Suleiman v. Ottawa Police Services and Lord, 2011 ONCPC 10

OCPC #11-11

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED

Citation: Suleiman v. Ottawa Police Services and Lord, 2011 ONCPC 10

B E T W E E N:

MAGABI SULEIMAN APPELLANT

-and-

OTTAWA POLICE SERVICE RESPONDENT

-and-

CONSTABLE JACKY LORD RESPONDENT

DECISION AS TO PENALTY

Panel: David C. Gavsie, Chair Zahra Dhanani, Member

Dates of Written Submissions: July 21, 2011 August 5, 2011

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, Ontario M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca

Written Submissions Received From: Mr. Mark Wallace, Counsel for the Respondent, Constable Jacky Lord Ms. Christiane Huneault, Counsel for the Respondent, Ottawa Police Service

Introduction

1On December 14th, 2009, Constable Jacky Lord (the "Respondent Lord") pled not guilty to two charges of misconduct contrary to the Code of Conduct set out in Ontario Regulation 123/98 (the "Code of Conduct"), enacted under the Police Services Act, R.S.O. 1990, c.P.15, as amended, (the "Act"). The Respondent pled not guilty to the following two charges of misconduct: one count of unlawful or unnecessary exercise of authority contrary to section 2(1)(g)(i) and one count of insubordination contrary to section 2(1)(b)(ii).

2The charges were laid as a result of the Respondent's arrest and strip search of Magabi Suleiman (the "Appellant") on July 31st, 2008.

3On September 15, 2010 a decision was rendered by Deputy Chief Terence Kelly (Ret.) (the "Hearing Officer") acquitting the Respondent on both of the charges against him.

4The Appellant appealed the decision of the Hearing Officer to the Ontario Civilian Police Commission (the "Commission"). The Ottawa Police Service ("Respondent OPS", or "OPS"), was also a named respondent in the appeal.

5The appeal was heard on May 15, 2011. On June 17th, 2011, the Commission panel released a decision granting the appeal and revoking the Hearing Officer's judgment, finding Constable Jacky Lord guilty on both of the charges.

submissions on penalty. The Panel had not made an assessment on penalty because this was not addressed in submissions before them or in the judgment of the Hearing Officer. A schedule was set for receipt of submissions from the parties. The Respondent Lord was given 10 days from the release of the decision. The Appellant and the Respondent OPS were given 10 days from the receipt of the Respondent Lord's submissions to make theirs to the OCPC, and then there were 5 days for reply allowed to Respondent Lord.

7This is the Panel's decision on penalty.

Decision

8For the reasons set out below, we order the Respondent Constable Jacky Lord to forfeit 8 days or 64 hours pay.

Background

9The background and findings of the Panel are in the decision on the appeal Magabi Suleiman and the Ottawa Police Service and Constable Jacky Lord (June 17, 2011, OCPC).

10For the penalty phase of this appeal, submissions were received from the Respondent Lord and the Respondent OPS. We have carefully reviewed these submissions.

11A similar penalty was proposed by both the Respondent Lord and the Respondent OPS in their submissions as to penalty. Both parties proposed the forfeiture of 8 days or 64 hours of pay.

12No submissions on penalty were received from the Appellant.

Submissions on Penalty for the Respondent, Constable Jacky Lord

13Mr. Wallace submitted that the Respondent has been employed by the Respondent OPS since 2002 and is held in high regard by his supervisors. He referred to testimony given at the initial hearing by Sgt. Claude Mallet that the Respondent Lord is "the best officer in his platoon."

14Mr. Wallace included letters of commendation that the Respondent Lord had received from his superiors, from two Crown lawyers and from members of the Ottawa community. Mr. Wallace asserted that the Respondent Lord has been complimented for his work and community involvement on a number of occasions.

15Mr. Wallace stated that the Respondent Lord has been off work on stress-related disability leave from November, 2009 to December, 2010.

16Mr. Wallace argued that while the Respondent Lord does have a disciplinary record, he has not been found guilty in similar fact circumstances. In addition, there have not been any allegations of misconduct against the Respondent Lord since the July 31, 2008 allegations.

17Mr. Wallace submitted that while the Respondent Lord was wrong, he was wrong based on his honestly held belief. Mr. Wallace further provided that Respondent Lord agrees that the insubordination charge is the more serious of the two.

18Finally, counsel submitted that the penalty to be imposed on the Respondent Lord should consist of the forfeiture of eight days (64 hours) pay. Counsel submitted that he arrived at this penalty submission jointly with the Respondent OPS.

Submissions for the Respondent OPS

19Ms. Huneault submitted that there are a number of relevant factors to be weighed when assessing penalty. These include with similar conduct. Carson and Pembroke Police Service (March 9, 2006, OCCPS).

20She asserted that because these principles are of fundamental importance, the outcome of this kind of decision is important to many parties, including the public, the employee and the employer.

21Counsel indicated that it is imperative that the public have faith in policing and police officers. She argued that there is case law supporting the conclusion that if police officers breach the trust of the public, they should no longer be police officers. Bright v. Konkle (1997) 2 PLR 481. She further argued that the role of a police officer demands a high degree of accountability and exemplary conduct as stated in Karklins and the Toronto Police Service (April 12, 2007, OCCPS).

22Ms. Huneault submitted that the conduct of the Respondent Lord in this matter fell well below the reasonable conduct expected of a police officer. She submitted that the public is entitled to be free of unreasonable strip searches by the police.

23She argued that the Respondent Lord's misconduct was very serious in nature, that he should have known appropriate procedure as he is a first class constable and that this misconduct was so serious that it infringed the Appellant's Charter Rights without any worthy justification.

24Ms. Huneault submitted that between 2006 and 2009 the Respondent Lord was found guilty of 7 charges of misconduct and has had to forfeit over 200 hours of pay in penalty. She submitted that this represents a less than exemplary work record and that the Respondent Lord has a propensity to disregard orders.

specifically send the Respondent Lord a message to avoid repeating these actions in the future.

26Ms. Huneault submitted that while the proposed penalty will have an impact on him and his family, the penalty is the result of the Respondent Lord's behavior, as such he has to bear the consequences.

27Ms. Huneault stated that the actions of the Respondent Lord has tarnished the reputation of the Respondent OPS in the eyes of both the public and the Appellant.

28She advanced both mitigating and aggravating factors that were relevant for consideration when assessing appropriate penalty. For mitigating factors she pointed us to: 1) this was not a deliberate or planned act of misconduct, 2) the misconduct involved no personal gain, and that, 3) the Respondent Lord has received positive commendations from supervisors and civilians.

29As for aggravating factors, Ms. Huneault referred us to: 1) negative publicity, 2) the Respondent Lord's disciplinary history, 3) the Respondent Lord's disregard of proper police policy and procedures in this case, 4) the Respondent Lord's unwillingness to acknowledge misconduct, 5) the seriousness of the misconduct, 6) the damage to the reputation of the OPS, and finally, 7) that this constituted a breach of the Appellant's Charter rights.

30Ms. Huneault submitted that the appropriate penalty in this case would be a forfeiture of eight days or 64 hours pay. She stated that this was consistent with the case law.

31Counsel submitted that the penalty in many of the cases that involve unlawful or unnecessary exercise of authority, is a forfeiture of days off, forfeiture of pay or suspension without pay. Penner and Cst. Parker, Cst. Koscinski and Niagra Aybar and Toronto Police Service (March 7, 2003, OCCPS).

32Finally, Ms. Huneault asserted that the penalty should include a high emphasis on specific and general deterrence, and the public must be reassured that the police will be held accountable for breaching the trust they owe the public.

Reasons for Decision

33Although not in the form of a joint submission, both the Respondent OPS and the Respondent Lord through counsel have recommended the same penalty.

34Technically, while not a joint submission in that the Appellant was not part of it, we see the similar penalty submission as akin to a joint submission.

35The Respondent OPS was adversarial to the Respondent Lord in the initial hearing and during the appeal. In effect, the Respondent OPS made arguments that could have been made by the Appellant were he represented by counsel.

36We regard the request for the same penalty from both Respondents as in effect being a joint submission, in that we understand that both counsel must have gone through considerable work to come up with a penalty that would be agreeable to their clients and reflect the applicable law. We appreciate their work and efforts to this end and will give this appropriate consideration.

37The Commission and the Courts encourage joint submissions. There are good public policy reasons for doing so. For one thing, it saves the public administration of justice much in time and resources. Yakimishyn and the Peel Regional Police (June 4, OCCPS, 2008), R v. Druken (2006), 2006 NLCA 67, 215 C.C.C (3d) 394 (Nfld. C.A.)

of the law and the facts. This said, joint submissions should be accorded a high level of deference and are not to be disregarded unless there are good and cogent reasons for doing so. Rault v. Law Society 2009 SKCA 81.

39While the Appellant did not make any submissions as to penalty, we find that the Respondents' submission on penalty is reasonable and appropriate. Pankiw v. Chiropractors Association, 2009 SKQB 268.

40The panel must review the submissions to ensure that the penalty being proposed is reasonable and takes into account the appropriate sentencing factors, with an eye to fairness and proportionality.

41When assessing penalty, there are a number of key factors to be weighed. These include the nature and seriousness of the conduct, public interest, ability to reform, acknowledgment of responsibility and consistency in dealing with similar conduct.

42Other relevant concerns can include employment history, deterrence, the ability to reform or rehabilitate the officer in question, and the impact on the police force should the officer remain with the Service.

Nature and Seriousness of the Misconduct

43In the decision released by this Panel finding the Respondent guilty on both charges, we stated:

"The Canadian Charter of Rights and Freedoms guarantees the right of Canadians to be free from unlawful search, seizure and detention. These fundamental protections are the foundation of a truly democratic society and form the basis of policing law and regulation. Without important safeguards such as these, liberty from the excesses of policing cannot be ensured".

44Unlawful arrest is not a minor or technical form of misconduct. It violates basic human rights. Unlawful arrest is a serious matter. This has been affirmed in many decisions of the Commission. As stated in Blowes-Aybar and Toronto Police Service (supra), unlawful arrest "is a serious matter to the complainant and to society as a whole."

45Furthermore, a strip search that does not follow proper police procedures is bound to cause harm because of the vulnerability this causes for the person being searched. It appears to us that the OPS policy and procedures on strip searches was crafted so as to protect against the serious harm this form of investigation can cause. Strip searches result in an infringement of privacy and an intrusion on personal dignity.

46The OPS Strip Search policy comes directly from the position held by the Supreme Court of Canada in R. v. Golden, 2001 SCC 83, 2001 SCC 83, [2001] 3 SCR 679 Can LII, the Supreme Court stated that, "strip searches are inherently humiliating and degrading for the detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy."

47The OPS policy further states that "prior to conducting a strip search, members shall (emphasis added):

a) have a higher degree of concern for privacy and medical assistance;

b) ensure the arrest is lawful and the search is related to the reasons for the arrest;

c) ensure the presence of reasonable and probable grounds for concluding that a strip search is necessary.

48In this case the Appellant was taken behind a 7/11 store and searched in such a fashion that anyone who happened by could have seen the search. The Appellant in this case provided evidence that this experience was humiliating and embarrassing for him. There was absolutely no reason given station as required by the OPS policy.

Employment History and Ability to Reform or Rehabilitate the Police Officer

49The Respondent Lord provided five letters of support for his high quality of policing during his service with the OPS. In those letters he is commended for his "excellence", "street smarts", "compassion", "initiative", "knowledge", "intuition", "commitment" and "professionalism".

50The Respondent Lord has clearly made a positive contribution to policing and the City of Ottawa. His current supervisor described him as one of the "best" in his team.

51Unfortunately, since 2006, the Respondent Lord has been convicted of 7 charges of misconduct. It is troubling to see that neither the convictions nor the related penalties have disuaded him from engaging in further misconduct.

52The previous misconduct charges include:

1. using profanity, abusive or insulting language in messages he sent over the OPS mobile network,

2. failure to attend court,

3. lying about time he spent at court,

4. using the OPS email system inappropriately,

5. using a profane, abusive or insulting language to a member of the public,

6. using unnecessary force, and

7. not maintaining appropriate records.

53The Respondent Lord has forfeited a total of 25 days or 200 hours of pay for these previous convictions.

54In the OPS disciplinary hearing into the conduct of the Respondent in an incident just prior to the event resulting in this appeal, he was ordered to forfeit twelve days. The Hearing Officer in that case, Supt. C. Bordeleau, made the following comment:

"It was agreed that Constable Lord has a less than stellar disciplinary history. He has appeared before other Hearing Officers in the past and has been dealt with in various ways. One can only hope that he is able to curtail his wayward tendencies and contribute all that he is able to contribute to his community and police service.

Bearing Constable Lord's disciplinary history in mind, it is submitted that twelve days time would be an appropriate disposition of these matters. In relation to the relative severity of such forfeiture, I must indicate very clearly that there is certainly nothing trifling about a disposition of this magnitude." (emphasis and underlining added.)"

55We do not believe that the Respondent Lord recognizes the serious nature of his misconduct. We base this on the evidence before us including the transcript of the OPS investigation interview, his written statement for the same investigation and his "not guilty" plea. The Respondent Lord did not testify at the initial hearing.

56We believe that while he continues to have the confidence of the policing community his ability to be an effective leader, trusted by his peers and subordinates, has been seriously jeopardized.

57In balancing both his good employment record and his negative discipline history, we find that the Respondent Lord should get another chance to prove his ability to reform. We believe that he could still make an important contribution to the OPS.

regard for the law and for the public. They are held to a higher standard than civilians. The Respondent Lord has shown a blatant disregard for both the law and the public in his past acts of misconduct, as well as this matter.

Public Interest, General Deterrence and Specific Deterrence

59In this case the public interest and general deterrence are key sentencing factors in forming our decision on penalty.

60The public has a very keen interest in deterring unlawful arrest and improper searches by the police. Criminal Law jurisprudence is rife with cases that defend the public against these violations. R. v. Golden (supra). Strip searches must be conducted legally and according to police policy. This is necessary to protect the rights of the public. In the case of R. v. Golden (supra), even though the alleged offender did indeed commit a crime, because the strip search was conducted unlawfully, the offender was acquitted of the charges against him. This clearly illustrates the extent to which Canadian law protects the public's interest in the case of strip searches.

In our view, when a police officer exercises a power of search, particularly one as invasive as a strip search, they must comply with applicable Service policy. The Respondent Lord did not follow the OPS strip search policy. Therefore, as a matter of public interest and general deterrence, a sanction must be imposed.

61Finally, regarding specific deterence, the Respondent Lord should understand from this decision that he must follow OPS policy at all times and that he must make every effort to avoid any future misconduct.

Prior Decisions of the Commission

62We find that this case may be distinguished from the other cases before us. Our penalty reflects the seriousness of the misconduct and the public interest in condemning such misconduct. We note and are troubled by the fact that the Respondent Lord has not been deterred by past penalties, no matter how severe.

63The case most like the one before us is Blowes-Aybar and The Toronto Police Service (supra) which was also a case of unlawful arrest. In that case the Commission ordered a penalty of 4 days suspension for the one finding of misconduct. Given there are two convictions of misconduct before us, we find it reasonable that we would receive a recommendation from the Respondents of forfeiture or suspension of 8 days of work.

Conclusion

64For the reasons set out above, we order the Respondent Lord to forfeit 8 days or 64 hours pay.