Schmidt v. Ontario Provincial Police, 2011 CanLII 101565

OCPC #11-12

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Schmidt v. Ontario Provincial Police, 2011 ONCPC 11

BETWEEN:

PROVINCIAL CONSTABLE ROLF SCHMIDT APPELLANT

-and-

ONTARIO PROVINCIAL POLICE

RESPONDENT

DECISION

Panel: David C. Gavsie, Chair

Hyacinthe Miller, Member

Hearing Date: July 20, 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:

James Girvin, Counsel for the Appellant

Superintendent Michael Shard, Counsel for the Respondent

Introduction

1. On August 5, 2009, a Notice of Hearing was prepared. The

Notice read:

“You stand charged with discreditable conduct in that you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ontario Provincial Police, contrary to section 2(1)(a)(xi) of the Code of Conduct contained in the schedule to Ontario Reg. 123/98, as amended”.

2. The Notice was served on the Appellant on August 21, 2009 and the hearing was held on October 26, 2010 before Ontario Provincial Police Chief Superintendent Susan George (the “Hearing Officer”).

3. An Agreed Statement of Facts (“Agreed Statement”) was read into the record at the hearing (see below).

4. The Appellant pled guilty to the allegation of discreditable conduct. The Hearing Officer rendered her penalty decision on November 10, 2010 and directed the Appellant to “forfeit 40 hours” or “to work an additional 40 hours pursuant to s. 68(1) (f) of the Police Services Act (the “Act”).”

5. The Appellant appeals the penalty and asks the Commission to substitute a forfeiture of 20 hours.

Decision

6. For the reasons outlined below, we grant the appeal and substitute the penalty of a forfeiture of 20 hours. The forfeited

hours are to be worked in addition to the Appellant’s regularly scheduled hours of work, as arranged with his supervisor.

The Agreed Statement

7. The following is the Agreed Statement read into the record at the disciplinary hearing on October 26, 2010:

“On the morning of April 4, 2009, PC Schmidt was on duty, operating a marked OPP cruiser and was stationary on the northbound shoulder of Highway

93 at the scene of a motor vehicle collision. At approximately 0930 hours, as he began to leave the scene, he attempted to execute a u-turn on Highway 93, South of Craighurst and Springwater Township, Simcoe County. PC Schmidt failed to see a Springwater Township fire truck northbound on Highway 93 approaching his vehicle from behind. PC Schmidt pulled into the northbound lane, forcing the driver of the fire truck to brake and swerve into the southbound lane to avoid a serious impact. The right front corner of the fire truck came into contact with the left front corner of the cruiser before both vehicles came to a stop.

The contact caused minimal damage to both vehicles. The corner "wing" of the fire truck's bumper collapsed, as it is designed to do and the firefighters were able to push the bumper back into the correct position. Also, a wheel nut cover fell off and there was a slight cut to one of the truck’s tires. The damage to the cruiser was a broken marker light lens and scuff mark on the bumper cover.

PC Schmidt was extremely shaken by the incident. He exited the cruiser, had a conversation with the firemen and looked at the contact area with the involved firefighters. PC Schmidt failed to

make any notes of the incident and told firefighters that he would take care of it.

PC Schmidt then proceeded to attend other calls for service and failed to report the incident with the fire truck to his supervisor.

At 1805 hours, PC Schmidt's supervisor noticed the damage to the cruiser in question. PC Schmidt still did not mention or report the earlier incident with the fire truck.

PC Schmidt responded to his supervisor that he encountered an oncoming vehicle and road debris on Nursery Road. A TP22 was subsequently completed as a result.

When the firefighters submitted statements on April 6, 2009, PC Schmidt acknowledged that the damage to the cruiser could have happened as a result of the incident with the fire truck, but advised that he did not notice the damage until

1255 hours.

PC Schmidt was charged under the Highway Traffic Act with "start position not in safety" contrary to section 142 (2) and he pled guilty. The cost to repair the damage to the cruiser was

$134.91.

PC Schmidt was responsible for the preventable accident with the fire truck, advised the firemen they could leave the scene telling them he would take care of it, failed to properly inspect his cruiser afterwards, failed to make notes of the incident, and failed to notify his supervisor. He subsequently also failed to notify his supervisor in a timely manner of the incident on Nursery Road.

On April 5, 2009, PC Schmidt submitted a TP 22 and his supervisor submitted an accident report, based on information provided by PC Schmidt, indicating the damage occurred as a result from a rock from a truck”.

Background

8. Constable Schmidt joined the Ontario Provincial Police (the “OPP”) in 1988 and has served as a patrol officer and, on occasion, an instructor at the OPP Academy. Both the Intelligence Service of Ontario and the OPP Academy have recognized the instructional assistance he has provided. There are numerous other letters of appreciation from members of the public in his personnel file. In April 1998, Constable Schmidt received a Commissioner’s Citation for Bravery.

9. Constable Schmidt is qualified as a level two traffic collision investigator. His performance appraisals note that he consistently demonstrates sound knowledge and judgment relating to OPP policies, procedures and practices, criminal investigations, traffic enforcement, intelligence gathering and case law. He is proficient in traffic enforcement, problem- solving skills, leadership attributes and interpersonal skills. He received the Police Exemplary Medal for twenty years of excellent conduct.

10. Since April 2010, the Appellant has been performing administrative duties in his detachment.

Appellant’s Submissions

11. Mr. Girvin noted that the standard of review of a hearing officer’s decision as to penalty is reasonableness. He submitted that when an adjudicator makes findings based on matters not in the evidentiary record and the penalty assessed is unreasonable, it is open to us to vary that penalty.

findings of fact and credibility, as they are based on the Agreed Statement and the Appellant’s guilty plea. The appeal is narrow and focused on specific issues. His position is that the situation giving rise to the charge of misconduct is unique. There are no recent, similar cases that establish a range of penalty other than possibly Constables Sean Bender and Ron LeClair and Windsor Police Service, (March 15, 2000, OCCPC).

13. Mr. Girvin argued that deference is due to a Hearing Officer when there has been adequate consideration of the relevant factors. With no precedent comparators, it was incumbent on the Hearing Officer to provide a rationale in support of her decision. At the end of the day, the Hearing Officer’s decision is not adequate. She goes through the facts, recounts the submissions and the factors to be considered. However, she committed an error by failing to see the interplay of mitigating and aggravating factors and weigh them in the balance.

14. Mr. Girvin further stated that the Hearing Officer’s characterization of the collision as minor but the misconduct as serious, was puzzling. While the “engagement of other emergency services personnel” may have been an aggravating factor, there was no evidence of any consequences and no analysis supporting her conclusion. The timespan between the Appellant’s failure to immediately report the collision, his misrepresentation of events to his supervisor and the eventual truth was two days.

15. Counsel noted that Constable Schmidt was not charged with neglect of duty or deceit. If that had been the case, a more serious penalty may have been warranted.

16. He submitted that the Hearing Officer took judicial notice of matters neither the prosecution nor defence put before her. She used information relating to the OPP Strategic Plan and workplace safety priorities that was not in evidence to distinguish this case from Bender and Leclair, supra. For example, she focused on the evolution of officer safety

would have been appropriate for the Hearing Officer to voice any concerns during the disciplinary proceeding and ask counsel for comment.

17. Mr. Girvin did not take issue with the Hearing Officer’s reliance on her experience and knowledge as a police officer, but stated that if she relied on information not contained in the Agreed Statement, it was incumbent on her to refer to evidence such as an internal investigation, forensics reports, traffic reconstruction reports, etc., as part of her analysis. Not doing so was problematic vis-à-vis the decision on penalty.

18. Counsel took issue with the Hearing Officer’s statement that “each case must be considered on its own facts and the law [and] penalty principles, [penalty principles] as established and referenced earlier in this decision, are influenced through the evolution of case precedent.” He argued that there is no similar precedent case and that, without analysis to substantiate a penalty of forfeiture of 40 hours based on the facts, the Hearing Officer committed a reversible error.

19. Further, the officers in Bender and Leclair, supra, did not plead guilty. A full hearing was required. The Appellant pled guilty and an Agreed Statement was tabled. This is a fundamental mitigating factor demonstrating that the Appellant recognized the seriousness of his misconduct.

20. With respect to the issue of Constable Schmidt’s disability, Mr.

Girvin noted that, in response to the Hearing Officer’s questions, he made submissions about the impact of a disciplinary penalty. He noted that a lengthy disposition would impose proportionally more hardship because of the Appellant’s administrative duties and already-restricted hours of work. The result is that the existing penalty does not achieve a proper balance between mitigating and aggravating factors. Carson and Pembroke Police Service (March 9, 2006, OCCPS), Krug and Ottawa Police Service (January 21, 2003, OCCPS), White

and Reid and Windsor Police Service (2000), 3 O.P.R. 1434 (OCCPS).

21. Counsel argued that, while the Appellant’s conduct was a significant mis-judgment, the event was not serious. Disproportionate emphasis was placed on the seriousness of the misconduct in the context of public interest, given that the damage was $134. The Hearing Officer acknowledged mitigation but in coming to her decision, failed to articulate how she weighed the Appellant’s 23 years of unblemished service, the single incident of anomalous behaviour and the fact that he was evaluated as continuing to perform his work in coming to

22. He said that the prosecution and defence counsel agreed that Constable Schmidt has had an exemplary career and that his conduct in April 2009 was anomalous. The Appellant apologized. There were no concerns about rehabilitation.

23. Mr. Girvin submitted that a previous penalty arising from an unreported auto accident was for 8 hours, which was a “low water mark” on the penalty scale. Bender and Leclair, supra. He argued that, taking everything into consideration, an appropriate penalty would be forfeiture of 20 hours.

Respondent’s Submissions

24. Superintendent Shard submitted that the standard of review for the Commission is one of reasonableness. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) at

25. He submitted that there is no precisely correct penalty. We should consider an acceptable range when assessing a

penalty for an offence. We must also consider an adjudicator’s

decision in its entirety. A decision will meet the test of reasonableness if it presents a line of analysis, findings and reasoning leading to its conclusion. The Commission should not be overly critical of a Hearing Officer’s language or focus on mistakes that do not affect the decision as a whole.

25. He further stated that deference is owed to the Hearing Officer’s findings of fact and credibility, as she is a senior police officer. Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301 (Ont. Div. Ct.), Ontario (Provincial Police) v. Favretto 2004 CanLII 34173 (ON CA), O.J. No. 4248 (C.A.).

26. The Hearing Officer’s decision meets the criteria for reasonableness. She carefully considered the submissions made and appropriately assessed the relevant criteria in determining the appropriate penalty. Carson v. Pembroke [2007] O.J. No. 5392 (Div. Ct.) at paras. 8-10, 14, 20 and 23.

27. Counsel asserted that the Notice of Hearing framed the Appellant’s conduct as discreditable and references the neglect and integrity elements. At issue are the facts. Constable Schmidt told the firefighters that he would “take care of it”, which implies that there was something to take care of. No other officer attended the accident scene to make an independent assessment of the extent of damage to the vehicles.

He submitted that the seriousness of

the subsequent

misreporting of the event, the Appellant’s

evasiveness and

attempts at deceiving his supervisor, and the public interest,

were factors in the Hearing Officer’s consideration of an appropriate penalty. Further, the fact situation before us is quite different than in Bender and Leclair, supra, where the collision was with a vehicle driven by a civilian and no damage was evident at the scene. Constable Bender gave the other driver his card before leaving the scene; however, he did not file a report, believing that one was only necessary if there was damage to either vehicle. In the collision between Constable Schmidt’s police cruiser and the fire truck, there was obvious damage to both vehicles. Furthermore, the Appellant told the firefighters he would take action.

29. Superintendent Shard asked us to reject the argument that the onus was on the Hearing Officer to raise concerns about OPP

strategies and policies. The steps taken by the employer with regards to officer safety were general knowledge, they did not constitute new evidence and were background relating to the general environment within the OPP, rather than specific to the Appellant’s case. Morden and Peel Regional Police Service, (March 20, 1997, OCCPS). Her awareness of officer driving safety initiatives assisted her in interpreting how the aggravating factors should be applied. There was no contradiction between the Agreed Statement and her findings. Constable Larry Mikalachki and Toronto Police Service and Mr. Jesse Garrett, (July 7, 2004, OCCPS).

30. Counsel noted that both the defence and the prosecution submitted that a higher penalty than assessed in Bender and Leclair, supra, was warranted. It was in this context that the Hearing Officer made the statement that times have changed and that greater emphasis has been placed on promoting safe driving by officers and traffic safety. The Appellant’s actions after the collision, notably his failure to properly report the accident, were key elements in the assessment of the seriousness of the misconduct.

31. Superintendent Shard noted that, unfortunately, the Hearing Officer did not reference the observations of Inspector Young, the Service prosecutor at the disciplinary hearing, who more succinctly outlined the links between the Appellant’s attempts at deception after the collision, the higher standard of integrity and professionalism required of police officers and the expectations of the public that they will be able to trust and rely on police officers. Further, Inspector Young emphasized that protection of the public interest and confidence were factors in his request for a penalty of forfeiture of 60 hours.

32. With respect to the argument that imposing a significant penalty on the Appellant would produce a differential impact on an officer who is unable to work overtime due to his assignment to administrative duties, Superintendent Shard argued that whether an officer is able to earn additional wages to offset the monetary penalty should not be a consideration.

33. He submitted that there were no errors in the Hearing Officer’s reasoning, that the penalty falls within a reasonable range, and that the Hearing Officer’s decision is consistent with the seriousness of the misconduct. Hominsky v. Ontario Provincial Police, October 7, 2010 (OPP Disciplinary hearing decision)

Reasons for Decision

34. The role of the Commission on an appeal of a disciplinary penalty is to review the Hearing Officer’s decision and determine whether that decision was reasonable or whether errors were committed that would require the Commission to vary the penalty imposed.

35. The standard of review with respect to factual findings is reasonableness, McCormick v. Greater Sudbury Police Service (2010), ONSC 270 (Ont. Div. Ct.), para. 89. The Supreme Court of Canada described that standard in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 at para 47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable rational solutions… 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.

decision as a whole, rather than minutely examining the reasons given by the Hearing Officer. Ontario Provincial Police v. Favretto 2004 CanLII 34173 (ON CA), [2004] 191 O.A.C. 3, 72 O.R. (3d) 681 (Ont. C.A.); Toronto (City) Police Service v. Blowes-Aybar [2004] 185

O.A.C. 352 (Ont. Div. Ct.); and Toronto (City) Police Service v. Kelly 2006 CanLII 14403 (ON SCDC), [2006] O.J. No. 1758 (Ont. Div. Ct.)

37. While deference must be accorded to factual findings, the same cannot be said for interpretations of relevant aspects of the law. The standard of review for such matters is correctness, Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 (Ont. CA). The Ontario Court of Appeal has stated that reasons must meet certain requirements. Failure to do so represents an error of law which does not meet the standard of correctness.

38. The tests we are to apply have been described by the Courts as functional and substantive. As a first step, reasons must be examined to ensure that they describe the finding - the “what”

• and the pathway by which the adjudicator reached his or her decision - the “why”. This is a functional review or an

examination of the sufficiency of a hearing officer’s reasons.

39. The essential question in a functional review is whether the reasons clearly articulate the finding and provide an intelligible explanation as to how an adjudicator reached his or her conclusions. A decision must identify the live issues and deal with them, Clifford v. Ontario (Attorney General) (2009), 98

O.R. (3d) 210 (Ont. C.A.). If the decision cannot satisfy a functional review, it cannot stand, because the reasons are insufficient. If it does, then a substantive review can take

place.

40. A substantive review is a deferential review as to the reasonableness of the decision and follows the principles enumerated in Dunsmuir, supra.

41. In this appeal, the two questions for us are: whether the findings of the Hearing Officer are reasonable and whether they

are they mutually exclusive.

42. It is well established that hearing officers may bring to disciplinary proceedings both their practical and specialized knowledge of the workings of their police services. This allows a hearing officer to both understand and interpret evidence in context when assessing misconduct. Sergeant Brian Berger and Toronto Police Service, (May 24, 2007, OCCPS), Orr v. York Regional Police Service, (December 18, 2000, OCCPS).

43. We find that the Hearing Officer was entitled to draw reasonable inferences based upon the facts set out in the Agreed Statement. It was open to her to infer that the Appellant intended to conceal the truth about the collision with the fire truck and that he intended to deceive his supervisor about the cause of the damage to the police vehicle.

44. It was not an error for the Hearing Officer to refer to her knowledge of OPP policy and priorities and the emphasis on the importance of officer and public traffic safety strategies. The Hearing Officer was also aware of OPP requirements to properly report officer-involved motor vehicle accidents and the relationship between public confidence and a higher standard of conduct expected of police officers. She was entitled to rely upon her experience as a senior officer in considering the seriousness of the misconduct and the need for general deterrence.

45. We are mindful that a hearing officer is a lay tribunal and that we are not to conduct an in-depth examination of the details of a decision. Although we found the Hearing Officer’s decision somewhat lacking in substantive analysis which would link the elements considered into a coherent and understandable whole, the Panel is also mindful of the Dunsmuir decision, supra. For the reasons set out below, we do not agree that her analysis of the relevant factors supports her conclusion that forfeiture of 40 hours was reasonable and fair.

Bender and Leclair, supra, but dismissed the issues raised there as being “procedural in nature and…not relevant”. Limited explanation was provided as to how the facts and distinguishing factors in the two cases established the foundation for selection by the Hearing Officer of 40 hours forfeiture as an appropriate penalty.

47. From the record, we note that as in Hominsky, supra, the Appellant failed to make notes about the collision and submitted an incorrect duty report. Both officers pled guilty before their disciplinary hearings commenced. Constable Schmidt also pled guilty to a charge under the Highway Traffic Act and paid a fine. He did not, however, attempt to conceal the damage with sanding and a botched paint job, for a period of almost three months. While we do recognize the fact that repairs were necessary, the cost to repair the damage from the collision was minimal. There was no joint submission on penalty in Constable Schmidt’s case, while the joint submissions for Hominsky recommended forfeiture of 90 hours.

48. At the disciplinary hearing, the prosecution requested a penalty of 60 hours forfeited; the defence requested a penalty of 20 hours. The Hearing Officer ordered a penalty of 40 hours, stating that she “agree(d) with prosecution and defence that a more substantial penalty is warranted.”

49. On its face, picking the middle ground may seem to be a fair compromise. However, the Hearing Officer provided no meaningful analysis of the factors she weighed in reaching her decision. She mentioned that “any penalty imposed must highlight the direction of the OPP regarding officer involved collisions”, but did not elaborate on the basis for her choice between the two suggested penalties before her. It was incumbent on her to do so. Noting that “as a result of the evidence and submissions of both prosecution and defence, PC Schmidt will be required to forfeit 40 hours” is not sufficient. The Hearing Officer has not provided us with a linear analysis or sufficiently detailed reasons to substantiate that her

reasonable range. This was an error.

50. Having found the Hearing Officer’s imposed penalty not to be reasonable in the circumstances of this case, the Panel must substitute a penalty. There are a number of aggravating and mitigating factors to be weighed, including the nature and seriousness of the misconduct, the officer’s ability to reform and rehabilitate, damage to the reputation of the police service, the need for specific and general deterrence, management’s approach to the misconduct, and consistency with prior disciplinary decisions dealing with similar conduct. Other relevant concerns are employment history and experience, recognition of the seriousness of the misconduct, any handicap and other relevant or personal circumstances. Williams and Ontario Provincial Police (December 4, 1995, OCCPS)

51. Regarding the nature and seriousness of the misconduct, the Panel notes the following. The damage caused to the police cruiser was under $135. Any damage to the fire truck seems to have been repaired on the spot. However, the Appellant did not tell the truth to his supervisor as to how the damage occurred, causing a false report to be filed.

52. The Appellant is qualified as a level two traffic collision investigator. Given this expertise, his attempted deception about his involvement in the collision was inexcusable and contrary to the training and standards of behaviour expected of any police officer. The Hearing Officer noted that “any penalty imposed must highlight this factor”, but failed to provide reasons to support this conclusion.

53. There was no evidence presented that Constable Schmidt’s ability to reform and be rehabilitated had been compromised. It was acknowledged that his behaviour was a deviation from his previously demonstrated work performance. This was the first incidence of misconduct in an otherwise unblemished career. His supervisor noted that the Appellant continues to

demonstrate sound judgment and that his continued dedication and professionalism since the incident have been noted by management and staff. That, and his employment record, bode well for Constable Schmidt continuing to perform his duties to the best of his abilities. The Panel is of the view that the Appellant has learned from this event.

54. Until April 4, 2009, the Appellant was a good, and at times, exemplary officer. He is respected as a leader and instructor. He has received several commendations during his 23 years of service. All of the foregoing are mitigating factors.

55. The Appellant’s conduct led to the disciplinary charge and a Highway Traffic Act charge. By pleading guilty to both charges and apologizing, the Appellant demonstrated that he recognized his error. Given his otherwise exemplary career, the Panel finds that the one lapse of judgment was uncharacteristic. There is little possibility of a repeat offence.

56. A penalty is warranted, but it must be reasonable given all of the circumstances.

57. There was reference to the fact that Appellant has an illness.

The OPP has accommodated him in an administrative position. He was reported to be a contributing member of the OPP.

58. The Hearing Officer considered the importance of maintaining the public trust and confidence in the OPP and the potential for damage to the reputation of the OPP. She properly concluded that the Appellant was less than candid with is supervisor. However, there was no evidence before her that Constable Schmidt’s conduct caused serious damage to the reputation of the OPP, that his actions compromised public confidence, or that his fellow officers felt that this misconduct was egregious.

59. As stated in Carson v. Pembroke Police Service (July 27, 2001, OCCPS) at page 10:

… the Commission is authorized to vary a penalty if it is unreasonable or amounts to injustice or if all relevant matters here have not been fairly and impartially considered.

60. The Commission must ensure that a penalty is both appropriate and fair (Carson, supra p. 11).

… with respect to rehabilitation, while the Hearing Officer raised this issue, we believe that the Hearing Officer failed to give adequate and sufficient consideration and weight to the rehabilitation of Constable Carson. In our opinion, this was a significant flaw in his decision. We believe that rehabilitation is a very significant factor to be taken into consideration when imposing a penalty, especially, when the offender has an unblemished employment record...

61. A penalty should be tailored to rehabilitate, not just to punish.

It must fit the offence and achieve a proper balance between deterrence and fairness. The Panel finds that, given the facts,

the penalty imposed by the Hearing Officer was harsh and

excessive.

62. We find that, considering the relevant dispositional factors, a lesser penalty would be appropriate and will achieve a correct balance.

63. Accordingly, we grant the appeal and substitute a penalty of forfeiture of 20 hours. The forfeited hours are to be worked in addition to the Appellant’s regularly scheduled hours of work, as arranged with his supervisor.

DATED AT TORONTO THIS 13th DAY OF OCTOBER, 2011

David C. Gavsie Hyacinthe Miller

Chair Member