ONTARIO CIVILIAN POLICE COMMISSION REASONS FOR DECISION (AMENDED)
OCPC-#11-05
CONSTABLE HARINDERPAL MAMAK Appellant
OTTAWA POLICE SERVICE Respondent
Presiding Members: Murray Chitra, Chair Zahra Dhanani, Member Hyacinthe Miller, Member
Appearances: W. Vincent Clifford, Counsel for the Appellant Lynda Bordeleau, Counsel for the Respondent
Hearing Date: February 15, 2011
On September 21, 2009, Deputy Chief (Retired) Terence Kelly (the “Hearing Officer”) made findings of guilt against Constable Mamak for two counts of misconduct, namely; insubordination contrary to section 2(1)(b)(ii) and breach of confidence contrary to section 2(1)(e)(i) of the Code of Conduct, Ontario Regulation 123/98.
On July 29, 2010 the Hearing Officer imposed a penalty of resignation within seven days or summary dismissal.
Constable Mamak appeals the findings of guilt. He also appeals the sentence imposed by the Hearing Officer.
For the reasons set out below we dismiss the appeal against both convictions and uphold the penalty.
Background:
On August 20, 2007, members of the York Regional Police Service (“York”) were conducting surveillance in Brampton on Paul1, the reputed leader of a criminal organization. During that surveillance, a member of the York team came to believe that he and his surveillance vehicle had been compromised.
On August 30, 2007, an officer with Professional Standards of York sent a fax to the Ottawa Police Service (“Ottawa”). He provided information that York’s Intelligence Office had received notification of a ‘silent hit’ which indicated that on August 20, 2007 the licence plate number of a surveillance vehicle had been checked on the Canadian Police Information System (“CPIC”) by an Ottawa police officer.
Constable Mamak was found to be that officer.
On August 31, 2007, Sergeant Spicer of the Ottawa Professional Standards Unit contacted York. He was advised that York was actively conducting surveillance on Paul as part of an ongoing joint forces investigation project. He was also advised that a surveillance officer had been driving an unmarked vehicle as part of this investigation when its licence plate was checked by Constable Mamak.
Sergeant Spicer confirmed that the licence check had been done by Constable Mamak. Arrangements were made with Criminal Intelligence Service Ontario (“CISO”) to assign an undercover police officer to contact Constable Mamak for an investigative ‘sting’.
The officer was provided with a licence plate number and the cell phone number of Constable Mamak.
On November 15, 2007, the undercover officer called Constable Mamak. The officer identified himself as a “friend of Paul's” and requested a CPIC check on behalf of “Paul”. Constable Mamak performed a CPIC check on the plate number as requested by the undercover officer. That same day, the undercover officer left a voice message for Sergeant Spicer advising that he had contacted the Appellant and obtained the vehicle information.
Sergeant Spicer subsequently contacted the Royal Canadian Mounted Police (“RCMP”) to request the assistance of a Punjabi speaking undercover officer as Constable Mamak is Punjabi speaking and so were the leaders of the criminal organization under investigation. On December 9 and 10, 2007, the selected undercover RCMP officer made a number of attempts to contact the Appellant “on behalf of Paul” and left several voice messages in Punjabi and English. These calls were not returned.
On December 12, 2007 Sergeant Spicer called Constable Mamak at home to inform him that he was the subject of a chief’s complaint and to request that he attend Professional Standards for an investigative interview. He did so.
The Appellant was provided with information documenting his CPIC checks, cautioned and asked a series of questions.
That same day, Constable Mamak was served with a Notice of Disciplinary Hearing. The two counts included in the Notice were:
That on or about August 20, 2007, Constable Harinderpal Mamak did commit Insubordination in that he without lawful excuse disobeyed a lawful order pertaining to the access of CPIC …
On or about the 15th day of November 2007 Constable Harinderpal Mamak did commit a breach of confidence in that he without lawful excuse did divulge information retrieved from CPIC system knowing that it is his duty to keep secret …
The Hearing:
The disciplinary hearing took place over several days in June of 2009. A number of witnesses testified, including three York officers, Sergeant David Spicer of Ottawa, the CISO undercover police officer, the RCMP undercover officer, Sergeant Paul Mamak, Dr. Mini Mamak and the Appellant. There were 16 exhibits admitted into evidence.
Constable Mamak pled not guilty. Essentially, it was his defence that:
- He may have provided some “inaccurate” answers during his interview with Sergeant Spicer on December 12, 2007 but this was only because he was “stunned”, “in shock” and “thought he was going to jail”. He did not intentionally lie or mislead.
- During the course of his normal duties he conducts many licence checks and the search of the licence number of the York surveillance vehicle on August 20, 2007 was “a simple error in entry and nothing more”;
- He received a “weird” unsolicited phone call on November 15, 2007 indicating that “Paul” wanted a licence plate checked. He assumed that “Paul” was his brother, Sarnia Police Service Sergeant Paul Mamak;
- Given that his brother was a member of the Sarnia Police Service Emergency Response Team, he had concerns about his safety and conducted the licence check, but did not provide any information to the undercover CISO officer;
- He received a series of messages in Punjabi and English on December 9 and 10, 2007 but did not return any of these calls; and
- He spoke to his brother and his sister, concerning these matters.
The Hearing Officer’s conviction decision was issued on September 21, 2009.
The penalty portion of the hearing took place in February, March, and April of 2010. Several character witnesses testified on Constable Mamak’s behalf. As well, two training officers of the Halton Regional Police Service (“Halton”) and Constable Mamak’s coach officer gave evidence. Submissions were made. The penalty decision was released on July 29, 2010.
The Appeal:
Just days prior to the hearing of this Appeal, Counsel for the Appellant submitted a Supplementary Book of Authorities. Counsel for the Respondent expressed concern that this material had been filed well past the date required by the Commission Rules of Practice and that she did not have the opportunity to prepare a response, should one be required.
We noted that a number of the cases contained in the supplementary Book of Authorities were also contained in the Respondent’s Book of Authorities.
While Mr. Clifford had indicated that he would not be referring to the other cases, we ruled that Ms. Bordeleau would be permitted to file any additional case law she felt was necessary following the conclusion of the appeal hearing.
Appellant’s Position:
Mr. Clifford, on behalf of the Appellant, argued that the Hearing Officer erred in:
- Concluding that there was clear and convincing evidence that Constable Mamak was guilty of insubordination and breach of confidence;
- Making findings of fact not supported by the evidence; and
- Assessing credibility.
Mr. Clifford reminded us that our role in an appeal from a finding of misconduct is not to interfere with a Hearing Officer’s decision unless there is a manifest error, an error in principle or relevant evidence has been overlooked. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) and Armstrong v. Peel (Regional Municipality) Police Services 2003 CanLII 37924 (ON SCDC), [2003] O.J. No. 3437 (Div. Ct.)
He submitted that the language in Armstrong has various possible meanings, but primarily, when there is an assessment of evidence by a trier of fact, it must be more than a perfunctory review.
He agreed that we should not make a microscopic examination of every line of a decision or search for benign errors, but asked us to consider Ryan v. Law Society (New Brunswick) [2003] 1 S.C.R. 247 (S.C.C.) and undertake a probing analysis when assessing the Hearing Officer’s reasons supporting his decision.
He noted that, despite the amount of evidence presented and the “twists and turns” that occurred this was not a complex case. There were three pivotal dates: August 20, November 15 and December 12, 2007.
Mr. Clifford took the position that Constable Mamak was always checking vehicles while he was on duty and that the check on the surveillance vehicle’s licence plate on August 20, 2007 was an error.
Mr. Clifford noted that there was no evidence that Constable Mamak received any benefit as a result of that CPIC transaction or that the York investigation had been in any way compromised. On the latter point, he noted the York undercover officer’s evidence that he hadn’t been “burned” while conducting surveillance and suggested that it should have been given more weight.
Mr. Clifford also submitted that the Hearing Officer engaged in “speculative findings” and used “apocalyptic language” when describing what might have happened had the undercover officer been compromised.
As to the events of November 15, 2007, Mr. Clifford asserted that the Hearing Officer failed to complete a thorough examination of the conflicting testimony of Constable Mamak and the undercover CISO officer.
The undercover officer testified that Constable Mamak was asked to run the plate number and subsequently provided him with the vehicle information. The Appellant testified that he did not provide any information to the undercover officer. However, as he was concerned about the safety of his police sergeant brother, he accessed CPIC. Mr. Clifford asserted that the fact Constable Mamak’s conduct was motivated by concern for his brother’s safety should have been accorded greater consideration by the Hearing Officer.
Mr. Clifford asked us to consider that during the disciplinary hearing, Defence Counsel spent a considerable amount of time dealing with specific points. It was incumbent on the Hearing Officer to address those points.
By way of example, he noted the corroborating testimony of the Appellant’s brother and sister that Constable Mamak had contacted them about a “weird” phone call he had received from someone claiming to be with “Paul”, that Paul was being followed and that he wanted a plate run. Their testimony and credibility, he argued, was not refuted by the Hearing Officer nor was it given proper weight as relevant evidence that the Appellant’s version of events was correct.
He noted that Constable Mamak was a junior officer who had neither been reprimanded nor provided with further instruction on proper note-taking, despite identified deficiencies. Yet, the Hearing Officer stated that he found the evidence of “partially filled entries and blank entries” to be “appalling and particularly disturbing”.
Mr. Clifford stated that Constable Mamak’s inaccurate responses to Sergeant Spicer’s questions on December 12, 2007 were the result of lack of advance notice of the investigative interview, limited information about the nature of the allegations and lack of time to prepare. Faced with being investigated for serious misconduct and being made aware that the Regional Crown was to be consulted with respect to possible criminal charges, it is not surprising he had some difficulty recollecting what had happened. The differences between his responses then and his testimony at the disciplinary hearing can be explained by the passage of time.
On the question of penalty, Mr. Clifford noted that the key factors to be weighed are: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, the need for deterrence or provocation and the damage to the reputation of the Service should the officer remain on the force.
He pointed to the lack of discipline on the Appellant’s service records, the positive evaluations of his coach officer and letters of commendation from members of the community. There was no evidence presented to show that Constable Mamak had any association with criminals.
Mr. Clifford argued that the Hearing Officer erred in concluding that the Appellant demonstrated a lack of remorse and did not recognize the gravity of the allegations against him. He failed to give due consideration to the prospect of rehabilitation or the statements of support from the community.
On his own initiative, Constable Mamak found and completed a note taking course offered by Halton. That he did not disclose to the Halton training officer that he was suspended could be considered a “strike against him”, but for the Hearing Officer to apply an unreasonable standard of “absolute truthfulness” as the foundation for concluding that the Appellant could not be reformed, was an error.
In summary, Mr. Clifford argued that the Hearing Officer failed to properly weigh the totality of the evidence. In concluding there was sufficient evidentiary foundation for a conviction, he committed a reversible error. Alternatively, he misapprehended the evidence, with the result that his findings are unsupportable. The penalty assessed was unreasonable, unjust, unfair and manifestly excessive.
Respondent’s Position:
On behalf of the Respondent, Ms. Bordeleau noted that, in administrative and labour law, which is our forum, proceedings are not driven by criminal law principles.
Ms. Bordeleau reminded us of the standard of review to be applied by this Commission in disciplinary appeals. We should give deference to the findings of the Hearing Officer as a lay tribunal. It was his role to assess credibility. Armstrong and Toronto (City) Police Service v. Blowes-Aybar [2004] O.J. No. 1655 (Div. Ct.)
She argued that if the Hearing Officer’s decision is not unreasonable or if he has not committed a manifest error, then we ought not to enter into re-weighing or re-evaluating the evidence, or to substitute our own findings. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 (S.C.C.)
She submitted that our role as an appellate body is to consider the role of the trier of fact, examine his findings and determine their reasonableness, rather than conducting a microscopic scrutiny. Ryan and Zellers Ltd. v. Royal Cobourg Centres Ltd. [2001] O.J. No. 3792 (Div. Ct.)
Further, we must read the Hearing Officer’s decision as a whole, rather than deconstructing it. We may intervene only in extraordinary circumstances, if we conclude that the Hearing Officer’s decision cannot reasonably be supported on the evidence. Wilson and Ontario Provincial Police (20 November, 2006, O.C.C.P.S.) and Hampel and Toronto Police Service (14 August , 2008, O.C.C.P.S.)
Ms. Bordeleau pointed out that the York Regional Police officer became aware through a ‘silent hit’ notification that a check had been made on a surveillance vehicle in Brampton. This surveillance vehicle was being used in the investigation of a criminal organization involved in the trafficking of drugs and firearms. The licence plate number had been checked by Constable Mamak, using his unique cadre number.
Ms. Bordeleau argued that the Hearing Officer was not required to find that the undercover York officer had actually been compromised. Rather, Constable Mamak had to demonstrate that there was a lawful reason for the CPIC check on that particular plate number in Brampton.
Constable Mamak indicated that the check had been an error. However, Ms. Bordeleau pointed out that the Appellant’s notebooks contained no mention of the error and in fact, his duty book had a number of blank pages.
She submitted that Constable Mamak had not been charged with neglect of duty for his note-taking. More to the point, Constable Mamak testified that he had received training on note-taking at the Ontario Police College, but upon being assigned to active duty, he had been instructed to leave gaps in his notebook, to facilitate inserting notations at a later date. However, his coach officer denied that any officer would ever have been given this type of instruction, as it contravened the law and Ottawa Police Service policy.
Ms. Bordeleau submitted that the issue of Constable Mamak receiving no benefit from sharing the information he retrieved from CPIC was irrelevant, because he had not been charged with corrupt practice.
Ms. Bordeleau pointed out that Constable Mamak’s responses during the interview with Sergeant Spicer on December 12, 2007 differed from his testimony at trial.
She submitted that, on the insubordination charge, the Hearing Officer properly linked Service policy with Constable Mamak’s CPIC abuse. The foundation for the charge was the IT User Form signed by the Appellant confirming that he understood the restrictions for access and use of information contained in the CPIC system.
Ms. Bordeleau argued that having heard the evidence, the Hearing Officer applied the appropriate tests and based his findings on the preponderance of probabilities. She requested that we uphold the conviction for insubordination. Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 (B.C.C.A.)
As to the events of November 15, 2007, Ms. Bordeleau submitted that credibility was a live issue and it was up to the Hearing Officer to decide whether Constable Mamak or the undercover CISO officer was telling the truth. She noted that on December 12, 2007 during his interview with Sergeant Spicer, Constable Mamak said he could not remember a phone call from the undercover CISO officer. However, he had a detailed memory of this phone call when he testified on June 10, 2009.
Constable Mamak was questioned about why there were differences between his versions of what occurred and that of the undercover CISO officer. Ms. Bordeleau noted that no objection was raised by Defence Counsel about this line of questioning at the disciplinary proceeding. It was up to the Hearing Officer to determine what weight he would assign to any response or explanation.
With respect to the fairness of Sergeant Spicer telephoning Constable Mamak in the morning and requiring him to attend an interview that same day, Ms. Bordeleau pointed out that Sergeant Spicer explained the purpose of the interview, outlined the investigative steps he was going to take and indicated there was a possibility of criminal charges. He read the caution to the Appellant, asked if any explanations were required and on several occasions, repeated that the Appellant was not required to speak with him. She argued that the evidence showed there was nothing coercive or unfair.
Ms. Bordeleau rejected the notion that the length of time devoted to specific witnesses in a disciplinary proceeding was an indicator of the weight to be accorded to their testimony, noting that it was unusual for two of the subject officer’s siblings who were otherwise uninvolved in the events giving rise to the discipline, to testify to his version of what occurred. She argued that their testimony was irrelevant to the elements that had to be proven to establish Constable Mamak’s guilt, because all they could speak to was what the Appellant had told them.
With respect to the Hearing Officer’s decision, Ms. Bordeleau noted that he used language such as “one of the reasons”, as he developed the foundation for his decision. She argued that, according to case law, he need not refer to every piece of evidence before him, but must be clear on how he reached a tenable conclusion. She reminded us of the legal principle that a trier of fact does not commit an error by not providing a direct assessment of testimony. Ryan and Dunsmuir
In conclusion, she asked us to uphold the Hearing Officer’s findings on the breach of confidence charge.
Ms. Bordeleau submitted that the Hearing Officer’s penalty decision was reasonable and addressed the appropriate dispositional factors. They included: the serious nature of the misconduct, public trust, damage to the reputation of the service, recognition of the seriousness of the misconduct, potential for rehabilitation, the effect on the officer, specific and general deterrence and the officer’s service record.
Due to the short tenure of Constable Mamak as a police officer, there was no extensive, unblemished employment record that would be a mitigating factor. Insubordination and breach of confidence are at the highest level of seriousness. As the Commission has noted, the seriousness of a single act of misconduct can justify the penalty of dismissal. Karklins and Toronto Police Service (25 September, 2007, O.C.C.P.S.), Krug and Ottawa Police Service (21 January, 2003, O.C.C.P.S.) and Armstrong
Ms. Bordeleau submitted that CPIC is an investigational tool that must be protected against improper or unauthorized use. Maintaining the public’s trust in the sanctity of police information systems is of paramount importance.
Ms. Bordeleau argued that the Hearing Officer correctly noted the impact of Constable Mamak’s actions on the reputation of the Ottawa, Halton and York Regional police services. Further, she submitted that police officers must be able to rely on one another. The Appellant’s misrepresentation of his status to the Halton training officer placed this trust at risk. She also submitted that Constable Mamak’s usefulness and operational value were irreparably damaged by his false testimony during the investigative interview and in his testimony.
Finally, Ms. Bordeleau submitted that the Hearing Officer weighed the relevant evidence before him and assessed the officer’s employment history, including letters of commendation. There was no evidence that spoke to the potential for rehabilitation, whether Constable Mamak realized the seriousness of his actions or was remorseful. Dismissal was a penalty available to the Hearing Officer. Galassi and Hamilton Police Service (3 September 2003, O.C.C.P.S.), aff’d 2005 Carswell Ont. 2362 (Div. Ct.)
Ms. Bordeleau submitted that for the reasons stated above the Commission should uphold the penalty decision of the Hearing Officer.
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.
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, Favretto and Karklins
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 factors to be considered are mitigating or aggravating circumstances which 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. We do not have the advantage of hearing and observing the witnesses as they testify. Although we review transcripts of testimony and documentary evidence submitted during the original proceeding, deference must be accorded to the Hearing Officer’s findings, unless examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence.
We are aware that we are not to effectively retry the case and substitute our findings of credibility. Blowes-Aybar
In the matter before us, the decision of the Hearing Officer is detailed. After summarizing the key points heard in evidence and reviewing his notes and exhibits, the Hearing Officer found that “credibility is at the heart of the prosecution’s case”. We agree.
We also find that he conducted a detailed analysis and properly weighed the relevant evidence before him in reaching his findings.
With respect to the charge of insubordination, he noted the concerns of the two York detectives involved in the surveillance of the criminal organization. He found that, “throughout all the evidence given by these witnesses, a consistency was apparent that they supported each other’s evidence in the essential areas.”2
There is no dispute that an Ottawa police officer using Constable Mamak’s unique identification code had checked a York surveillance vehicle licence plate on August 20, 2007.
The Hearing Officer went on to examine the Appellant’s testimony that on that day, due to the visit of the President of the United States, he was more vigilant in his duties and “checked a lot more vehicles”.
The Hearing Officer noted that the Appellant checked only eight vehicles that day, far fewer than records showed he would normally check.
He also found that Constable Mamak provided different evidence to Sergeant Spicer and during the disciplinary hearing. At the interview on December 12, 2007 he advised Detective Spicer that he received a phone message on August 20, 2007:
If I recall it was more along the lines like, “I’m a friend of Paul’s. Like we’re up here for training and, uh, there’s this car that’s been following him all the way from … Sarnia.” And he was like, “Do you want to run his plate?” But like I never called him back but I admit that I ran it for myself to kind of see who’s following my brother but it didn’t make sense. Like I never called … 3
During his disciplinary hearing on June 10, 2009, Constable Mamak repudiated these admissions to Sergeant Spicer, stating that he was “mixed up”, “had no contact with anyone on August 20th”, “it was a coincidence”, “it was a mistake”, and “it happens” and the search was a simple “error”.
The Hearing Officer addressed the argument that the entry of York surveillance vehicle was an error, finding that the uncorrected single entry of that number indicated that the Appellant was confident of its correctness.
As well, during his testimony, the Appellant was shown cellular telephone records showing that he had received six calls on August 20, 2007. He testified that they were from his girlfriend. The Hearing Officer further found that the Appellant’s failure to recollect his official duties was “transparent and totally unacceptable”. This was viewed in the context of his clear recollection of the numerous calls from his girlfriend while he was on duty.
The Hearing Officer observed that duty-book notes also speak to Constable Mamak’s credibility and reliability, the accuracy of his recollections and his overall attention to detail in his operational duties.
For the period November 1 to 22, 2007, Constable Mamak’s notebooks contained 11 totally blank pages and 8 partially blank pages.4 He had made no notations about the telephone calls or vehicle checks that were the subject of his disciplinary hearing. The Hearing Officer found it “appalling and particularly disturbing” that Constable Mamak had not filled out his duty notes, stating that the empty pages challenged his “usefulness and credibility”.
As a former senior police officer, the Hearing Officer had the necessary knowledge and experiential foundation to reach this conclusion. We agree that, without corroboration, a witness will experience difficulty proving their version of events; however, the failure to properly record his work activities through notebook entries was only one factor considered.
Assessment of demeanour is also within the Hearing Officer’s purview. He observed that under cross-examination by the Prosecutor, Constable Mamak “displayed discomfort and was evasive in some of his answers” and “appeared to resent some of the … questions, which were properly put to him”. He noted his “lack of composure” and his uncertainty recalling what he had said to Sergeant Spicer, his brother Sergeant Mamak and the undercover CISO police officer.
At the interview of December 12, 2007 Constable Mamak denied receiving a phone call on November 15, 2007 asking him to check a licence plate. When he was shown the electronic record of the licence check that he made on that date, he indicated that he did not remember because “I don’t think I’d remember a plate I ran yesterday.” 5
However, some eighteen months later at the disciplinary hearing, Constable Mamak had a clear memory of receiving the call and checking the plate. He provided a rationale for the check and denied providing any information to the caller.
In contrast the undercover CISO officer testified:
I dialled the phone number [Constable Mamak’s cell phone]. A male party answered, said “hello”. Then I spoke. And I said, “Bob?” [Constable Mamak’s nickname] The male said “yeah”. I then said, “it’s Bobby Gill from Toronto. I was with Paul and I’m sitting outside here in Lindsay”– referring to Lindsay Jail. “Paul wanted to get a plate checked.” The male responded, “who is this?” Then I again responded, “I’m a friend of Paul’s, Bobby Gill. Paul said this car was following him before this shit happened to him.” The male then told me to hold on. And there was a short pause. The male came back on the phone and said, “what’s the plate”. I then gave him the plate that was provided to me by Sergeant Dave Spicer … There was another short pause. And the male came back on the phone and asked me, “Is it a rental?” And I responded, “I don’t know.” And the male then said, “comes back to Avis Car Rental in Ottawa.” I then asked him – and then I said, “no name to it”, in a question manner. The male said “no”. I then said, “okay, thanks, ciao”. And I hung up the phone with him. 6
Constable Mamak’s explanation of the discrepancy between the two versions of events was that the undercover officer was lying; “the phone call did not happen that way” and suggested the officer must have found out the vehicle information either through CPIC or from Sergeant Spicer.
Mr. Clifford asked us to consider that when the name “Paul” was mentioned, the Appellant associated that name with his brother, a police officer working at another service. Due to his supposed concerns about officer safety, Constable Mamak ran a CPIC check on the vehicle plate.
This explanation was evidently rejected by the Hearing Officer. That is certainly understandable. It defies belief that a junior police officer receiving information from a stranger that he interpreted as a possible threat not just to another officer, but to an officer who was also his brother, did not immediately alert either a supervisor in Ottawa or his brother’s employer about the “weird” telephone call.
Instead, he testified that he went about his business and telephoned his siblings later that day. He testified that he called his sister at 6 p.m. and described the conversation. She suggested that it might be “a practical joke or something, very odd – said not to worry about it.” She instructed him to call his parents and his brother, Paul. He spoke with his brother at 7:30 on November 15. Evidence showed that Constable Mamak initiated no further inquiries or follow-up, nor did his brother Sergeant Mamak.
The Hearing Officer properly did not accord any weight to the testimony of Constables Mamak’s siblings, as they had no direct involvement and could only repeat what they had been told by the Appellant.
The Hearing Officer was aware of the evolution of Constable Mamak’s recollections and properly deduced that there were only two witnesses whose testimony was relevant to what had occurred: Constable Mamak and the undercover officer. He committed no error by not accepting the evidence of the Appellant’s brother and sister.
The Hearing Officer noted that the Appellant tried on numerous occasions to deflect responsibility. He rejected the Appellant’s assertions that the undercover officer’s notebook entries were wrong, that both the undercover officer and his former coach officer were lying and that he had been trained to leave blank or unsigned pages in his duty note books, as preposterous.
As the trier of fact, the Hearing Officer is mandated to assess credibility and weigh the relevant evidence before him. In his decision, he summarized the evidentiary elements he considered and showed how they informed his conclusion. We find no error in his approach or his finding that based on the evidence, Constable Mamak was not credible. Our review of the evidence also supports this finding.
We also agree with the Hearing Officer’s conclusion that the Appellant’s evidence was illogical and inconsistent with the preponderance of probabilities. He referenced the “O’Halloran test” and noted his duty as a Hearing Officer to assess conflicting witness testimony by examining the consistency of their stories in the context of the preponderance of probabilities.
With respect to Mr. Clifford’s argument that the Hearing Officer’s conclusions were unreasonable and not based on a thorough analysis of all elements of the evidence, we are mindful of the following, from Ryan, supra:
If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. It also means that a reviewing court should not seize on one or more mistakes which do not affect the decision as a whole. It is important to remember that there will not often be only one “right answer” to an issue reviewed against the reasonableness standard.7
The Hearing Officer committed no manifest error in not providing a list or reference to every piece of evidence before him. Rather, he identified the evidence he relied on, analyzed the salient facts and constructed a reasonable decision. In doing so, he pointed out why he found specific evidence to be cogent and did not ignore relevant evidence. Woolaston v. Canada (Minister of Manpower & Immigration) 1972 CanLII 3 (SCC), [1973] S.C.R.102 (S.C.C.)
When the totality of Constable Mamak’s testimony during the compelled interview and at the hearing and the evidence of the other witnesses is examined, we are convinced that there is clear and convincing evidence that Constable Mamak was insubordinate and committed a breach of confidence. He failed to follow a lawful order with respect to use and confidentiality of CPIC and had no lawful excuse.
The Hearing Officer reviewed and weighed the documentary evidence and the testimony of each witness at some length in his penalty decision. The factors he considered were: the serious nature of the offences, the public’s trust in the police and possible damage to the reputation of the Service, the officer’s recognition of the seriousness of the offences, the possibility of rehabilitation, the effect on the officer and his family, his record of service, specific and general deterrence.
The Hearing Officer properly concluded that abuse of CPIC is a serious offence. CPIC is relied on by police officers in the performance of their duties. The restricted use and the sanctity of the CPIC database goes to the heart of officer safety. Unauthorized use cannot be condoned and must be deterred.
While there was only circumstantial evidence that the York surveillance vehicle may have been compromised, and there were no factual findings of any link between the Appellant and a crime, it was not an error for the Hearing Officer to assess the seriousness of the CPIC breach. The risk articulated by the Hearing Officer is one that cannot be tolerated by police management.
The Hearing Officer noted that no evidence had been presented to indicate that the Appellant had received any benefit; however, he found that breaching Service rules governing the strict confidentiality of CPIC information and then passing that information to unauthorized persons had the potential to put officers’ lives in danger. He stated: “Constable Mamak’s behaviour had the potential to place several police officers in harm’s way and a major police investigation into jeopardy.” 8 We agree.
The Hearing Officer became aware during the penalty portion of the hearing that the Appellant had arranged to have private instruction through Algonquin College and take a course with Halton to improve his note-taking skills. He testified that he had informed the Halton training officer of his disciplinary status.
Two Halton training officers testified that at no time did Constable Mamak inform them that he was suspended. Further, one Halton officer stated that if he had known the Appellant was a suspended officer, he would not have been allowed to take the course.
The discrepancy between the Appellant’s and the training officers’ testimony concerned the Hearing Officer. He noted that it demonstrated a pattern of untruthfulness on the part of Constable Mamak and showed a “lack of remorse”. We agree.
We note that the Hearing Officer reviewed the possibility of rehabilitation and considered both the positive and negative elements of the Appellant’s employment history as well as favourable correspondence. He noted that the letters of support from the community spoke primarily to the individuals’ familiarity with Constable Mamak as a “close family member and friend” and that the letters of commendation spoke to his ability to provide “quality service to the community”.
In acknowledging that mistakes may be tolerable because they are correctable, the Hearing Officer concluded that wilful acts of disobedience are another matter. By his actions, Constable Mamak wilfully disregarded Service rules and regulations, breached his Oath of Office and the core values of the Service.
The Hearing Officer related his findings to the facts in evidence and case law. He assessed the appropriate sentencing factors, finding that the Appellant had been untruthful under oath, lacked remorse or recognition of the gravity of the allegations and had failed to act in accordance with his training. Prevention of further serious breaches of conduct by the officer was a paramount consideration.
While there may have been a range of outcomes available to the trier of fact, our role is to determine, after a somewhat probing analysis, that the Hearing Officer’s reasons were tenable and support his decision. We find that the reasons support the conclusion that Constable Mamak is guilty of insubordination and breach of confidence and that, through his own actions he has expunged his usefulness to the Service. Ryan and Zellers
The Hearing Officer considered the submissions on penalty but found that, as a whole, the circumstances in this case were much more serious than the cases presented by the Appellant.
In terms of consistency of penalty, we considered the cases submitted by counsel in oral argument and in their briefs of authorities. We are mindful of decisions in which abuse of the CPIC system was an issue and more severe penalties, including dismissal, were imposed. The penalty of dismissal falls within the available range of sanctions. Parsons and Halton Regional Police Force (1 May 1, 1989, O.P.C.), Coon and Toronto Police Service (10 April 2003, O.C.C.P.S) and Krug
Taking the reasons for the Hearing Officer’s decision in their entirety, we conclude that there has been no misinterpretation of the evidence, no misapplication of law or other manifest error that would justify our intervention in the finding of guilt. His judgment and sentencing decisions pass a test of reasonableness.
The Hearing Officer appropriately analyzed the evidence and applied the appropriate sentencing factors to reach a penalty consistent with the seriousness of the offences. We can find no manifest error. Trotter v. College of Nurses (Ontario) [1991] 44 O.A.C. 302 (Ont. C.A.) and Woolaston v. Canada (Minister of Manpower & Immigration) 1972 CanLII 3 (SCC), [1973] S.C.R. 102 (S.C.C.)
Accordingly, both the appeal against convictions and the penalty imposed are dismissed.
DATED AT TORONTO THIS 13th DAY OF APRIL, 2011
Murray Chitra, Chair, OCPC Zahra Dhanani, Member, OCPC Hyacinthe Miller, Member, OCPC