through your lunch hour on this date.
In so doing, you have committed misconduct in that you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Toronto police service.
The Statement of Particulars for the insubordination allegation read:
Being a member of the Toronto Police Service, attached to Number 13 Division, on Friday, April 7, 2006 you were on duty scheduled to work the night shift.
You reported for duty at 11:00 p.m. and were scheduled to work until 7:00 a.m. on Saturday, April 8, 2006. During your tour of duty, you recorded ”see journal” three (3) times in your memorandum book.
Pursuant to Toronto Police Service Procedure 13-17
Memorandum Books, on Wednesday, June 28, 2006 you were told by Staff Sergeant Scott Gilbert (5955) that you were required to produce the journal that was referred to in your memorandum book.
On Monday, August 21, 2006 you submitted an internal correspondence to Your Unit Commander stating that, "my personal and private journal was not available at this time."
On Sunday, September 17, 2006 you were served with an internal correspondence written by Staff Sergeant Scott Gilbert ordering you to surrender your journal immediately. You failed to surrender your journal.
In so doing, you have committed misconduct in that, you did without lawful excuse, disobey omit or neglect to carry out any lawful order.
A Notice of Hearing was served on Constable Aguiar on September 27, 2006. It included a statement that the penalty of dismissal or demotion could be imposed if the alleged misconduct was proved on clear and convincing evidence.
The hearing commenced on February 13, 2008. Constable Aguiar pled not guilty to both charges. It concluded on November 18,
2009 when the Hearing Officer rendered her decision on penalty.
Appellant’s Position:
Mr. Butt advised that the appeal of convictions was abandoned and made the following submissions with respect to penalty:
the Hearing Officer’s analysis of the seriousness of the offence was problematic, with the result that the penalty was excessive;
the Hearing Officer erred in failing to give proper weight to the 10 year gap between the misconduct in issue and the Appellant's prior disciplinary infractions; and
the penalty imposed would have an unduly harsh impact because it would affect the Appellant's pension.
He submitted that the Hearing Officer's labelling of human conduct in legal terms (i.e. insubordinate or discreditable) was unhelpful, because it obscured the context and increased the apparent seriousness of the Appellant's actions.
To illustrate his point, Mr. Butt asked us to consider an analogy of the word “murderer”, which is a legal term that carries significant emotional content and drives our perception of the act. The term becomes problematic when emotions are allowed to drive the analysis, rather than utilizing just and proper distinctions with respect to the seriousness of a particular situation.
He characterized the incident in question as a "little tiff" over lunch and argued that to label it as serious meant we lost the ability to properly describe truly serious misconduct such as excessive use of force.
He submitted that the Hearing Officer's analysis did not specifically address mitigating factors. In doing so, she failed to conduct a nuanced analysis. She was correct in concluding that disobeying lawful orders is a bad thing that breaches the Act. But he challenged her analysis as flawed, starting as it did from the baseline that Constable Aguiar's misconduct was serious. This led her to incorrectly assess the mitigating or aggravating circumstances when considering a range of penalties.
Mr. Butt challenged the Hearing Officers use of prior disciplinary actions against Constable Aguiar. This related to convictions in August of 1995 for five counts of insubordination and one of deceit. As well, he was convicted in October of 1996 for two counts of discreditable conduct, two counts of insubordination and one count of neglect of duty. The latter resulted in a six month demotion.
Mr. Butt described these matters "stale-dated disciplinary records". Mr. Butt argued that the 10 year gap between those and the current events is a long time. He suggested that common sense dictates that an individual is not the same person he or she was 10 years ago and recent behaviour should not be assumed to be a continuation of past behaviour.
He argued that, on its face, the Hearing Officer’s recounting of earlier evidence in the context of this recent misconduct allowed the previous discipline to colour her decision. He argued the past discipline was so old to be irrelevant. Once a period of three to five years has elapsed, prior discipline should be given diminished weight. Because the Hearing Officer did not look at the "big picture", the conclusions reached were unreasonable and failed to give Constable Aguiar credit for the 10 year interim period of good behaviour.
Mr. Butt reminded us that the Act is clear that a record of informal discipline must be expunged within a specific period of time, and cannot be relied upon in assessing penalty.
He drew our attention to criminal law, which allows for expungement of criminal records and to some collective agreements, which provide for removal of disciplinary records from an individual's personnel file.
He argued that these were examples in law of the general wisdom of applying fairness to past disciplinary history. He asked us to use these concepts as context to illuminate this situation.
Mr. Butt submitted that his client is at an age where a one-year demotion will create a significant negative impact on his pension. He currently has 34 years of service. Under the collective agreement, pension eligibility for calculation purposes, tops out at
35 years.
He argued that imposing a one-year demotion at this point in his career will result in a financial penalty that will continue to increase over the years because of a lost pension entitlement, solely because of his age and years of service. He suggested this would amount to a form of age discrimination, in that age and years of service cannot be separated.
Mr. Butt observed that a younger officer with less service would not suffer a similar pension hit. He noted that his client is a police constable and that police work is physically demanding, and "a young man's game". He conceded that Constable Aguiar is not required to retire after 35 years of service, but that effectively, after 2011, he will have maximized his pensionable years and will not have an opportunity to "work off" the financial impacts of a demotion.
Mr. Butt further argued that it was unreasonable for the Hearing Officer to ignore the financial impact on Constable Aguiar. Calculations of the financial impact, and actuarial tables should have been reviewed.
He also drew our attention to the wording of the penalty found at page 12 of the decision:
For one count of Discreditable Conduct and one count of Insubordination the penalty in this matter will be: Reduction in rank from First Class Constable to Second Class Constable for a minimum of one year. After one year, the officer may be considered for reclassification to First Class Constable upon being evaluated as suitable, as per the established reclassification process.
Mr. Butt took issue with the word “minimum”. He also contended that this was a departure from the standard wording and carried the implication that the Hearing Officer was delegating to the Appellant’s supervising officer the ultimate decision as to whether and when Constable Aguiar should proceed back to his original rank.
In his view, this was an improper delegation of the tribunal’s authority to an individual not part of the disciplinary process and whose determination at some later date would not be subject to oversight.
Mr. Butt did not provide a Book of Authorities to support his position. With respect to previous Commission decisions, he suggested that none was sufficiently similar to be helpful.
He asked us to vary the penalty to a period of days rather than demotion. However, should we uphold the existing penalty, Mr. Butt requested that we substitute wording that clearly limited the period of demotion.
Respondent’s Position:
Mr. Fredericks made several submissions on behalf of the Respondent. Essentially, he asserted that all three of the Appellant's concerns were without merit.
He reminded us of our role in reviewing the reasonableness of the Hearing Officer's decision. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 at paragraph 29 (S.C.C.)
Mr. Fredericks then took issue with the characterization of the conduct in question as "trivial" or an "administrative bump in the road". To the contrary, he submitted that Constable Aguiar's misconduct was extremely serious.
He noted that in the Appellant's factum, there is scant reference made to the transcript or evidence presented at the disciplinary proceeding. He urged us to look at the facts of the case in the background outlined in his factum.
Mr. Fredericks’ first point was that Constable Aguiar made an entry into his notebook, indicating that he had been approved for a lunch. Constable Aguiar, with his years of service, was well aware of Service policies. He did not follow procedure, but wrote in his notes that his supervisor, Sgt. Browne, had authorized a “no lunch” approval. This was false.
Evidence showed that Sergeant Browne spoke with Constable Aguiar at least three times reminding him that he was required to take his lunch. In ignoring his supervisor’s direction, the Appellant did not just commit an act of omission, but deliberately signed his notebook with Sergeant Browne’s badge number and received a wage payment to which he was not entitled. This could be characterized as stealing and deceit, which are all serious actions.
Further, the Appellant’s behaviour during the verbal exchanges with his supervisor was belligerent, unprofessional and showed a certain degree of petulance.
Mr. Fredericks submitted that, while the Appellant's factum claims that Constable Aguiar worked through his lunch, no evidence was presented during the disciplinary hearing that he sought or was given approval to work through his assigned lunchtime.
In addition, the Service had in place, extensive policies and procedures with respect to the criteria for approving payments to an officer for working through his or her lunch. As was heard in evidence, the Service stresses the importance of monitoring lunch assignments and has implemented a series of checks and balances to ensure that practices are audited.
Mr. Fredericks also pointed out that police officers are not permitted to maintain a separate set of notebooks or journals relating to their day-to-day police work. It is apparent from the record that Constable Aguiar did.
Constable Aguiar's refusals to disclose the journal which he referred to in his memo book were acts of pre-planned and repeated insubordination. His behaviour, in the face of direct orders, was undignified and belligerent. He was not prepared to acquiesce, but rather, during his interview with two senior officers displayed contempt for their authority and provided wildly varying explanations of where the journals were.
His first response was that the journal had been destroyed. His second response was that it was only available for viewing by his legal counsel, as it documented improper behaviours of others in the workplace. The third response was that his “personal and private journal” was not available. The fourth response was that he would look for it.
Mr. Fredericks argued that the Hearing Officer clearly analyzed the seriousness of the misconduct in the context of the circumstances and properly identified that Constable Aguiar had claimed a benefit to which he was not entitled. He failed to complete the required documentation relating to his personal journal by the end of his shift. He had opportunities to correct his puzzling pattern of behaviour but demonstrated no intention to change. Despite his age and years of experience, he chose a path of disregarding direct orders and Service policy.
Mr. Fredericks suggested that there were few mitigating factors, and that those identified were not particularly relevant. He asked us to consider the public reaction should it become known that the Appellant had acted as he did and the Service had treated it as a fleeting administrative issue.
With respect to Constable Aguiar's disciplinary history, he submitted that the past charges were similar to the more recent misconduct. They both involved deceit and insubordination. In particular, he drew our attention to the judgment from the 1995 conviction. In that case Constable Aguiar was argumentative, insolent, rude and non-compliant with direct orders when confronted with evidence of his misconduct.
Mr. Fredericks suggested there was a disturbing common thread in the fabric of the Appellant's misconduct and that rehabilitation was a concern, given that there is no indication of any resolve on the part of Constable Aguiar to control his behaviour. He had previously been assessed penalties of a loss of pay for the first conviction and for the second, a demotion for six months.
The Hearing Officer analyzed arguments with respect to the 10 year gap and identified it as mitigating; however, she was not persuaded that it was enough to support a short-term penalty of forfeiture and pay.
He noted that the Prosecution had asked for a demotion of two years. Mr. Fredericks submitted that the Hearing Officer's decision shows that the range of penalty considered was from a two-year demotion to a possible termination.
He contended that the Hearing Officer looked at the spectrum of seriousness and based her conclusions on the remarkable similarities between the acts of misconduct. She also noted that there was no provocation or other matter mitigating factors. She also considered consistency and specific deterrence as weighing heavily in her decision.
He countered Mr. Butt's analogy respecting criminal pardon provisions and section 76(13) of the Act relating to expungement, noting that the legislation only allows for removal of informal discipline records after two years. They cannot then be relied on to “bump up” the severity of a penalty. Hampel and Toronto Police Service (2009) CanLII 16299 (Ont. Div. Ct.)
While the Act does not speak to how prior disciplinary infractions are to be relied on, records of formal discipline remain a permanent mark on a police officer's record and are available for consideration in similar-fact situations. Betts and Ontario Provincial Police (1997), 3 O.P.R. 1171 (O.C.C.P.S.)
He submitted that the Hearing Officer’s reasoning was consistent with principles of progressive discipline. Mr. Fredericks argued that case law fully supports the notion of progressive discipline. Brudlo and Toronto Police Service (November 23, 2005, O.C.C.P.S). Prior disciplinary history can be a tipping point when considering penalty. Eschweiler and Ontario Provincial Police (1998), 3 O.P.R. 1276 (O.C.C.P.S.)
With regards to the economic impact of the one-year demotion, the penalty is not unfair, disproportionate or discriminatory. Mr. Fredericks noted that the transcript of proceedings contains no reference to any calculations about the impact of demotion compared to a loss of pay as a penalty.
In other words, the Appellant's counsel chose not to introduce any data on actuarial impact at the misconduct hearing. He observed that it is the seriousness of the misconduct and past disciplinary history that are factors in determination of an appropriate penalty.
He drew our attention to Carmichael and Ontario Provincial Police (1998), 3 O.P.R. 1232 (O.C.C.P.S.) where the penalty caused a significant financial hardship, arguing that Constable Aguiar's situation is not comparable as his choice of when to retire is discretionary and not mandatory.
Mr. Fredericks argued that Constable Aguiar is the author of his own misfortunes. He had been involved in a similar situation before. He knew what the possible penalties were. He deliberately chose not to comply with the directions of his supervisors. It is not fitting that he should now plead financial distress.
He reminded us that the Hearing Officer is a lay tribunal and that while she may not have been explicit in outlining every point she considered, there is no error in law in the decision reached. Her reasoning was intelligible and justifiable. There was no manifest error. The Hearing Officer properly considered the relevant sentencing factors.
The penalty of demotion for one year was reasonable, consistent with the principles of progressive discipline and within the range of appropriate penalties, given the seriousness of the misconduct.
He submitted that the appeal should be dismissed.
Decision:
Constable Aguiar is appealing the penalty imposed by the Hearing
Officer.
When considering 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’s decision is reasonable.
The Supreme Court of Canada commented upon the standard of reasonableness in Dunsmuir v. New Brunswick supra., at paragraph 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 relevant factors, legal principles or was otherwise unjust. 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.)
As was noted in Carson and Pembroke Police Service (March 9,
2006, O.C.C.P.S.) at pages 14 to 15:
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.
The question for us is did the Hearing Officer fairly, impartially and reasonably apply these principles and properly consider all relevant matters with respect to penalty and does that penalty fall within an appropriate range?
Mr. Butt’s argument that, in considering the 1996 disciplinary conviction and six-month demotion imposed , the Hearing Officer participated in “misuse of the past” and an “erroneous exercise in deep historical excavation” and committed an error in principle that cannot be supported by the facts or precedent.
Mr. Butt’s contention that the Hearing Officer should have been forward-looking when considering an appropriate penalty, given that a reduction in rank would have a long-term, negative impact on Constable Aguiar’s pension income, i.e., mounting “pension losses” and “an escalating and never-ending monetary penalty”,
ignores the fact that no evidence of pecuniary hardship was proffered at the disciplinary hearing.
With respect, we do not agree with Mr. Butt’s submission that the Hearing Officer “over-weighted the stale prior convictions” in reaching the conclusion that the 2006 misconduct was at the upper threshold of seriousness.
To our mind, it was perfectly appropriate and fair for the Hearing Officer to take into account that Constable Aguiar’s disciplinary history was neither unblemished nor exemplary. He had several previous convictions for similar acts of insubordination on record. In August 1995, he was found guilty of five counts of insubordination and one of deceit, for which he was assessed a penalty of forfeiture of seven days’ pay. In October 1996, he was convicted of two counts of discreditable conduct, two counts of insubordination and one count of neglect of duty, for which he was demoted to second-class constable for a period of six months.
From the record, it is clear that the Hearing Officer considered the multiple incidents of insubordination, Constable Aguiar’s notebook entry falsely authorizing payment for a lunch not taken on April 8,
2006, his failure to account truthfully for the journal referenced in his memo book, and his failure to comply with Service policy
relative to reporting allegations of improper behaviour of peers or
supervisors.
In weighing the Appellant’s submission that a suitable penalty would be a loss of days and the Service Prosecutor’s suggestion that a 24 month demotion should be applied, the Hearing Officer carefully assessed the most appropriate cases made available to her and concluded that the submissions of counsel were not binding. Wildeboer and Toronto Police Service (November 6,
2006, O.C.C.P.S.)
She weighed Constable Aguiar’s length of service and positive documentations on file and did not accord the absence of a guilty
plea or his choice of a trial any weight. She noted that his clear discipline record between the 1996 convictions and the current discipline provided positive mitigation against imposing the higher penalty proposed by the Prosecution. She further found that Constable Aguiar had not learned from his previous discipline. She also expressed concerns about the Appellant’s demonstrated potential for rehabilitation.
In determining a penalty that was within an appropriate range under the circumstances, the Hearing Officer considered the need for general and specific deterrence for police officers who exhibit “defiant behaviour” and take it upon themselves to determine the orders with which they will comply. She considered the potential damage to the reputation to the Service and the effective management of the police force.
The Hearing Officer also noted the potential negative financial impact on the Appellant, but concluded that the seriousness of the misconduct and the evidence of his previous disciplinary history mitigated against a lighter penalty. This is certainly a reasonable conclusion.
Further, consistency of penalty is not an “absolute”. There is a range of penalties that have been imposed for insubordination and discreditable conduct; however, the mitigating and aggravating factors can vary. In this case, the Hearing Officer determined that the repeated failure of the officer to comply with the orders was an aggravating factor. Gregg and Midland Police Service (2001), 3 O.P.R. 1522 (O.C.C.P.S.)
In Thompson and Chatham Police Service (1977), 1 O.P.R. 342 (O.P.C.) at page 345, it was stated that:
This Commission takes a serious view of deliberate disobedience of orders, properly authorized by statute and by authorities given responsibility under the statute. The Commission is of the opinion that if the decision as to whether or not a lawful order should be
obeyed is a subjective one, then chaos must be the result and the complete breakdown of policing which would undermine the force to a degree as to make it impotent and create anarchy. There are saving procedures to protect constables against tyrannical and illegal orders, but the method chosen by the appellant to challenge the system, assuming that he was sincere in his convictions, was completely improper.
We agree with these comments.
The role of a police officer carries considerable authority. With that authority comes accountability. Constable Aguiar was a veteran police officer. As a senior member of the Service, he would have been abundantly familiar with Service policies and procedures relative to note-taking and preservation of Service property, i.e., notebooks, following supervisors’ directions and rules for taking assigned lunch breaks or applying for authorization from a supervisor. Obeying lawful orders is non- negotiable. The community must have confidence in the police officers sworn to serve and protect.
The Hearing Officer found Constable Aguiar guilty of two counts of misconduct. Having considered the arguments presented by the Appellant and the Respondent and the reasons of the Hearing Officer on the issue of penalty, we can find no manifest error in principle or lack of consideration of the appropriate factors of sentencing that would entitle us to vary the length of the reduction in rank or the condition imposed.
We do not find that the assessment of a one-year demotion in rank was either undeserved or fundamentally unfair. Based on the evidence before her and the totality of the record we examined, we conclude that the penalty imposed by the Hearing Officer fell within the range of penalties available to her. Her decision was reasonable.
For these reasons, we dismiss the appeal.
DATED AT TORONTO THIS 29th DAY OF NOVEMBER 2010.
Dave Edwards Hyacinthe Miller
Member, OCPC Member, OCPC