Constable Jeffrey Gulick v. Ottawa Police Service, 2011 CanLII 101560

OCPC-#11-06

ONTARIO CIVILIAN POLICE COMMISSION REASONS FOR DECISION

Citation: Gulick v. Ottawa Police Service, 2011 ONCPC 5

CONSTABLE JEFFREY GULICK

Appellant

OTTAWA POLICE SERVICE

Respondent

Presiding Members:

Murray Chitra, Chair Zahra Dhanani, Member Hyacinthe Miller, Member

Appearances:

William J. Carroll, Counsel for the Appellant

Robert E. Houston, Counsel for the Respondent

Hearing Date: February 9, 2011

On January 11, 2010 Constable Gulick pled guilty to one count of discreditable conduct contrary to section 2(1)(a)(ix) of the Code of Conduct, Ontario Regulation 123/98 as amended.

Deputy Chief (Retired) Terence Kelly (“Hearing Officer”) found Constable Gulick guilty of that offence and on June 14th, 2010 imposed the penalty of resignation within seven days or dismissal.

Constable Gulick appeals that penalty.

For the reasons set out below we uphold the Hearing Officer’s penalty and dismiss this appeal.

Background:

On May 22, 2009, Constable Gulick failed his annual use of force re-qualification test. Later that day, at home, he became involved in a domestic dispute with his wife. A neighbour called

When police responded, a series of events occurred which resulted in several criminal charges being brought against Constable Gulick. As well, a number of disciplinary charges were laid. Disciplinary proceedings were suspended pending the outcome of the criminal proceedings.

Constable Gulick pled guilty and was convicted of four criminal offences. He received a suspended sentence with two years probation and community service.

The disciplinary charges were reduced to one count. The allegation read:

On July 31, 2009, you [Constable Jeffrey Gulick] were found guilty of the criminal offences of assaulting a Peace Officer, contrary to Section

270(2) of the Criminal Code of Canada, uttering threats to cause bodily harm, contrary to Section

264.1(2) of the Criminal Code of Canada and escape lawful custody, contrary to Section

145(1)(a) of the Criminal Code of Canada and mischief to property under $5000, contrary to section 430(4) of the Criminal Code of Canada before the Honourable Justice C. Anderson, Ontario Court of Justice at Ottawa, thereby constituting an offence against discipline …

The Hearing:

At the disciplinary hearing on January 11, 2010 Constable Gulick pled guilty to this charge and an Agreed Statement of Facts was read into the record.

It is lengthy, but worth repeating because it sets out the factual context for this appeal:

Jeffrey Gulick … has been a member of the Ottawa Police Service since July, 1998. He previously served 12 years as a member of the Ontario Provincial Police. Constable Gulick was assigned to the Partner Assault Unit in April, 2003. He was in that Unit when the events of May 22, 2008 unfolded.

On Thursday, May 22, 2008, Constable Gulick along with 7 other officers attended at the Professional Development Centre for the annual Use of Force Re-qualification.

At approximately 12:30 p.m. on the 22nd of May he was advised by Constable Stokes, one of the Use of Force Instructors, that he had not met the standard during the defensive tactics component. He was advised as a consequence that he had to leave his Use of Force devices including his service revolver at the Professional Development Centre. Constable Gulick responded that without his service revolver

he could not report for duty the following day or thereafter. He became very upset.

At approximately 1:00 p.m. Sergeant Jordan, the senior officer at the Use of Force Section of the Professional Development Centre and Constable Tremblay met with Constable Gulick. Sergeant Jordan advised him that he had not met the standard in handcuffing and the baton. Constable Gulick asked that he be retested immediately. It was explained to him that that could not occur; however after checking Sergeant Jordan advised him that he could re-attend for another session on the following Monday. Constable Gulick appeared to be initially upset according to Sergeant Jordan; however after the discussion he appeared to calm down. Constable Gulick admitted to Sergeant Jordan that he had been very unprofessional and owed an apology to Constable Stokes.

At some point around 1:30 p.m. Constable Gulick left the Professional Development Centre. He drove home. At approximately 2:30 that afternoon he phoned his wife at work. He was at that time, according to his wife, very upset. He informed her that he had failed the Use of Force test. He further informed her that he had been drinking. Mrs. Gulick spoke to one of her colleagues at work LC¹ and advised her that she had just received a call from her husband who was very upset. Mrs. Gulick left her office at that time with her colleague (who happened to be her next-door neighbour). When she arrived home her husband was not at the house.

Shortly before 3:00 p.m. Detective David Agnew West of the Partner Assault Unit spoke briefly by phone to Constable Gulick. West also spoke to Leslie Gulick who advised Detective West that she was concerned for her husband's safety because he had informed her that he had been drinking. She also told West that he was not there when she got home, but an empty scotch bottle was sitting on a table in the home.

Constable Gulick drove to the Elgin Street Station and spoke face-to-face that afternoon with Detective David West. It was the assessment of West that Gulick showed no signs of alcohol impairment. He did detect a slight smell of alcohol. During the time they were together West observed that Detective Gulick did not appear to be highly agitated or out of control at any point. Detective Gulick left the Elgin Street Station shortly before 4 p.m. Detective Gulick then drove home.

Leslie Gulick informed one of the officers who responded to a radio call, namely Constable Lauren Dupasquier as follows:

She stated that when her husband came home sometime after 4 p.m. he went to the kitchen and grabbed a beer. Mrs. Gulick asked her husband not to drink anymore. At one point after sitting down in the family room he threw the beer onto the floor. She stated he was very agitated. She also reported that Gulick kept saying: “I'm not mad at you, just get out of my way.” She also reported that Gulick kept repeating: “It does not matter, it just does not matter, it's all gone.”

There was a report of some physical struggle between the two initiated by Mrs. Gulick in an effort to establish eye contact with him. Furniture

including the dining room table was overturned with items on the top of the table being smashed when they hit the floor. At one point, Constable Gulick took a large kitchen knife which he had obtained from the kitchen and with the words: “this is use of force, is this use of force?” Constable Gulick slowly pushed the knife into a pillow once, withdrew the knife and stuck it into the wall. Mrs. Gulick asked “what are you doing?” Constable Gulick stated: “these are just things, they don't matter”. He stuck his finger in the hole in the pillow repeating: This is just a thing”. Thereafter he walked up and down the hallway without speaking.

At one point, Constable Gulick threw a telephone handset on the counter, breaking it. The phone rang (it was LC, the neighbour). Constable Gulick picked up a different handset and threw it on the floor - the battery came out of the phone. Ms. Gulick answered that call on yet another handset. LC said she should call 911 (the Gulick children had gone to the LC home prior to this call). Mrs. Gulick did not think calling 911 was necessary, especially since he had apparently calmed down. Constable Gulick made no attempt to interfere with this call or influence what she was saying. Within minutes of the call from LC the phone rang and it was the 911 operator. Mrs. Gulick never attempted to call

911 herself.

Shortly before 6 p.m. three police officers responded to a call of an assault involving a member of the Ottawa Police Service. The officers were Sergeant Holly Dawn Watson, Acting Sergeant Michael O'Reilly and Constable Lauren Dupasquier. The police officers entered the home. Sergeant Watson spoke to Constable Gulick. Sergeant O'Reilly spoke to Mrs. Gulick.

Although Constable Gulick does not recall his conversation with Sergeant Watson he does not contest the comments attributed to him. Constable Gulick told Sergeant Watson that he was on anti- depressant medication which he had taken that day and further

informed her that he had consumed half a bottle of Scotch and a cooler. He further informed her that he was embarrassed at not passing the Use of Force Training. He also informed her that he had been under a lot of stress at work in the past and spoke of a complaint registered against him by one of the members of the Crown Attorney's office. He further stated that he “hates” staff Sergeant Larry Collotello.

During the conversation with Constable Gulick, Sergeant Watson noted that he appeared to be "relatively calm", "relatively sober". During her involvement with Constable Gulick that evening Sergeant Watson detected no signs of impairment.

When Acting Sergeant O'Reilly entered the home he observed Constable Gulick who was seated in the living room on a couch. He stated that Gulick appeared calm at the time. O'Reilly met with Mrs. Gulick who advised him that her husband was extremely upset and had been drinking. She told O'Reilly that her husband's mood varied from rage to what she described as "eerie calmness". During the discussion with Mrs. Gulick, she denied that she had been assaulted or threatened in any way by her husband that afternoon.

Mrs. Gulick advised O'Reilly that her husband had been under the care of Dr. Goodman. At one point, that afternoon, the Psychologist spoke directly to O'Reilly as well as to Mr. and Mrs. Gulick. Dr. Goodman advised O'Reilly that as a result of speaking to Constable Gulick he did not see any immediate threat and was content to see Gulick the following morning.

Sergeant James Heaphy also attended at the scene in response to the radio call. He arrived at some point after the other three officers. He spoke to the neighbour LC who advised him that Mrs. Gulick had informed her that Jeff punched her in the face. Mrs. Gulick denies ever saying this.

Sergeant Heaphy, Sergeant Watson and acting Sergeant O'Reilly met to review the information they had received. They

determined there were sufficient grounds to arrest Constable Gulick for partner assault and mischief (the damage to the home).

During the period of time that the Sergeants were conferring with one another, Constable Dupasquier was instructed to stand near Constable Gulick and keep him under observation. During that period of time Dupasquier chatted about a number of matters with Constable Gulick, who was seated for most of the time on the sofa in the living room. He did from time to time get up and move around the house. In the period of time she was keeping him under observation she detected no signs of alcohol. Mrs. Gulick on the other hand, recollects detecting for the first time a slight slur in her husband's speech.

Sergeant Heaphy, Sergeant Wilson and Acting Sergeant O'Reilly report that while O'Reilly was in the process of advising Constable Gulick he was under arrest and that the three officers were going to have to take him "down town", Constable Gulick suddenly stated: "make me". O'Reilly who had been seated in the couch directly opposite Gulick stood up to read to him from his duty book his "rights to counsel". Just as he started to do that Gulick stood up and without warning punched him in the jaw with a closed fist. Sergeants Watson and O'Reilly attempted to restrain Gulick by the arms. Sergeant Watson and Constable Dupasquier tried to control his legs. During the struggle Gulick kicked both Sergeant Holly Watson and Constable Dupasquier. At one point Gulick broke free and punched Sergeant Heaphy in the left eye and cheekbone.

During the struggle Gulick stated: "I'll fucking kill you Heaphy". As the officers continued to struggle with Constable Gulick, he continued to try to grab Sergeant Heaphy's gun stating: "you're fucking dead Heaphy". At one point, Constable Dupasquier reports that Constable Gulick also said: "I'm going to kill you O'Reilly".

With the use of the taser on stun the four officers finally restrained Constable Gulick. He was handcuffed and had flex cuffs attached to his ankles. Constable Gulick was then placed in a cruiser. He attempted to kick at the window of the cruiser after being placed in it. He was driven to the Ottawa Civic Hospital by Constable Sharma who arrived at the scene at approximately

7:30 p.m., at or about the time that Gulick was finally restrained. Constable Sharma did detect a strong odour of alcohol while Gulick was in his presence.

As the officers were taking Constable Gulick from the cruiser at the Emergency entrance of the hospital he suddenly bolted from the control (having freed himself from the handcuffs and the ankle restraints) and ran across Carling Avenue towards the Experimental Farm located south of the Ottawa Civic Hospital. Three officers, namely Acting Sergeant O'Reilly, Constable Sharma and Constable Emaman then began to chase Gulick onto the grounds of the Experimental Farm. When he was finally confronted by O'Reilly he was ordered to get to the ground, which he failed to do. O'Reilly formed the opinion he was ready to fight the officers. The taser was again applied, this time by Sergeant O'Reilly.

Gulick was taken to the Emergency Department at the Hospital where he was seen by an Emergency Room physician. While in the hospital it was reported he appeared to lose consciousness for approximately 30 seconds. The Emergency physician Doctor Viancourt stated to Constable Gulick that he wanted to continue to monitor him and wanted to take blood tests. Constable Gulick declined this and stated he wanted to be medically discharged. At approximately 11:00 p.m. he was discharged from the hospital and taken to the Elgin Street Police Station.

Constable Gulick was charged with a number of offences under the C.C.C. [Criminal Code of Canada]. On the 3rd day of February, 2009 he pleaded guilty to charges under Sections

270(2) (assault police officer); 264.1(2) (uttering threats);

145.1(a) (escape lawful custody) and section 430(4) (mischief - damage to property).²

The Penalty hearing took place over five days. Nineteen witnesses testified including Chief Vernon White, Sergeant Holly Watson, Sergeant James Heaphy, Constable Lauren Dupasquier, Constable Michael O’Reilly, Mrs. Gulick and Dr. Goodman. There were thirty- three exhibits admitted into evidence.

The Hearing Officer was provided with medical and treatment reports from Dr. Goodman; Dr. Vedalgo of Homewood Addiction Division; Ron Hendry, Group Therapy Counsellor at Rideauwood Addiction and Family Services; and, Bruce Johnston, Addiction Counselor at Rideauwood Addiction and Family Services.

The Hearing Officer received eleven letters of support on Constable Gulick’s behalf. Eight were from police officers and three from members of the community. The Hearing Officer also was provided with a summary of Constable Gulick’s personnel file, which included letters of commendation.

The Appellant’s Counsel proposed a penalty of demotion to fourth-class constable for one year subject to various conditions. The Prosecutor called for Constable Gulick’s dismissal.

On June 14th, 2010, the Hearing Officer issued a 51-page decision, ordering that Constable Gulick resign or be dismissed within seven days. It is that penalty which is the subject of this appeal.

Appellant’s Position:

Mr. Carroll submitted that the Hearings Officer:

1. Misapprehended evidence and made conclusions for which there was no factual basis. i.e. Constable Gulick had problems with both anger and alcohol and he was not in a state of “toxic psychosis” on May 22nd;

2. Placed undue emphasis on Constable Gulick’s failure to testify or apologize; and

3. Erred in concluding that the only course of action available was to terminate Constable Gulick’s

employment.

Mr. Carroll noted that the police officers who knew Constable Gulick testified that Constable Gulick was “calm, quiet and mild- mannered.” He asserted that the Hearing Officer not only failed to consider their testimony, but improperly reached the opposite conclusion.

Mr. Carroll noted that Mrs. Gulick did not testify that her husband had “explosive” anger. Rather, her evidence was that his anger caused her stress. Further, Dr. Goodman stated that he had been counselling the Appellant Constable Gulick primarily for life stresses and not for “explosive” anger.

Mr. Carroll also argued that the Hearing Officer misapprehended the evidence when he concluded that Constable Gulick had a longstanding drinking problem. This was particularly the case given Dr. Goodman’s observation that he did not know the extent of the Appellant’s alcohol consumption and the fact that none of the witnesses (other than Mrs. Gulick) had seen the Appellant drink to excess.

Mr. Carroll argued that the Hearing Officer committed an error when he disregarded Dr. Goodman’s assessment that Constable Gulick was in a state of “toxic psychosis” during the events of May 22, 2008 and thus not in control of his behaviour. The evidence indicated that his behaviour was out of the ordinary, which supported a finding that Constable Gulick was in an altered state.

Finally, the Hearing Officer erred in holding that Constable Gulick did not apologize or show remorse. There was evidence that Constable Gulick apologized several times, including: to Sergeant Watson on the day of the incident, by expressing remorse to Dr. Goodman and Bruce Johnston and by pleading guilty to both the Criminal and the disciplinary offences.

On the question of penalty, Mr. Carroll submitted that according to Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) the appropriate factors to be considered are the officer’s employment history and experience, recognition of the seriousness of the transgression, handicap, relevant personal circumstances and the potential for rehabilitation.

Mr. Carroll submitted that the Hearing Officer failed to consider the evidence that indicated that Constable Gulick suffered from the handicap of post-traumatic stress disorder and addiction to alcohol. As well, he failed to give sufficient weight to Constable Gulick’s long years of service and work experience.

As well, Mr. Carroll argued that the Hearing Officer did not consider the range of penalties available to him. Dempsey and Waterloo Regional Police Service (19 July, 1991, O.C.C.P.S.), Gulliver and Brantford Police Service (15 July, 1997, O.C.C.P.S.), Kleinsteiber and Ontario Provincial Police (17 April, 1996, O.C.C.P.S.) and Mason and Hamilton-Wentworth Regional Police Service (9 March, 2000, (O.C.C.P.S.)

Mr. Carroll noted that in Andrews and Midland Police Service (1

May, 2003, O.C.C.P.S.) the Commission stated that rehabilitation is a key factor in considering penalty and that only when

rehabilitation is impossible should the door to re-entry into the

police force be firmly closed.

He contended that there is case law that provides that even if an act is a serious offence, if it is an aberration, dismissal may not

be warranted. Guenette and Ottawa-Carleton Regional Police

Service (18 December, 1998, O.C.C.P.S)

Mr. Carroll submitted that the standard applied in this situation should be similar to that in Moraru and Ottawa Police Service (22

April, 2008, O.C.C.P.S.) where the Commission held that treatment of people with mental illness must be careful, mindful

and not excessively punitive, especially in situations where the individual acquired their disability on the job.

He asked us to quash the penalty and instead, impose a penalty of reduction in rank for however long we believe would be appropriate.

Respondent’s Position:

On behalf of the Respondent, Mr. Houston argued that the Hearing Officers conclusions and findings were proper and based on the evidence.

Mr. Houston noted that an important issue during the disciplinary hearing was the lack of objective confirmation of the quantity of alcohol, prescription and non-prescription substances that had been consumed by Constable Gulick on May 22, 2008. Constable Gulick was the primary source of disclosure.

Mr. Houston pointed out that there was no consistency among the witnesses with respect to the Appellant’s state of sobriety or intoxication. The officers who responded to the 911 call were in close proximity to the Appellant. They testified that they did not detect any odour of alcohol. He was not unsteady on his feet or slurring his words. Sergeant Watson, who acknowledged that she did not know Constable Gulick well, noted that his eyes were a bit glassy. Constable Sharma, the young officer who transported the handcuffed Appellant to the hospital prior to his attempted escape, testified that he detected the smell of alcohol from the rear of the cruiser. Mrs. Gulick could not provide first-hand evidence about what her husband might have ingested.

Mr. Houston noted that Constable Gulick refused to have blood tests done in the emergency room of the hospital, so there is no empirical evidence with respect to his state of intoxication or sobriety. He noted that Constable Gulick was sufficiently rational to agree to a tetanus shot because of the risk of infection from the Taser probes.

With respect to Dr. Goodman’s diagnosis that the Appellant was in a state of toxic psychosis on May 22nd, Mr. Houston noted that the psychologist only spoke briefly to Constable Gulick on the telephone and, in fact, advised the attending officers he did not feel the Appellant was a danger to himself. At the hearing, Dr. Goodman could not testify with any certainty what medication or alcohol Constable Gulick had consumed that day.

In light of the above, Mr. Houston asserted that it was within the scope of the Hearing Officer’s decision-making not to accept the diagnosis of toxic psychosis.

He also argued that the Hearing Officer did not err in concluding that Constable Gulick had anger problems as demonstrated by “several confrontations in the workplace.” Mr. Houston referenced the evidence relating to the Appellant’s interactions with senior officers, a recruit while he was employed with the Ontario Provincial Police, a supervisor in the Partner Assault Unit and a lawyer in the Crown Attorney’s office.

Mr. Houston submitted that the issue of disability and accommodation had been raised by the Appellant only in passing at the disciplinary hearing leaving the Hearing Officer with no evidence to substantiate any finding.

Leaving that aside, he asked us to consider the principle of shared responsibility in the realm of accommodation in Hall and Ottawa Police Service (5 December, 2007, O.C.C.P.S). Mr. Houston noted that, despite an ongoing counselling and treatment relationship with Dr. Goodman, at no time during his

Mr. Houston argued that this case is different from previous appeals the Commission has heard because of the seriousness of the Appellant’s actions as contained in the Agreed Statement of Facts, the multiple Criminal Code convictions, the absence of testimony from the Appellant and the lack of conclusive evidence of illness. Moraru and Dempsey

The Hearing Officer’s observation that Constable Gulick did not testify was factual. He made no finding about this, but referenced it as one element to be considered.

Mr. Houston submitted that the contention that the Hearing Officer’s reference to Constable Gulick’s failure to apologize was not an error. He heard in evidence that Constable Gulick’s only apology was made directly to Constable Watson and he did not apologize to any of the other officers with whom he fought or threatened. Mr. Houston argued that the Hearing Officer accurately assessed this evidence.

Mr. Houston submitted that what distinguishes Constable Gulick’s situation from Gulliver is the fact that the officer provided an apology and was forgiven by the victim. In fact, the victim indicated that he no longer had any concerns with Constable Gulliver. That is not the case here.

Mr. Houston argued that the Hearing Officer considered all of the relevant sentencing factors as outlined in Williams. Constable Gulick’s behaviour was so egregious that there was no penalty available other than dismissal. He has expunged his usefulness to his employer and has caused serious damage to the reputation of the Service and the confidence of the community.

He asked us not to interfere with the decision of the Hearing

Officer and to uphold the penalty of dismissal.

Decision:

It is well established that our role on appeal is not to second- guess the decision of the Hearing Officer but to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence and are articulated in a logical manner. Precious and Hamilton Police (2002), 3 O.P.R. 1561 (O.C.C.P.S) and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div.Ct.)

In an appeal of a penalty imposed, the standard of review is one of reasonableness. Has the Hearing Officer considered all of the relevant factors in a fair and impartial manner?

As has been stated by the Commission, in certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle or relevant sentencing factors have been ignored. Williams, Wilson and Ontario Provincial Police (20

November, 2006, O.C.C.P.S.), Favretto and Ontario Provincial Police (13 February, 2002, O.C.C.P.S.) and Karklins and Toronto Police Service (25 September 25, 2007, O.C.C.P.S.)

The key factors to be considered are the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the Service that would occur if the officer remained on the force. Additional mitigating or aggravating factors include the officer’s employment history and experience, recognition of the seriousness of the misconduct and any handicap or other relevant or personal circumstance, provocation, the need for general and specific deterrence and management’s approach to the misconduct in question. Williams

An appeal to the Commission is an appeal on the record. Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. We review transcripts of testimony and documentary evidence submitted during the

original proceeding; however, deference must be accorded to the Hearing Officer’s findings, unless examination of the record shows that his conclusions cannot reasonably be supported by the evidence. Blowes-Aybar and Toronto (City) Police Service, 2004

Carswell Ont 1583 (Div. Ct.)

On June 14, 2010 the Hearing Officer released his 51 page penalty decision. In that decision he set out the disciplinary allegations, Agreed Statement of Facts and summarized the evidence of the various witnesses and the submissions of counsel.

The Hearing Officer identified the key factors to be taken into account in imposing penalty:

The Tribunal has given careful consideration to the seriousness of the offences; the public’s trust in the police and possible damage to the reputation of this Police Service. I have also considered the officer’s recognition of the seriousness of the offences; the possibility of rehabilitation; the effect upon the officer and his family, as well as the effect on the investigation officers who dealt with this incident, together with specific and general deterrence.³

The Hearing Officer concluded: “The serious nature of these charges is apparent to everyone”⁴ and the “damage to the reputation of this Police Service is substantial”.⁵

We agree. It is hard to imagine conduct more egregious, potentially harmful or damaging.

On May 22, 2008 Constable Gulick failed his annual Use of Force re-qualification. He “went ballistic” and directed verbal abuse at training staff.

He went home and started drinking. His wife was so concerned that she came home from work. Constable Gulick smashed furniture, repeatedly stabbed a pillow, punched a hole in the wall and broke a telephone and pictures. A neighbour called 911 because she believed that Mrs. Gulick had been assaulted.

Initially, three police officers responded. One of the officers was a former supervisor from the Partner Assault Unit, where the Appellant worked.

When Constable Gulick was advised that he was going to be arrested, he turned combative, resisted, kicked two officers, punched another, uttered death threats, and grabbed for another officer’s gun.

As the Hearing Officer properly noted: “I find it intolerable that a serving police officer would act in this manner and would attempt to remove a handgun from a fellow officer while threatening him with bodily harm. Clearly, there was a potential in this situation for death or serious injury had Gulick been successful …”⁶

Constable Gulick had to be Tasered and subdued. He was handcuffed and placed in a cruiser. Constable Gulick attempted to kick the windows out. He was taken to a hospital where he bolted, escaped and ran across a busy road. He was chased and Tasered again.

As a result Constable Gulick was convicted of four serious criminal offences: assault peace officer, uttering threats, escape lawful custody and damage to property.

The evidence at the disciplinary hearing disclosed that these events had a serious impact on the officers involved. When asked about the long-term impact of being attacked by a fellow police officer, threatened with death and struggling with him to retain possession of a service weapon, they reported suffering from

nightmares, flashbacks, hyper-vigilance about their surroundings and having constant fear of repercussion by Constable Gulick. They even reported a fear of encountering Constable Gulick in a parking lot. One officer remains on extended sick leave, having been diagnosed with post-traumatic stress disorder the following year.

Any one of these actions would support serious discipline. Combined, in the absence of significant mitigation, they warrant dismissal.

It was suggested at the disciplinary hearing that Constable Gulick’s conduct on May 22nd was out of character because he was acting in a state of “toxic psychosis”. The Hearing Officer did not agree:

The only evidence of any consumption of prescribed and non-prescribed medication comes from the responses of Constable Gulick to Dr. Goodman. No test was conducted to determine what Constable Gulick had in his system at the time of the incident… I cannot accept that on May

22 of 2008 Constable Gulick was in “toxic psychosis”, that he suffered a lack of judgement and given the toxic brew, was unable to maintain rational thought or judgement.⁷

Certainly, based on the Record, there was evidence that

Constable Gulick was aware of his actions.

He was able to clearly report to his wife what had happened at the training facility. He was walking, talking and driving from one location to another in Ottawa. He carried on a lengthy conversation with his supervisor without evidence of impairment; he clearly recognized all of the police officers who attended at his house; he knew who he was and where he was; at the hospital

he consented to a tetanus shot but declined blood testing; and, he was released by the attending emergency room physician at his own request. The latter suggests that he was deemed medically fit to be discharged.

Based on the evidence before him, it was certainly open to the Hearing Officer to dismiss assertions that Constable Gulick’s actions during the incident were completely irrational due to an altered mental state.

Rather, the Hearing Officer found that the evidence pointed to a pattern of behaviour: “The problem Constable Gulick had was his ability to control his explosive anger in certain circumstances, as has been his history over a number of years.”⁸

Constable Gulick is a 25-year veteran of policing. He had worked in the Partner Assault Unit for many years and was undoubtedly aware of his myriad obligations as a police officer and as an employee of the Service. Each of his actions on May 22, starting with the interaction at the police training facility, shows a worrisome lack of judgment and control.

It was suggested that the Hearing Officer’s conclusion was an error given that several police officers testified that Constable Gulick was always “calm, quiet and mild-mannered.” They indicated they would work with him again. According to the Appellant, the Hearing Officer failed to give this testimony sufficient weight. However, evidence has to be examined as part of a whole and not parsed to fit a certain construct.

The Hearing Officer concluded that:

Constable Gulick’s behaviour on May 22, 2008 was clearly not an isolated incident. Through the evidence presented during the testimony of Dr. Goodman, Constable Gulick has had several

confrontations in the workplace during his policing career, as well as in the family environment, dealing with anger management and abuse of substances.⁹

Dr. Goodman’s notes contain numerous references to the Appellant’s anger and “temper” and at one point describe him as referring to himself as “an angry drunk”.¹⁰

The Hearing Officer also heard that early one morning in 2007, Constable Gulick drove to a police station and passed out, so drunk that he could not get home. Another officer drove him home, woke Mrs. Gulick and carried the Appellant into his house.

The evidence is also clear that Constable Gulick had a history of consuming alcohol as a teenager, engaging in drinking “binges on the weekend”.

The Hearing Officer observed: “It is said that what is predictable is also preventable and Gulick’s actions on May 22nd 2008 were indeed predictable given his prior history. However, had he listened, and acted upon, the professional and family advice offered to him over the past several years, this incident could have been prevented.”¹¹

With respect to the Appellant’s submission that the Hearing Officer did not consider the evidence that indicated that Constable Gulick suffered from post-traumatic stress disorder, these issues should have been addressed by Counsel for the Appellant at the disciplinary hearing.

Further, the record shows that Constable Gulick continued to carry out his work duties in a variety of assignments, including the Partner Assault Unit. None of his colleagues reported any apparent difficulty or evidence of mental health or physical

issues. His performance did not alert supervisors that he had either a disability or handicap.

While Constable Gulick’s difficulties handling stress and self- medicating might to some extent explain his behaviour, it cannot excuse it. He sought a certain measure of assistance from his therapist over a period of years; yet, he did not disclose his concerns to the extent that he was diagnosed as requiring a more extensive treatment program.

The Hearing Officer acknowledged that Constable Gulick had been undergoing counselling for his problems but, had “difficulty” with the “inability of Constable Gulick to deal with the stresses of life, even after going through years of therapy”¹². He was not persuaded by the evidence that Constable Gulick could safely return to policing.

Finally on page 50, the Hearing Officer offers his final comments on the rationale for his decision: “I must admit determining the career of a veteran police officer is not an easy task. However, I would be derelict in my duty, and unfair to all other members of this Police Service, if I were to inflict on them someone with all of these problems to continue to be a serving officer.”

Having assessed general deterrence, management response, the reputation of the Police force and the potential for rehabilitation, the Hearing Officer concluded that, on balance, the Appellant’s actions had brought his usefulness to the Service to an end.

The Hearing Officer concluded: “The extent of this misconduct was to such a degree that the suitability of Constable Gulick remaining a police officer in this Police Service has been nullified by his conduct in this case. He has denied his Oath of Office and neither this Police Service, nor the community it serves, can or will condone or tolerate a law enforcement officer acting in the manner described here.”

It is within the scope of the Hearing Officer’s mandate to reach this conclusion. We defer to his finding.

Constable Gulick did not testify. That is a fact. While it would have been instructive to hear his account of events, we accord no weight or relevance to the fact he did not testify. The fact that the Hearing Officer mentioned this in his decision, does not suggest that this on its own ultimately affected the decision.

We find that the Hearing Officer examined the appropriate aspects of the Williams test and carefully weighed the evidence according to the relevance.

There was a clear and direct path to the Hearing Officer’s decision. None of his findings were irrelevant, random or unsubstantiated.

The penalty of dismissal in the absence of resignation within seven days was available to the Hearing Officer. For the above noted reasons, we are satisfied that the Hearing Officer’s decision is reasonable, takes into account the relevant facts and principles and imposes a penalty consistent with similar infractions.

Accordingly, we uphold the judgement on penalty and this appeal is dismissed.

DATED AT TORONTO THIS 15th DAY OF APRIL, 2011

Murray Chitra

Zahra Dhanani

Hyacinthe Miller

Chair, OCPC

Member, OCPC

Member, OCPC

Footnotes

1. 1Name modified.
2. 2Exhibit 8. Numbering has been removed from the paragraphs and some have been merged to facilitate readability.
3. 3Penalty Decision, June 14, page 45.
4. 4Ibid., page 45.
5. 5Ibid., page 50.
6. 6Ibid., page 50.
7. 7Ibid., pages 47 to 48.
8. 8Ibid., page 48.
9. 9Ibid., page 49.
10. 10Exhibit, page 46.
11. 11Penalty Decision, June 14, 2010, page 50.
12. 12Ibid., page 47.