Barlow v. Ottawa Police Service, 2011 CanLII 101564

OCPC #11-10

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Barlow v. Ottawa Police Service, 2011 ONCPC 9

BETWEEN:

CONSTABLE WILLIAM BARLOW

APPELLANT

-and-

OTTAWA POLICE SERVICE

RESPONDENT

DECISION

Panel: David C. Gavsie, Chair Dave Edwards, Vice Chair Hyacinthe Miller, Member

Hearing Date: July 7, 2011

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, ON M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances

Allan O’Brien, Counsel for the Appellant

Lynda Bordeleau, Counsel for the Respondent

Overriding Order

1. At the commencement of the disciplinary hearing, Counsel for the Respondent and Counsel for the Appellant submitted motions to close the hearing to the public, to protect the identity of a confidential police informant (the “Informant”). Following review of the submissions, the Hearing Officer consented to the preliminary motions. All pertinent aspects of the disciplinary hearing were held in camera.

2. For the same reasons, the Hearing Officer’s Reasons for Decision and Reasons for Disposition were appropriately altered and redacted to protect the identity of the Informant.

3. Based on requests from Counsel that the same rationale of protecting the identity of the Informant existed with respect to the disciplinary appeal, on June 17, 2011, the Commission ordered that the appeal should also be heard without members of the public present. That order was confirmed at the commencement of the appeal hearing.

Introduction

4. On June 2, 2010 Constable William Barlow (the "Appellant") was found guilty of four counts of Neglect of Duty, two counts of Breach of Confidence, two counts of Insubordination and one count of Discreditable Conduct contrary to the Code of Conduct set out in Ontario Regulation 123/98, as amended, enacted under the Police Services Act, R.S.O. 1990, c.P.15, as amended (the "Act").

5. Constable Barlow is appealing the penalty of immediate dismissal from the Ottawa Police Service (the “Service”), imposed by Superintendent Robert J. Fitches (Ret.) (the "Hearing Officer") on November 25, 2010. He asked us to overturn the penalty imposed by the Hearing Officer, and instead assess a penalty of reduction in rank for whatever period of time the Commission deems appropriate.

Summary Decision

6. For the reasons set out below, we dismiss the appeal.

Background

7. Constable Barlow joined the Service in April 1999. At the time of the events giving rise to this appeal, he was 37 years old. He has held the ranks of police constable and acting Sergeant.

8. The Service’s Professional Standards Section (the “PSS”) received information from another police officer that confidential information about a search warrant had been improperly disclosed to a police informant. An extensive internal investigation was initiated in September 2007. On March 10, 2008, the Appellant was served with a Notice of Disciplinary Hearing.

9. The eleven charges set out in the Notice can be summarized as follows:

i. Neglect of Duty - between October 11th, 2006 and September 24th, 2007, for failing or neglecting to properly document and account for contacts with an informant, contrary to policy.

ii. Neglect of duty -- between October 11th, 2006 and September 24th, 2007, for, without lawful excuse on more than one occasion while on duty and off duty, meeting with an informant in a manner contrary to Service policy.

iii. Breach of confidence -- between October 11th, 2006 and September 24th, 2007, for disclosing Ottawa Police Records Management System (RMS) information to an informant, contrary to Service policy.

iv. Insubordination -- between October 11th, 2006 and September 24th, 2007, for disobeying a lawful order pertaining to the access of CPIC.

v. Deceit -- on or about August 15th, 2007, for knowingly entering false information in an official Investigative Action Report pertaining to recovered stolen property.

vi. Neglect of duty -- for failing or neglecting to properly account for recovered stolen property, contrary to policy.

vii. Breach of confidence -- for releasing information about a matter connected with the Service, specifically notifying an informant, who was an unauthorized person, of an ongoing police operation, contrary to policy.

viii. Deceit -- for knowingly making a false statement in an official police record regarding the location of a stolen vehicle, contrary to policy.

ix. Neglect of duty -- for, without lawful excuse, failing to follow proper procedure regarding the recovery of a stolen vehicle.

x. Insubordination -- between September 21st, 2007 and September 24th, 2007 for, without lawful excuse, failing to obey a lawful order from a superior not to communicate with an informant.

xi. Discreditable conduct -- between October 11th, 2006 and September 2nd, 2007, for acting in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Service by jeopardizing the safety of an informant for unauthorized purposes.

10. On March 6, 2008, the Appellant was given notice that if misconduct was proven on clear and convincing evidence, the penalty of dismissal or demotion may be sought.

The Disciplinary Hearing:

11. The hearing took place over a period of 11 days, from April 22, 2009 to March 24, 2010. There were seven witnesses for the prosecution, including the Informant. Constable Barlow testified on his own behalf. Three officers were called to provide character evidence.

12. A total of forty-two exhibits were filed in evidence. These included emails, call summaries, general occurrence reports and internal police service documentation and telephone records.

13. The Hearing Officer also reviewed 20 articles, commendations and other positive documentations from the Appellant’s personal file. Correspondence was also received from three individuals, including a former supervisor.

14. The Hearing Officer’s reasons for decision were released on June 2, 2010. He found the Appellant guilty of nine of the eleven charges of misconduct. No convictions were registered for charges 5 and 8, Deceit. On November 25, 2010, the Hearing Officer released his decision as to sanction, at which time he ordered that the Appellant be dismissed from the Service.

The Appeal Hearing: Appellant’s Submissions

15. Mr. O’Brien’s arguments focussed on one point, namely: that the Hearing Officer did not properly consider Constable Barlow’s ability to be rehabilitated and reintegrated into the Service because he failed to properly consider the testimony of the three character witnesses who appeared before him; and, he reached his decision on a flawed finding based on the Appellant’s testimony.

16. The Appellant is a university graduate, married, with children. Over his policing career, he has been recognized for performing his duties in a professional manner, his expertise dealing with individuals suffering from mental illness, his fundraising activities and community involvement. Mr. O’Brien submitted that the Appellant’s conduct with the Informant was uncharacteristic. The misconduct represents a “small slice” of the work the Appellant was doing and should be viewed as isolated incidents in the context of his previous good judgment over the duration of his career.

17. Mr. O’Brien drew our attention to the book of Sentencing Materials presented to the Hearing Officer. There were 20 positive media articles, emails and letters of appreciation or support from community members, colleagues and senior officers. The writers spoke about the “excellent job”, “commendable work in relation to an attempt suicide” and “level of professionalism” shown by the Appellant. He was acknowledged to be adept at dealing with persons with mental health issues or in difficult situations. A fellow officer and a long-time professional acquaintance wrote about the Appellant’s determination and professionalism, trustworthiness, integrity, dedication and honesty.

18. Counsel highlighted the September 2010 email from Peter Linegar, Constable Barlow’s former supervisor, who stated that he “was totally taken aback when I learned of Wil’s suspension and some of the allegations. Wil is an honest person who tries to do his best to please, sometimes to a fault….Everyone makes mistakes in their careers…what ever (sic) Wil has done was never for his own gain or advancement.”

19. Mr. O’Brien asserted that the Hearing Officer erred in concluding that Constable Barlow’s testimony about the debrief reports was “evasive, misleading and selective in its content”. The conclusion that he was less credible was based on a mistaken assumption about the time when the reports had been completed. In fact in his testimony, the Appellant was correcting that mistaken assumption.

20. Mr. O’Brien submitted that this assumption led to the Hearing Officer’s flawed conclusion that the officer had a low potential for rehabilitation. Further, he noted that before imposing a penalty of dismissal, “every attempt should be made to consider the possibility of rehabilitation, particularly when an officer has a good employment record, unless the offence is egregious and unmitigated.” Karklins v The Chief of Police- Toronto, 2010 ONSC 747 at para. 21, Ontario (Provincial Police) v. Favretto (2004), 2004 CanLII 34173 (ON CA), 72 O.R. (3d) 681 (C.A.)

21. Mr. O’Brien referenced the Hearing Officer’s failure to properly apply the “usefulness” test for dismissal. Guenette and Ottawa Carleton Regional Police Service (1998) 3 O.P.R. 1305 (OCCPS).

22. The character witnesses testified to their belief that the Appellant would be accepted should he be returned to the workplace. Mr. O’Brien noted that they indicated they would welcome the Appellant back and that they were willing to work with him. He argued that the Hearing Officer committed a reviewable error in failing to give the positive testimony from three members of the Service and retired Sergeant Linegar’s correspondence sufficient weight as mitigation when considering reintegration to the Service.

23. Mr. O’Brien submitted that the Hearing Officer unreasonably mischaracterized the testimony of the three officers. He erred by interpreting their comments that it would take time for Constable Barlow to rebuild trust among his colleagues as uncertainty that he could be reintegrated. He argued that there was no evidence before the Hearing Officer that if the penalty was to be varied to a demotion, the Appellant would not be accepted back by his colleagues. Further, police officers are not a cohesive group; not all of them would be upset to the same degree.

24. According to Mr. O’Brien, it is obvious that the Appellant’s serious errors in judgment led the Hearing Officer to incorrectly conclude that dismissal was the only option. Counsel submitted that the type of conduct for which the Commission has upheld dismissal is usually limited to the most serious misconduct such as a conviction for a Criminal Code offence or deliberate acts that intentionally put members of the public or fellow officers at risk.

25. Mr. O’Brien suggested that the Appellant’s “enthusiasm and drive” eclipsed his common sense. There was no evidence he embarked on his course of conduct for professional gain. In fact, the Appellant had already been recommended for promotion.

26. Counsel submitted that Constable Barlow did not intend an affront to Inspector Gallant’s authority when he failed to obey his order to cease contact with the Informant. His explanation that he was trying to stop the Informant from “bailing” from witness protection is worthy of acknowledgement. Mr. O’Brien argued that, if not for the charge of breach of confidence for disclosing operational information and the charge of discreditable conduct for jeopardizing the safety of an informant, we would likely not be adjudicating an appeal of a dismissal. He submitted that there are gradations along the safety/risk continuum and it was not reasonable to suggest that the behaviour would be repeated.

27. The Appellant admits that he made a serious error in judgment, that his actions were out of character. Further, he said that the disciplinary proceedings and long suspension have had a significant impact on him, his career and his family. He has learned from what he has gone through. Constable Barlow wants the opportunity to redeem himself and to prove that he is an officer of which the Service can be proud.

28. With respect to deterrence, Mr. O’Brien argued that a reduction in rank would send a strong message. He asked that we revoke the dismissal and substitute a demotion to a lower rank, for whatever period of time we deem just.

Respondent’s Submissions:

29. Ms. Bordeleau reminded us that when reviewing a hearing officer’s decision, the standard to be used is one of reasonableness. We must be satisfied that the penalty was not unreasonable, that upholding the penalty would not amount to an injustice or unfairness and that, giving due regard to the opinion, reasons and expertise of the Hearing Officer, all relevant factors have been properly and impartially considered. Ontario Provincial Police v Favretto, supra, leave to appeal refused CarswellOnt 1665 (S.C.C.) paras. 32 to 34, 50. Karklins v. Toronto Police Service, supra, at para. 10.

30. She submitted that the Hearing Officer was careful and thorough in assessing the relevant dispositional factors in the context of the evidence before him. The seriousness of the misconduct drove his determination that dismissal was an appropriate penalty.

31. This is a unique case in which all nine findings of guilt relate to how the Appellant dealt with an informant. There are no other cases that speak to the issues raised here. Ms. Bordeleau submitted that the Hearing Officer dealt with a range of risks presented in the evidence: to the Informant, to Constable Barlow, to fellow officers involved in day-to-day policing, to colleagues involved in the Tactical Unit incident, and to public safety. His conclusion that the Service cannot accept the risk of a police officer who was aware of, but who chose not to follow Service protocols, who disclosed information about ongoing police investigations and high-risk operations to the Informant, was correct.

32. Ms Bordeleau submitted that the Hearing Officer completed a full and complete assessment of the suitability of the Appellant continuing as a member of the Service. He balanced the factors he considered relevant and articulated the appropriate mitigating and aggravating factors. Ms. Bordeleau argued that, on its own, the seriousness of the Appellant’s misconduct could be the basis for a penalty of dismissal. Krug and Ottawa Police Service, (January 21, 2003, OCCPS).

33. With respect to the argument that the Appellant’s conduct was out of character, she argued that he knowingly embarked on a course of inappropriate action for an extended period of time, rather than a committing a single act attributable to human frailty. Guenette, supra. This was an aggravating factor.

34. Ms. Bordeleau submitted that Constable Barlow was familiar with Service policies and procedures with respect to informants. However, he deliberately engaged in a series of breaches that constituted serious misconduct. She noted that the Hearing Officer referenced the evidence of Constable Tanguay, an officer from the Intelligence Unit who was very familiar with the requirements of informant-handling. He testified that in 2005-2006, the Appellant had worked with several informants. He had received coaching on the need for a cover officer, the danger of meeting alone with an informant, and the importance of proper, comprehensive and timely documentation.

35. She argued that the Hearing Officer’s decision reflects his awareness that officers who commit misconduct may have had no documented performance problems or history of discipline. In some situations, that unblemished work history could be of assistance in determining penalty. However, he concluded that, in light of the seriousness of the multiple counts of misconduct, the Appellant’s positive work history did not provide sufficient mitigation.

36. The Hearing Officer’s conclusion that Constable Barlow failed to exercise good judgment in his dealings with the Informant over a period of time is reasonable, based on the charges and the totality of evidence. Ms. Bordeleau further submitted that the Hearing Officer had before him evidence substantiating that the Appellant showed a wanton disregard for his safety, the safety of officers in the Service and the OPP and members of the public. He deliberately disobeyed the lawful orders of his superiors. From his testimony, Constable Barlow still does not appear to appreciate what he has done.

37. Ms. Bordeleau pointed to the testimony of Inspector Delany and Sergeant Maloney regarding the exercise of the search warrant by the Tactical Unit. The officers stated that the operation would have been aborted had they known the element of surprise had been compromised. They spoke about the involvement of officers from the OPP as well as the Service in the Project and the importance of maintaining trust among police agencies. The risk to the 19 officers involved and to members of the public, was considerable.

38. She noted that the Hearing Officer carefully detailed the uniqueness of the case before him. He weighed the good faith testimony of the Appellant’s police officer friends, a professional acquaintance and a former supervisor about the potential for rehabilitation and reintegration to the Service. In the context of his knowledge of the policing culture, the Hearing Officer, as a former senior officer, was familiar with the high value placed on trust, confidentiality and adherence to Service procedures and policies. He heard that the Appellant’s actions had been discussed at the police association bar and that concerns had been expressed by other officers.

39. On balance, the positive evidence was insufficient to outweigh the evidence supporting multiple counts of serious misconduct in a wide variety of circumstances. The Appellant’s breaches of the integrity of policing operations could not be remedied. Ms. Bordeleau submitted that coming to the conclusion that Constable Barlow “would not be welcomed back” showed an understanding of the dynamics of policing and was not an unreasonable conclusion, taking into account testimony expressing concerns about the unauthorized sharing of confidential police information and that there would be “fences to mend””.

40. With respect to dismissal as a penalty, Ms. Bordeleau reminded us that there were nine findings of guilt. Each of the charges was serious. Constable Barlow’s lack of judgment, lack of regard for proper procedure and lack of trustworthiness over time, go to character and his suitability to continue as a police officer. She submitted that it is not necessary to have a finding of guilt on criminal charges to support dismissal when the conduct is egregious, demonstrates a wilful disregard for Service policies and is not in accordance with standards. Constable Harinderpal Mamak and Ottawa Police Service, (April 13, 2011, OCCPS).

41. Ms. Bordeleau contended that no manifest errors were committed by the Hearing Officer, and that the record contains considerable evidence which supports the findings of guilt and the penalty of dismissal. She asked us to dismiss the appeal.

Reasons for Decision

42. Constable Barlow appeals the penalty of dismissal imposed by the Hearing Officer.

43. The standard of review for the Commission with respect to a hearing officer's interpretation of the law is correctness. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 Ont. C.A.)

44. The standard of review for the Commission with respect to factual findings is reasonableness. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 at para 47:

“In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."

45. Past decisions of the Commission have described this standard of review for penalty appeals in a less technical way, noting that the Commission’s role on appeal is not to second-guess the decision of a hearing officer but to review their 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 (OCCPS) and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div.Ct.)

46. 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.)

47. Constable Barlow’s appeal is very narrow. It is based upon one ground. The Appellant asserted that the Hearing Officer did not properly consider his ability to be rehabilitated and reintegrated into the Service. Two arguments were offered to support this position.

48. First, counsel for Constable Barlow argued that the Hearing Officer failed to properly consider the testimony of three police officers who were confident that the Appellant would be able to reintegrate into the Service.

49. In addition to positive comments such as he was “someone I am proud to know…and would continue to be honoured to work beside” and “I believe very strongly that Will should continue to be a member of the Ottawa Police”, the character witnesses stated: “there would be some…growing pains”, “he would have some work to do regaining the trust”, “some of the things they say ... may be a little bit negative..”, “it may be a little more harsh when he first comes on...”.

50. While the in camera nature of the proceeding imposed constraints on the level of background detail the three character witnesses could receive about the misconduct, the Hearing Officer was sensitive to the positive regard in which they held their colleague. He commended them for their loyalty to their friend.

51. We note that one officer had worked with the Appellant for a few “intense” days during a missing person’s investigation. Another witness had only been a member of the Service for five and a half years. Another prevaricated when asked about the seriousness of disclosing CPIC information to an individual who was not a member of the Service. All three acknowledged that they considered the Appellant to be a friend.

52. The Hearing Officer heard and observed the witnesses. It was reasonable for him to determine that a witness was “rather less certain about how other officers might feel about Constable Barlow returning to active duty.” We conclude that the Hearing Officer made no error in his assessment of the Appellant’s fellow officers’ testimony.

53. Furthermore, character evidence is not determinative of the potential for rehabilitation in the face of grievous misconduct and countervailing dispositional considerations. It is one factor of many to be assessed. Carson and Pembroke Police Service (2001), 3 O.P.R. 1479 (OCCPS), Seamons and Durham Regional Police Service (September 28, 2006, OCCPS).

54. The second argument offered to support Constable Barlow’s position was that the Hearing Officer’s assessment of the Appellant’s credibility was flawed.

55. Generally, credibility is most relevant during the first phase of a disciplinary proceeding, where a hearing officer assesses the conduct of the witnesses appearing before him/her as part of the process of determining whether misconduct has been proven. However, the Appellant’s submissions on penalty have raised credibility as a relevant factor for us to consider.

56. Mr. O’Brien submitted that Constable Barlow’s behaviour with respect to his interactions with the Informant was:

• an aberration
• a small slice of an otherwise stellar performance
• a serious error in judgment
• one from which he had learned his lesson
• completely out of character.

57. The Hearing Officer was required to consider all of the evidence before him and come to a conclusion. He properly applied the O’Halloran test when assessing testimony. Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 (B.C.C.A.)

58. In determining the disposition of the charges, the Hearing Officer found the Informant to be a more credible witness than the Appellant. It was appropriate and necessary for him to make this finding of credibility, especially when weighing the testimony of a police officer and that of a confidential informant.

59. The Informant testified to liking “Constable Barlow and did not want to see him get into trouble”. This illustrates that there was no animus. The Hearing Officer, who had considerable opportunity to observe the demeanour of each witness, characterized the Informant’s testimony as “quite detailed”, “very candid”, with “the ring of truth to it” and “few, if any, weaknesses”. There was ample evidence before him that police records confirmed that the dates and times of events recounted in the Informant’s version were consistent and reliable.

60. On the other hand, the Hearing Officer was troubled that Constable Barlow appeared not to be telling lies, but was not telling ‘the whole truth’. He observed that the Appellant showed a tendency to “leave certain aspects and/or details unspoken”, “leaving inaccurate impressions in the minds of others”. The Appellant’s testimony was characterized as “evasive, misleading and selective in its content”.

61. The Hearing Officer also based his assessment of the Appellant’s credibility on other examples of testimony and documentation. For example, during his interview with Professional Standards, the Appellant repeatedly stated he did not “recall” or could not “remember” key events in the chronology of his interactions with the Informant. Yet, he later claimed to have faithfully reconstructed his debrief notes from memory, months after the events had occurred. Constable Barlow’s responses to questions posed appear to be clear attempts to distance himself from the truth.

62. Based on our review of the Record, we find the Hearing Officer’s assessments of credibility and character to be reasonable outcomes. We defer to his conclusions that the Appellant deliberately dissembled and was untruthful in his testimony.

63. Furthermore, the Hearing Officer’s conclusion that the Appellant was beyond the possibility of rehabilitation was not based solely upon the two arguments advanced by the Appellant.

64. The Appellant was not a neophyte in informant handling. Evidence showed that he had worked with informants before and had asked questions and received coaching from more senior officers on the subject. He had previously completed the required reports and complied with Service policy. There was considerable documentary evidence and testimony that the Appellant was familiar with Service policies. He observed that “no good would come” of unauthorized disclosure of confidential police information. Yet, as the Hearing Officer noted, there appeared to be one set of rules for the Service and one for Constable Barlow.

65. The Hearing Officer concluded that Constable Barlow did not appreciate the seriousness of his misconduct. Based on the evidence, we find this to be a reasonable assessment. The Record reveals numerous examples where the Appellant failed to follow Service policy, notwithstanding his acknowledgment that he knew what those rules were:

• failure to conduct regular CPIC checks on the Informant
• failure to inform supervisors about his activities or seek permission to meet with the Informant
• meeting alone with the Informant without a cover officer
• failure to prepare appropriate documentation such as debrief reports and informant ledgers contemporaneous with the contact
• using a personal vehicle for meetings with the Informant
• surveillance of a stolen vehicle in a manner contrary to Policy
• disclosure of RMS and CPIC information to the Informant

66. The Informant was placed at considerable risk due to the Appellant’s failure to follow Service policy and procedures. On one occasion when the Informant did not answer his knock on the door, he went to a neighbour’s house, in full uniform, using a ruse that he was following up on a false 9-1-1 call and was looking for the Informant. When the Informant was spotted sitting in the front seat of Constable Barlow’s police cruiser by an associate, a hurried cover story had to be concocted. Constable Barlow approached an individual the Informant identified as having been involved in a serious crime without an adequate cover story that would have cloaked the Informant’s identity. The Appellant quickly informed the Communications Centre of an armed robbery that few people aside from the Informant had knowledge of. The Informant’s identity and personal safety were compromised when Constable Barlow intervened in a takedown of the occupants of a stolen vehicle, and another police officer was alleged to have publicly labelled the Informant a ‘rat’ in speaking with a neighbourhood associate.

67. Shortly after the stolen vehicle incident, Inspector Gallant ordered the Appellant to cease contact with the Informant. Without lawful excuse, he disobeyed the direct order and engaged in another lengthy phone conversation with the Informant. His rationale was that the Informant would not speak with another officer or that the Informant was resisting entering the witness protection program.

68. The most troubling example of Constable Barlow’s lack of good judgment, absence of common sense, and lack of regard for safety and policy considerations was his disclosure of the Tactical Unit raid to the Informant.

69. Initially, when asked about the disclosure of information about a police operation, Constable Barlow stated that he was on duty. He said that he had been driving down a nearby street when he saw the dark coloured police vans and surmised the raid was about to happen or had been concluded when he called the Informant. Service activity logs and unit history recorded him as being off-duty when the raid actually occurred.

70. Call history records from the Appellant’s cell phone substantiated the Informant’s evidence. The penultimate call was made just before the raid; during the last call, he asked the Informant how the raid had gone. The record shows that Constable Barlow called both before and after the raid, as the Informant testified. Clearly, the Appellant’s responses to questioning about this were dishonest.

71. The Appellant eventually admitted advising the Informant about the upcoming execution of a search warrant “for entertainment purposes”. This behaviour violates the basic tenets of policing. The potential risk to other police officers, especially those involved in a level two takedown of a gambling establishment where there was a suspicion of weapons present, was considerable.

72. Counsel for the Appellant urged us to consider Guenette as a comparable situation. This case is distinguishable from Guenette for a number of reasons. Most significantly, Constable Guenette committed one impulsive act. Constable Barlow engaged in a course of reckless behaviour that included numerous on-duty and off-duty contacts over a span from February to September 2007, over one hundred telephone calls made to the Informant, and limited documentation of their interactions.

73. The Hearing Officer acknowledged Constable Barlow’s good works, especially in the area of working with the mentally ill and raising funds in the community. He accepted the character evidence and positive documentation as informative and useful. However, we agree that their value does not outweigh the totality of Constable Barlow’s misconduct. By his own admission, the Appellant engaged in a pattern of behaviour that was dangerous, wilful and recurring. The potential for grievous harm to himself and others is undisputed.

74. We have considered the Hearing Officer's decision in its entirety. He presented a clear line of analysis leading to his conclusion and met the standard of reasonableness. He appropriately assessed the relevant factors in reaching his decision on dismissal, namely: the nature and seriousness of the misconduct; the officer's ability to reform and rehabilitate; damage to the reputation of the Service with the broader community and with confidential informants, the Appellant’s employment history and experience, his recognition of the seriousness of the misconduct and the need for general and specific deterrence and consistency with prior disciplinary decisions.

75. The Hearing Officer properly concluded that the scale of seriousness required a penalty that was a strong general and specific deterrent. He properly applied the usefulness test, finding that there was clear and convincing evidence that dismissal was the only penalty open to him, as it “is reserved for those cases in which conduct is so disreputable that the police officer is no longer of any use to the service or it would cause irreparable damage…”. Guenette, supra. He considered that the Appellant’s conduct was not a single, aberrant act of human frailty but an extended series of repetitive events. Delano and Niagara Regional Police Service, December 4, 1998 (OCCPS), Nelles and Cobourg Police Service, (May 3, 2007, OCCPS), Krug, supra.

76. Given their seriousness, and the protracted period during which the nine incidents of misconduct occurred, the Appellant’s attempts to justify his actions, and his dissembling in the face of evidence substantiating his misconduct, the Hearing Officer’s conclusion that Constable Barlow’s usefulness as a police officer has been completely annulled falls within the range of reasonable outcomes.

77. Accordingly, the appeal is dismissed.

DATED AT TORONTO THIS 15th DAY OF AUGUST 2011

David C. Gavsie

Dave Edwards

Hyacinthe Miller

Chair, OCPC

Vice-Chair, OCPC

Member, OCPC