OCPC- #11-04
ONTARIO CIVILIAN POLICE COMMISSION REASONS FOR DECISION (AMENDED)
CONSTABLE DANIEL BARGH
Appellant
OTTAWA POLICE SERVICE
Respondent
Presiding Members:
Roy Conacher, Member
Hyacinthe Miller, Member
Appearances:
William Carroll, Counsel for the Appellant
Lynda Bordeleau, Counsel for the Respondent
Hearing Date: November 10, 2010
On November 13, 2009 Deputy Chief (retired) Terence Kelly (“Hearing Officer”) made findings of guilt against Constable Bargh on three counts of misconduct, namely; two counts of insubordination contrary to section 2(1)(b)(ii) and one count of deceit contrary to section 2(1)(d)(ii) of the Code of Conduct, Ontario Regulation 123/98 and therefore contrary to section 74 (1)(a) of the Police Services Act R.S.O. 1990, c.P.15 as amended (“Act”).
On April 9, 2010 the Hearing Officer imposed a penalty of reduction in rank from First-Class to Third-Class Constable for a period of one year. Upon completion of that term, Constable Bargh would be upgraded to Second-Class Constable and remain at that rank for a period of one year. Upon completion of that term, Constable Bargh would be returned to his current rank of First-Class Constable.
Constable Bargh appeals the finding of guilt on the charge of deceit and also appeals the sentence imposed by the Hearing Officer on all three counts of misconduct.
For the reasons set out below we dismiss the appeal against conviction on the charge of deceit and the penalty of demotion imposed.
Background:
Constable Bargh is a 29 year old police officer. He began his employment with the Ottawa Police Service (“Service”) in January, 2004. Following completion of courses at the Ontario Police College in April 2004, Constable Bargh was assigned to B Platoon, Central and over the next several years progressed to First-Class Constable. During the period when the events leading to these disciplinary charges occurred, Constable Bargh was assigned to patrol duties in the ByWard Market area in the City of Ottawa.
The Professional Standards Section of the Service received allegations from two Service police officers about potential misconduct involving Constable Bargh. An investigation was initiated. Constable Bargh was ordered to attend an interview on November 26, 2007 with Sergeant David Spicer.
Sergeant Spicer concluded that Constable Bargh had disobeyed lawful orders pertaining to the use of the Canadian Police Information Centre (“CPIC”) and Record Management System (“RMS”) and his responses to the questions put to him were wilfully false, misleading or inaccurate and designed to deceive.
A Notice of Hearing was issued and served on November 27, 2007. Constable Bargh was charged with five counts of misconduct. At the same time, Constable Bargh was advised that if misconduct was proven on clear and convincing evidence, the penalty of demotion or dismissal could be imposed.
The five counts included in the Notice of Hearing were:
Count One: Insubordination
That between the dates of February 1, 2005 and November 26, 2007, Constable Daniel Bargh did commit Insubordination in that he, without lawful excuse, disobeyed a lawful order pertaining to the access of CPIC …
Count Two: Insubordination
That between the dates of February 1, 2005 and November 26, 2007, Constable Daniel Bargh did commit Insubordination in that he, without lawful excuse, disobeyed an order pertaining to the access of the Records Management System for the Ottawa Police Service …
Count Three: Discreditable Conduct
That on or about the 29th day of November, 2006, Constable Daniel Bargh did commit Discreditable Conduct in that, while off duty, he acted in a disorderly manner or in a manner prejudicial to discipline, or likely to discredit the reputation of the Ottawa Police Service by associating with a person known to him to have a criminal record …
Count Four: Discreditable Conduct
That on or about the 29th day of November, 2006, Constable Daniel Bargh did commit Discreditable Conduct in that, while off duty and in a public place, he acted in a disorderly manner, or in a manner prejudicial to discipline, or likely to discredit the reputation of the Ottawa Police Service, by referring to a fellow Ottawa Police officer using derogatory and profane language while in the presence of a member of the public …
Count Five: Deceit
That on November 26, 2007, during a compelled interview with the Professional Standards Section, you committed Deceit in that you wilfully made a false statement pertaining to official duties to Sergeant David Spicer regarding your knowledge of and association with, a MP [name modified] …
Reference is made to the above counts in order to provide context for reviewing all of the evidence submitted to the Hearing Officer and assessing the adequacy of review by him of such evidence in making his findings on issues of credibility and in imposing penalty.
The Hearing:
The disciplinary hearing took place over 10 days. Eleven witnesses testified. There were 42 exhibits admitted into evidence. The Hearing Officer’s judgment was issued on November 13, 2009. The penalty decision was issued on April 9, 2010.
At both the investigative interview and at the disciplinary hearing, Constable Bargh acknowledged having received training on CPIC and RMS usage and policies at the Ontario Police College. He confirmed his familiarity with Service policies and orders limiting the use of both databases to police investigative purposes. He knew that these electronic systems were not to be used for personal reasons.
The Prosecutor presented computerized records showing that CPIC and RMS had been accessed by the Appellant in excess of 200 times. Those records showed that he had searched the names, vehicle information and licence plates belonging to MP, himself, other police officers, personal acquaintances and family members.
The rationale provided by the Appellant was that some of the searches were directly or indirectly related to his police duties or investigations. He also offered as justification the fact that, because CPIC was sometimes offline or ‘down’, some of the checks were run to test whether the system was currently operational. However, he was unable to explain a significant number of other searches.
Evidence was presented that on November 29, 2006, Constable Bargh was off duty and visiting a local bar in the ByWard Market, an area that he was assigned to patrol when on duty. He was observed by other police officers and members of the public in the company of MP, who was also known by the street name of P. Constable Bargh was alleged to have made a profane remark towards a fellow police officer who was in attendance at the bar.
When shown a photograph of MP by Sergeant Spicer and asked if he knew his name, the Appellant responded that he only knew the man’s first name and nickname, but did not know his surname. Later in the interview, Constable Bargh was asked a second time whether he knew the surname of MP and responded that he did not.
However, he acknowledged that he had been ‘out and about’ and had seen MP at various bars between 10 to 15 times since 2004 and had brief conversations and drinks with him. He also acknowledged that he had been ‘bar hopping’ with MP on one occasion and had given MP his personal cell phone number.
During both the investigative interview and the disciplinary hearing, Constable Bargh was questioned about the recorded searches of MP’s name and vehicle information on the CPIC and RMS systems. These were conducted by him on five separate occasions from November 2005 through July, 2007.
Constable Bargh’s responses led the Hearing Officer to conclude that the Appellant was less than forthcoming and was attempting to distance himself from any perceived close relationship with MP. The Hearing Officer found Constable Bargh guilty of deceit.
The Hearing Officer expressed the opinion that the relationship between Constable Bargh and MP was highly suspect, however he was not satisfied that there was clear and convincing proof that Constable Bargh had an ongoing association with MP or that he had uttered a profane remark.
The Hearing Officer found the Appellant not guilty on counts three and four.
Appellant’s Position:
Mr. Carroll submitted that count 5 involved two issues: Constable Bargh’s association with the person known as MP and his denial that he knew the full name of MP.
He submitted that the Hearing Officer fundamentally misapprehended the evidence and applied irrelevant considerations in arriving at the finding that there was clear and convincing evidence that Constable Bargh wilfully or negligently made false, misleading or inaccurate statements during the interview with Professional Standards.
Mr. Carroll submitted that the test for a finding of guilt on a charge of deceit was articulated in Perry and York Regional Police Service (1972), 1 O.P.R. 89 (O.P.C.). At page 92 of that case, ‘deceit’ was defined according to Black’s Law Dictionary as being
“a fraudulent and cheating misrepresentation, artifice or device, used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon.”
He submitted that this test was also referenced in McCoy and Fort Frances Police Force (1969), 1 O.P.R. 16 (O.P.C.) where an officer had altered a document contrary to the then Code of Offences. The Commission stated at page 19:
It would seem to us, therefore, that to convict an officer of altering a document, contrary to the Code of Offenses (sic) there must be “an intention to deceive”.
Mr. Carroll referred to Burgess and St. Thomas Police Service (1989), 2 O.P.R. 822 (O.P.C.) to support his submission that an inaccurate statement by itself, in the absence of proof of wilfulness or intent, will not support a conviction. In relation to statements in an Occurrence Report, the Commission noted at page 828:
It is a long mile, however, between the point at which one can find a statement inaccurate and the point at which one can find that a statement was made with intent to mislead or deceive.
He noted that a similar view was expressed in Graham and Ontario Provincial Police (1985), 2 O.P.R. 663 (O.P.C.) and Lloyd and London Police Service (May 20, 1999, O.C.C.P.S.).
Mr. Carroll argued that there must be an analysis of the state of mind and behaviour of an officer to assess whether the conduct was wilful or negligent. The standard of proof for conviction being ‘clear and convincing’ means that the evidence must be weighty, cogent and reliable. Precious and Hamilton Police Service (May 10, 2002, O.C.C.P.S.)
Mr. Carroll argued that the wording of count 5 contributed to the Hearing Officer misapprehending the evidence. He failed to address directly each of the two allegations but focussed instead on Constable Bargh’s knowledge of MP’s last name. When he turned his mind to a finding of guilt on the deceit charge, the Hearing Officer made no specific finding that Constable Bargh offered false statements about his association with MP. Mr. Carroll noted that the only evidence provided about the alleged association was volunteered by Constable Bargh.
Mr. Carroll challenged the Hearing Officer’s finding that Constable Bargh and MP had a personal relationship as it was based on the Appellant’s admission that MP had telephoned him once on his cell phone prior to an evening of bar hopping. He characterized this finding as leading to an irrelevant conclusion which had nothing to do with whether the officer was truthful in his interview with Sergeant Spicer. He pointed out that Constable Bargh freely admitted meeting MP through an acquaintance and, prior to hearing about MP’s possible involvement with illegal drugs, had associated with MP and provided MP with his personal cell phone number.
He submitted that while Constable Bargh could not provide a last name for MP during the interview, he never denied knowing MP, nor that he had ‘run’ MP’s name on CPIC and RMS. The Appellant never denied meeting MP at various bars. Mr. Carroll argued this evidence would not have been volunteered if Constable Bargh intended to deceive or distance himself from knowledge of MP.
The essence of Mr. Carroll’s argument is that, while there may have been inaccurate statements made by Constable Bargh during his interview with Professional Standards, there was no proof of any wilfulness or intent to deceive. The Appellant simply could not recall MP’s full name at the time.
Mr. Carroll submitted that there is a contradiction in the findings made by the Hearing Officer. He found that while the relationship between Constable Bargh and MP was highly suspect, he concluded that the evidence on the charge of associating with a person known to have a criminal record was not clear and convincing. Yet, the Hearing Officer appears to focus on his underlying concern with the relationship and the alleged attempt to cover up the officer’s knowledge of and association with MP.
Mr. Carroll asserted that the Hearing Officer misapprehended the answers given by Constable Bargh by failing to consider the context in which the questioning took place: the officer was not provided with any documents prior to the interview and had only been informed that the interview related to his use of the CPIC and RMS systems.
Finally, Mr. Carroll noted the Hearing Officer’s statement that: “the evidence strongly suggests that Constable Bargh was aware of the full name of [MP] and his nickname [P].”1 Mr. Carroll argued that “strongly suggests” does not meet the standard of weighty, cogent and reliable evidence. In effect, the Hearing Officer tried to justify his conclusion without a clear and cogent evidentiary foundation.
Mr. Carroll submitted that the penalty imposed was harsh and excessive, given Constable Bargh’s employment history. It was also inconsistent with other penalties imposed for similar offences. He cited Williams and Ontario Provincial Police (December 4, 1995, O.C.C.P.S.) and Reilly and Brockville Police Service (May 12, 1997, O.C.C.P.S.).
Further, the Hearing Officer failed to consider rehabilitation. Mr. Carroll submitted that a penalty of demotion for 6 to 9 months would be more appropriate. Sterling and Hamilton-Wentworth Regional Police Service (August 10, 1999, O.C.C.P.S.), Christian and Grbich and Aylmer Police Service (August 9, 2002, O.C.C.P.S.) and Wildeboer and Toronto Police Service and Nicola Aylin (November 7, 2006, O.C.C.P.S.)
He asked us to quash the finding of deceit and reduce the penalty accordingly.
Respondent’s Position:
On behalf of the Respondent, Ms. Bordeleau agreed that an intention to deceive is a required element for a finding of misconduct. She noted, however, it is only in rare circumstances that direct evidence exists that the officer charged with deceit intended to deceive.
In many cases, intention will be inferred or determined by considering the contextual circumstances. Lynn and Metropolitan Toronto Police Force (November 27,1980, O.P.C.), McDermott and Ontario Provincial Police (May 28, 1985, O.P.C.), Sterling and Hamilton-Wentworth Regional Police Service (August 10, 1999, O.C.C.P.S.), Gregg and Midland Police Service (December 11, 2001, O.C.C.P.S.), Andrews and Midland Police Service (May 1, 2003, O.C.C.P.S.), Cristiano and the Metropolitan Toronto Police Service (February 4, 1997, O.C.C.P.S.), Fortner and Goderich Police Force (August 18, 1975, O.P.C.), Lichtenfeld and Thunder Bay Police Service (December 9, 2003, O.C.C.P.S.) MacDonald and Metropolitan Toronto Police Force (December 3, 1980, O.P.C.) and Wilson and Ontario Provincial Police (May 7, 1982, O.C.C.P.S.)
She submitted that the Hearing Officer based his findings on the context established in the evidence before him. He found that both elements of the misconduct were established, namely, that Constable Bargh had made inaccurate statements and that he made these statements with the intention to deceive. He stated:
Based on the circumstances and the evidence, I am satisfied that Constable Bargh deliberately lied to Sergeant Spicer regarding his knowledge of [MP] in an attempt to distance himself from this individual.2
In response to the Appellant’s assertion that the totality of the elements of count 5 (i.e. false statements regarding knowledge of and association with MP) had to be established, Ms. Bordeleau argued that it is not necessary to prove each and every allegation in a count, particularly where an officer has been charged with multiple or alternative ways of having engaged in misconduct.
She submitted that it is sufficient to establish one of the allegations to support a finding of misconduct. Millar and Ontario Provincial Police (December 15, 1995, O.C.C.P.S.), Sterling (supra), Turgeon and Ontario Provincial Police (November 5, 1999, O.C.C.P.S.) and Mancini and Courage and Niagara Regional Police Service (August 12, 2004, O.C.C.P.S.)
Ms. Bordeleau challenged the assertion that the finding of guilt on the deceit charge was inconsistent with the finding there was not clear and convincing evidence of Constable Bargh’s guilt on the charge with respect to the alleged ongoing association with MP. She asserted the reasons show that the Hearing Officer was alert to the standard of proof and the requirement to have clear and convincing evidence on each allegation.
She noted that the Commission’s role on appeal is to review the Hearing Officer’s decision to determine whether the findings were reasonable based on the evidence. The Commission cannot retry the case or re-interpret the evidence. The demeanour of witnesses and circumstances going to the witnesses’ knowledge, powers of observation, judgment, memory and probability are all relevant factors for the Hearing Office to consider. Deference is to be given to a Hearing Officer on evidentiary findings and matters of credibility. Buckle and Ontario Provincial Police (May 11, 2005, O.C.C.P.S.), Groat and Quinte West Police Service (November 26, 2001, O.C.C.P.S.) and Grainer and Ontario Provincial Police (July 4, 2005, O.C.C.P.S.)
Ms. Bordeleau argued that the Hearing Officer’s decisions ought not to be interfered with, as his conclusions were based on oral testimony, documentary evidence and his assessment of the circumstances relevant to the allegations of misconduct.
She disputed the argument that the Hearing Officer failed to apply the appropriate standard of proof, submitting that his decision shows that he conducted a careful review of Sergeant Spicer’s and Constable Bargh’s testimony, the documentary evidence and the time-stamped electronic records of the numerous CPIC and RMS searches conducted by Constable Bargh.
With respect to the Hearing Officer’s use of the words “strongly suggests” when describing the evidence having to do with Constable Bargh’s knowledge of the full name and nickname of MP, Ms. Bordeleau argued that the reasons should not be subjected to microscopic examination or painstaking scrutiny. The language used by a lay tribunal should not be misconstrued as misstatements of legal tests. Boulis v. Canada (Minister of Manpower and Immigration) 1972 CanLII 4 (SCC), [1974] S.C.R. 875 (S.C.C.), Storey v. Ontario (Director, Disability Support Program) [2002] O.J. 1669 (Ont. Div. Ct.), Re DelCore and The College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2nd) 1 (Ont. C.A.), Galassi v. Hamilton (City) Police Service (2005), CarswellOnt 2362 (Ont. Div. Ct.) and Smith and Manuel and Toronto Police Service (March 6, 2003, O.C.C.P.S.)
Ms. Bordeleau argued that the Hearing Officer was clearly aware of and applied the required standard of proof, made appropriate and reasonable findings based upon the evidence and provided a logical analysis that was sufficient to support his conclusions. The reasons are supported by tenable explanations and satisfy the reasonableness standard. The decision falls within the range of acceptable outcomes which are defensible on the facts and law. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.)
With respect to penalty, Ms. Bordeleau submitted that even if we might have come to a different conclusion, we should only interfere with the penalty if there was an error in principle, relevant factors were ignored or the decision was unreasonable or would amount to an injustice. Favretto and Ontario Provincial Police (February 13, 2002, O.C.C.P.S.), Karklins v. Toronto Police Service (2010), CarswellOnt 567 (Ont. Div. Ct.), Quintieri and Toronto Police Service (October 29, 2001, O.C.C.P.S.), Lewin and Toronto Police Service (July23, 2001, O.C.C.P.S.) and Groot and Peel Regional Police Service (April 5, 2002, O.C.C.P.S.)
She challenged the assertion that the penalty was inconsistent with other decisions in similar cases. While consistency is a key principle in sentencing, each case contains different factual circumstances which also must be taken into account. Demotion was within the range of acceptable penalties that could be imposed based on Constable Bargh’s actions and history. Andrews (supra), Gregg (supra), Stitt and York Regional Police Service (February 28, 1997, O.C.C.P.S.), Parsons and Halton Regional Police Force (May 1, 1989, O.P.C.) and Coon and Toronto Police Service (April 10, 2003, O.C.C.P.S.)
She asserted that Constable Bargh’s actions clearly called into question his judgment and trustworthiness as a police officer. The Hearing Officer considered all of the relevant sentencing principles, including rehabilitation.
Ms. Bordeleau asserted that it is up to an accused officer to establish mitigating factors in order to reduce a potential penalty. Where no evidence is provided, the tribunal may consider mitigation only in a general way. Donald J.M. Brown, Q.C., David Beatty, Canadian Labour Arbitration (Canada Law Book, 2005, 4th ed.), Re Catholic District School Board of Eastern Ontario and Ontario English Catholic Teachers’ Association (2004), 2004 CanLII 94778 (ON LA), 123 L.A.C. (4th) 193 (Ont. Arb. Bd.), Hamilton (City) v. A.T.U., Local 107 (2006) 155 L.A.C. (4th) 337 (Ont. Arb. Bd.) and Re Malish (2005), CarswellAlta 2098 (Alb. L.E.R.B)
She submitted that no evidence was presented by Constable Bargh demonstrating rehabilitation or the possibility of rehabilitation as a mitigating factor.
In summary, Ms. Bordeleau asserted that the decision of the Hearing Officer was reasonable. His analysis was logical and his decision set out the evidence he relied upon in coming to the conclusion that Constable Bargh committed misconduct, namely deceit. She submitted that the decisions on both conviction and penalty should be upheld and the appeal dismissed.
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 (supra)
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? We should only intervene if there has been an error in principle or relevant sentencing factors have been ignored. Favretto (supra) and Karklins (supra).
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 (supra)
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, particularly on issues of credibility, unless examination of the record shows that the Hearing Officer’s conclusions cannot reasonably supported by the evidence. Blowes-Aybar and Toronto (City) Police Service (2004), CarswellOnt 1583 (Ont. Div. Ct.) The issues before the Hearing Officer were:
Whether, on November 26, 2007, Constable Bargh made inaccurate, misleading or false statements pertaining to official duties during the investigative interview with Sergeant David Spicer of Professional Standards; and,
If the answer to question one was affirmative, were those statements made with intent to deceive.
Constable Bargh acknowledged knowing that searches conducted on police database systems for a purpose other than official police duties were prohibited by Service policies and orders. This removes any doubt that he was unaware of the terms, conditions and restrictions for using police electronic databases.
The exhibits tabled at the hearing established that he conducted over 200 name query checks, vehicle queries, criminal record queries, CPIC and RMS checks using his assigned personal access code. Some of those checks were conducted from the mobile data terminal in police vehicles while he was on duty. Several of the queries on the same individual were conducted within the space of one hour on the same day.
The Hearing Officer reviewed and weighed the documentary evidence and the testimony of each witness at some length in his 33 page Decision. He presented an accurate, balanced chronology of the significant evidence.
Starting on page 28 of his Decision he presented the elements of the analysis supporting his conclusions. He found at page 29 that:
… it is obviously clear from the evidence given by Constable Daniel Bargh that he is fully cognizant of the confidentiality of CPIC and the RMS system…
… during his evidence-in-chief and also in cross-examination, Constable Bargh also readily admitted that on numerous occasions he referenced names of police officers and civilians alike on the above-mentioned confidential systems, but he could offer no explanations for conducting these checks.
The Hearing Officer concluded that “Constable Bargh did not give a passing thought to the purposes of the CPIC and RMS system and gave no thought to confidentiality, nor the consequences, of improperly accessing information from these systems due to his own personal desire to obtain information. It would, or should, be common sense to any serving police officer that the information contained on CPIC and the RMS system is subject to the Oath of Confidentiality and Secrecy and is to be used solely for legitimate police purposes only.”3
The Hearing Officer found that that Constable Bargh’s explanations for conducting repeated searches on casual acquaintances, friends, their families, fellow officers, himself and his own family were simply not credible. It was certainly open to the Hearing Officer to conclude that Constable Bargh’s rationale that he was checking to determine if CPIC was online or following up on ongoing police investigations in which he was not directly involved was implausible. Indeed, for many searches, Constable Bargh was unable to provide any justification at all.
When the totality of Constable Bargh’s testimony during the compelled interview and at the hearing and the evidence of the other witnesses is examined, we are satisfied that there was clear and convincing evidence to permit the Hearing Officer to conclude that Constable Bargh was not truthful.
We do not accept the argument that Constable Bargh should have been given advance notice or documentation on the line of Professional Standards’ questioning. We agree with Counsel for the Respondent that this would have been counterproductive and could have negatively impacted the integrity of the interview.
Constable Bargh was given numerous opportunities to clarify his recollections. He was asked twice in the interview if he knew MP’s full name and each time he denied that he did. The pattern of his responses can reasonably lead to a finding that he intended to deceive Professional Standards, to minimize his familiarity with MP and to avoid admitting wrong-doing.
The evasions, failed recollections and obfuscation throughout the interview with Sergeant Spicer supports the Hearing Officer’s conclusions that Constable Bargh was familiar with MP and that he was aware of MP’s identity and full name at the time of the interview. We can find no inconsistencies in the Hearing Officer’s reasoning on this point.
When confronted with the CPIC and RMS search records, Constable Bargh eventually acknowledged conducting five separate searches of MP’s full name and street name on November 25 and December 4, 2005, April 10 and May 6, 2006 before meeting MP at a local bar in November, 2006.4
The Appellant could not explain how he came to know MP’s full name in order to permit him to conduct these searches. Constable Bargh was asked if he was aware that MP had a criminal conviction related to drug offences and his response was that he was not aware. We find this to be at odds with the answers he gave to Sergeant Spicer about his reasons for searching MPs names and vehicle information.
The Hearing Officer accepted Constable Bargh’s admission that he had been contacted by MP on his cell phone, had 10 to 15 contacts with MP at various bars and that the two of them had gone bar hopping using MP’s vehicle. He drew a reasonable inference when he stated:
It is clear from this response that there had been previous contact between Bargh (sic) and [MP] as [MP] was calling Bargh on his personal cell phone.5
In reference to the final database search on July 27, 2007, the Hearing Officer stated:
The last check made by Bargh in relation to [MP] was several months prior to his interview with Sergeant Spicer where he was shown a picture of [MP] and denied knowing his full name.
However, it is abundantly clear from this exhibit, and the evidence presented in this Tribunal, that Constable Bargh was quite familiar with [MP] and evidence strongly suggests that Constable Bargh was aware of the full name of [MP] and his nickname [P].6
The Hearing Officer found the Appellant’s association with MP to be “highly suspect”, but concluded that the evidence before him was not clear and convincing proof that Constable Bargh had an ongoing association with a person ‘known to him’ as having a criminal record.
The finding that Constable Bargh was guilty of deceit in relation to his version of events relating to the searches of MPs name is not inconsistent with the lack of a finding of guilt about associating with a ‘known’ criminal.
With respect to the alleged derogatory comments about a fellow officer, the Hearing Officer found no clear evidence that Constable Bargh made such comments. Accordingly, he found the Appellant not guilty of that allegation.
We agree that it is not necessary to prove each and every allegation to uphold a conviction for deceit when there are multiple disciplinary charges that set out inter-related elements of alleged misconducts. The five charges against the Appellant stem from inter-woven incidents and patterns of behaviour over an extended period of time. They must be examined as part of a whole.
The finding that Constable Bargh wilfully made false statements pertaining to the multiple CPIC and RMS searches, as well as regarding his knowledge of MP, is sufficient to uphold the conviction on the charge of deceit. Sterling (supra), Millar (supra) and Turgeon (supra)
The assertions that Constable Bargh simply could not recall MP’s name, that he was somehow misled by not being given advance notice of Professional Standard’s line of questioning regarding MP, that he agreed with every factual circumstance put by the investigating officer and that his responses were not those of someone trying to deceive are not borne out by a careful review of the transcripts.
We do not agree that Sergeant Spicer engaged in a “gotcha” interview. There was no attempt to confuse or entrap the Appellant. He was given opportunity to respond to a series of clearly stated questions; he was allowed time to reflect; he was permitted to take a break and collect his thoughts. The argument that Constable Bargh forgot or was not sure about his interactions with MP or the reasons for searching not only MPs first and last name, his own name or the names of a dozen other people including family, colleagues and acquaintances, simply has no merit, whether or not he had the complete record of what he had done.
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.
We are mindful that the Hearing Officer is a layperson and the language expressed in his reasons may not accord with the wording we would otherwise employ. That being said, a few misstated words that do not go the heart of a decision do not constitute a reversible error. Zellers Inc. v. Royal Cobourg Centres Ltd. (2001), 156 O.A.C. 133 (Ont. Div. Ct.)
Finally, fairness requires that the penalty be consistent with prior disciplinary cases involving similar types of misconduct.
When assessing the penalty, the Hearing Officer decided to collectively address all three charges and resulting convictions; namely, the deceit and the two counts of insubordination.
With respect to the nature and seriousness of the misconduct, he stated:
The Tribunal has given careful consideration to the seriousness of the offences …
These are serious charges, whether considered singularly or in total. Both counsel have presented many exhibits dealing with dispositions on CPIC misuse and it is accepted that in general they are dealt with by way of several days off. However, in these particular matters there are multiple breaches, both of the CPIC and the RMS system. In fact CPIC was checked in excess of 200 times. The Tribunal views this most seriously and regards it as a form of stalking by continuous surveillance. Additionally, there is deceit of Constable Bargh in his deliberate attempt to mislead Sergeant David Spicer when being interviewed on these matters.
In totality, the seriousness of these charges is evident to everyone.7
Clearly, the Hearing Officer considered the submissions that the penalty would normally be several days off. However, he found that the circumstances in this case were much more serious than normal. In other words, the seriousness of the offences was the primary consideration. We agree.
In terms of consistency of penalty, we considered the cases submitted by Counsel. We are mindful of decisions in which deceit and abuse of the CPIC system were at issue and more severe penalties, up to dismissal, were imposed. As such, a penalty of demotion falls within the available range of sanctions. Parsons (supra) and Coon (supra)
The Hearing Officer expressed strong concern about potential lack of trust and confidence in the Service by members of the public, with respect to the abuse of CPIC and RMS information systems. He stated:
The public must be confident that police officers will strive to set the example for those in the community. Anything short of this will be seen as a contradiction and serve no other purpose but to undermine the efforts of all police officers and the explicit goals of the Service.8
He observed that repeated breaches of conduct and wilful disregard of Service rules and regulations, the police officer’s oath of office and core values of the Service could not be dealt with by a few days off. He also concluded that when misconduct is obviously a deliberate act, the punishment should be more severe. This was a conclusion open to him.
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, including his record of service, awards, favourable correspondence from fellow officers and members of the public. He pointed out that Constable Bargh’s record also included several prior disciplinary offences.
In summary, the Hearing Officer properly found that Constable Bargh, by his own admissions, deliberately violated Service rules and regulations on multiple occasions for personal reasons and not for police related duties. When he was caught, he repeatedly dissembled and lied.
There are a number of elements which support upholding a severe penalty: the seriousness of the deceit; the repeated examples of poor judgment with respect to MP; the extraordinary volume of unauthorized searches of CPIC and RMS; the searches of fellow officers, family members and innocent civilians; the fact that Constable Bargh has had two previous disciplinary infractions; and, a pattern of behaviour that demonstrates a wanton disregard for his Oath of Office.
In our opinion, the Hearing Officer appropriately and logically analyzed the evidence and applied the appropriate sentencing factors to reach a penalty consistent with the seriousness of the offences and we can find no manifest error. Trotter v. College of Nurses (Ontario) (1991), 44 O.A.C. 302 (Ont. Div. Ct.) 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 conviction on the charge of deceit and the penalty imposed on all three counts of misconduct are dismissed.
DATED AT TORONTO THIS 22nd DAY OF FEBRUARY 2011.
Roy Conacher Member, OCPC
Hyacinthe Miller Member, OCPC