Purbrick v. Ontario Provincial Police, 2011 CanLII 101567

OCPC #11-08

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Purbrick v. Ontario Provincial Police, 2011 ONCPC 7

B E T W E E N:

PROVINCIAL CONSTABLE C.S. PURBRICK APPELLANT

-and-

ONTARIO PROVINCIAL POLICE

RESPONDENT

DECISION

Panel: Noelle Caloren, Member Zahra Dhanani, Member Dave Edwards, Member

Hearing Dates: February 23, 2011

March 15, 2011

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances

1. Joanne E. Mulcahy, Counsel for the Appellant

2. Michael Doi and Katie Clements, Counsel for the

Respondent

Introduction

1. A hearing of the Ontario Civilian Police Commission (the “Commission”) was held at the offices of the Commission on February 23 and March 15, 2011 regarding an appeal by Constable C.S. Purbrick (the “Appellant”) from the penalty imposed by Superintendent M.P.B. Elbers (Ret.) (the “Hearing Officer”) on July 5, 2010 of immediate dismissal from the Ontario Provincial Police (“OPP”).

2. On September 25, 2009, the Appellant pled guilty to one count of discreditable conduct contrary to section 2(1)(a)(xi) of 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”).

The charge was laid as a result of Appellant’s commission

of

a

series of thefts against the OPP which the Appellant

committed while on duty.

4. The Appellant appeals the penalty.

Decision

5. For the reasons set out below, we grant the appeal, and vary the penalty from dismissal to one of a demotion with terms and conditions as follows:

6. Constable Purbrick shall be demoted to fourth-class constable. He may only be considered:

   a. for promotion from fourth-class constable to third-class constable after he has held the fourth-class constable position for a period of one year;

   b. for promotion from third-class constable to second-class constable after he has held the position of third-class constable for a period of one year; and

   c. for promotion from second-class constable to first-class constable after he has held the position of second-class constable for a period of one year,

   any of such promotions only occurring upon a suitable evaluation, and being in accordance with the established reclassification process of the OPP.

7. It is important that the significant rehabilitation efforts which Constable Purbrick has made not be lost upon his return to the stress of active service. We therefore order that a system be implemented by the OPP to monitor Constable Purbrick’s mental health on the following basis:

   a. Constable Purbrick shall attend monthly therapy sessions with such qualified clinical psychologist or psychiatrist as Constable Purbrick shall select;

   b. Every three months, for a period of two years, Constable Purbrick shall ensure that the OPP receives from the said qualified clinical psychologist or psychiatrist, a written report relating to his ability to perform and continue to perform safely his professional duties as a police officer;

   c. Refusal or failure by the Appellant to participate in any required therapy sessions or failure to provide the said reports in accordance with the aforesaid conditions, without reasonable excuse, will entitle

   the OPP to prosecute Constable Purbrick under the Act and to seek his dismissal or such other penalty as may then be thought appropriate.

Background

6. The Appellant has been an officer with the OPP since 1988. He worked at the Glencoe Detachment his entire career and was one of seven police officers who worked at that Detachment.

7. An Agreed Statement of Fact was tendered at the penalty hearing. In brief, following a complaint from another OPP officer, the Appellant was placed under surveillance for four days beginning June 2, 2008 and ending July 12, 2008. On each of those days, while he was on duty and in an the cruiser, the Appellant was observed placing his own gas container into the back seat of the OPP cruiser and then later pumping gas into that container in a manner which would indicate that he was attempting to do so without being seen. The Appellant paid for the gas with an OPP credit card. Later he transferred the filled gas container from the cruiser either to his personal vehicle or directly to his residence. On one of the days the Appellant was observed taking gas twice. He did not use the gas in the container for official business.

8. Also on the day of his arrest, a bag with two rolls of toilet paper and a quantity of green garbage bags, which had been taken from the Detachment, were found on the front seat of Appellant’s personal vehicle.

9. The Appellant was arrested and charged with four counts of Theft Under $5,000 contrary to Section 334 of the Criminal Code of Canada. On May 29, 2009, the Appellant pled guilty to all four criminal charges. He was subsequently granted an absolute discharge.

10. At his misconduct trial, Constable Purbrick pled guilty and was convicted. A penalty of immediate dismissal was imposed by the Hearing Officer.

The Hearing

11. The sentencing hearing before the Hearing Officer took place over 15 days from September 25, 2009, to May 13, 2010. Over 23 witnesses testified, many from the community, and 41 exhibits were admitted into evidence.

12. The Hearing Officer’s judgment on penalty was released on July 5th, 2010.

Preliminary Motion

13. At the beginning of this proceeding, Ms. Mulcahy on behalf of Appellant, brought a motion to introduce fresh evidence, namely, first an OPP McNeil report (see footnote 1)¹, and second the reasons for judgment of Justice Webster in the criminal case against the Appellant referred to in paragraph 9 above.

14. Ms. Mulcahy argued that Justice Webster’s consideration of the Appellant’s guilty plea, his expression of remorse and apology, and the character evidence are significant to penalty considerations.

15. Ms. Mulcahy submitted that the OPP McNeil report establishes that one year following an absolute discharge, the OPP would not disclose the Appellant’s conviction. She argued that the Hearing Officer was provided with inaccurate testimony to the effect that the McNeil report would preclude the Appellant from being involved in any investigation because he would be required to disclose the criminal conviction.

16. Mr. Doi, on behalf of the OPP, did not object to the introduction of Justice Webster’s reasons for judgment. He did, however, urge us not to accept the McNeil report. He argued that

it was neither conclusive nor significant evidence. In this regard, he suggested that the credibility of a police officer would be an issue in any criminal proceeding where he would be called to testify. He also pointed out that this evidence could have been obtained prior to the hearing and should therefore not be admitted as fresh evidence on this appeal.

Decision on Motion

17. Appeals to the Commission are proceedings “on the record”. However, subsection 70(5) of the Act permits us to receive new or additional evidence as we consider “just”. The Act does not set out what factors we are to take into account in our assessment of whether it would be “just” to receive such evidence.

18. On this issue, the Commission has been guided by the four part test set out by the Supreme Court of Canada in R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at page 775:

“(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal cases as in civil cases;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue

in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and

(4) It must be such, that if believed, it could reasonably, when taken with the other evidence

adduced at trial, be expected to have affected the

result.”

19. In past decisions, on appeals from a penalty of dismissal, the Commission has demonstrated a willingness to liberally follow this guidance and to admit fresh evidence if it appears “just” to do so.

20. Given the penalty in question, we determined that it was “just” to admit both the reasons for sentencing in the criminal matter which speak to the Appellant’s remorse and the OPP McNeil report as it was the subject of incorrect evidence at the hearing. Accordingly, it was our ruling that both documents be admitted into evidence such that they can be referred to as the Appellant’s counsel sees fit.

Submissions of the Appellant

21. Ms. Mulcahy submitted that the Commission should take guidance from its decision in Constable Carson and Pembroke Police Service (2001) 3 O.P.R. 1479 which held that the Commission has jurisdiction to vary a penalty where there has been a failure to give proper weight to mitigating factors. The Commission also has jurisdiction to vary the penalty where it is unreasonable, would amount to an injustice or be unfair, or where all relevant factors have not been fairly or impartially considered.

22. She submitted that the Hearing Officer did not enunciate the test for dismissal that he applied in coming to his decision as to penalty.

23. Ms. Mulcahy asserted that the penalty of dismissal should be reserved for the most reprehensible and egregious offences by a police officer, where they no longer can be of service to the police force. Gregg v. Midland Police Service (October 2, 2001, OCCPS), Cate v. Peel Regional Police Service (December 12,

1997, OCCPS.), Guenette v. Ottawa Carlton Regional Police Service (21 July, 1998, OCCPS.), Toronto City Police Service v. Kelly [2006] O.S.C.J. O.J. No. 1758, and Favretto and Ontario

Provincial Police (February 13, 2002, OCCPS).

24. She argued that the Hearing Officer committed errors so fundamental that his decision should be overturned. The following were the errors:

25. he did not enunciate the appropriate test for a penalty of dismissal;

26. he ignored the character evidence from the community;

27. he misstated the evidence that was tendered;

28. in his reasons, the Hearing Officer referred to the “Commissioner’s Directional Statement of 2002-2003”, when that evidence was not introduced at the hearing;

29. he erred in his interpretation of the evidence on the Appellant’s mental health condition, including the evidence before him on post traumatic stress disorder (“PTSD”);

30. he erred in his finding regarding the Appellant’s ability to reform or rehabilitate;

31. he did not appropriately or reasonably consider the relevant factors for a penalty decision; and

32. he erred in his conclusion regarding damage to the reputation of the police force.

33. Finally, Ms. Mulcahy asserted that the Hearing Officer’s decision on penalty should be varied to a lesser penalty and the Appellant should be reinstated.

Submissions for the Respondent

26. In their arguments on behalf of the OPP, Mr. Doi and Katie Clements submitted that the decision of the Hearing Officer was reasonable and within the range of available penalties.

27. They asserted that given the facts of this case there are no mitigating factors that would warrant interfering with the penalty decision.

28. They argued that the standard of review to be applied to the Hearing Officer’s decision is the standard of reasonableness and that his decision is owed a considerable level of deference.

should be considered in its entirety and not from a microscopic analysis of each individual comment made by the Hearing Officer. If there is a clear line of analysis leading to the conclusion, the decision will meet the standard of reasonableness.

30. They asserted that the Hearing Officer appropriately assessed the relevant factors in coming to 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 police service if the officer remained; the need for specific and general deterrence; management’s approach to misconduct, aggravating and mitigating factors and consistency with prior disciplinary decisions.

31. In the OPP’s view, dismissal is an appropriate penalty for officers who commit theft or fraud, and police officers are held to the highest standard of behaviour.

32. Counsel asserted that the Hearing Officer accurately found that the misconduct was serious as it was repeated, deliberate and intentional; that the Appellant’s misconduct seriously compromised his ability to work with other officers at the Glencoe OPP Detachment; and that the dismissal penalty appropriately signalled general deterrence in this matter, sending a message to all that “the service will not tolerate” unacceptable behaviour.

33. Counsel argued that the Hearing Officer also addressed the need for specific deterrence on this matter, as the Appellant had demonstrated an unwillingness to take full responsibility for his actions.

34. On behalf of the OPP, counsel submitted that the Hearing Officer accurately determined that the Appellant’s behaviour could not be attributed to his mental health.

35. Finally, counsel submitted that the penalty of dismissal is reasonable and is consistent with previous decisions, and therefore this appeal should be dismissed.

36. The Appellant appeals the penalty imposed against him.

37. The standard of review for the Commission with respect to factual findings is reasonableness. McCormick v. Greater Sudbury Police Service (2010), ONSC 270 (Ont. Div. Ct.).

38. The standard of review with respect to the 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.)

39. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir v. New Brunswick [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.”

40. Past decisions of the Commission have spoken to the standard of review for penalty appeals, noting that our role on an appeal is not to second-guess the decision of the Hearing Officer, but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence, and are articulated in a logical manner. Precious and Hamilton Police (2002), 3 O.P.R. 1561 (OCCPS) and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668

41. In certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle or relevant sentencing factors have been ignored. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS), Wilson and Ontario Provincial Police (November 20, 2006, OCCPS), Favretto and Ontario Provincial Police (February 13, 2002, OCCPS) and Karklins and Toronto Police Service (September 25, 2007, OCCPS).

42. 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. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence. Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont 1583 ( Div. Ct.).

43. In reviewing the Hearing Officer’s decision we find that significant errors were made. Specifically, we have determined that:

1. The decision contains significant findings which are unreasonable in the face of the evidence.

2. The Hearing Officer failed to appropriately consider the testimony given by the character witnesses.

3. The Hearing Officer failed to consider the relevant penalty factors in reaching his decision.

44. Our comments and conclusions regarding the Hearing Officer’s decision are set out below under the headings used in his decision.

Character Evidence

45. Twelve witnesses testified as to the Appellant’s character. Overall, the Hearing Officer’s summation speaks only of the specific knowledge of the witness about the Appellant’s

misconduct. Nowhere does the Hearing Officer address the evidence given in support of the character of the Appellant. We find the complete lack of reference to character evidence sufficiently deficient to constitute an error of law.

46. Each witness provided a letter of support for the Appellant and testified under oath. In his decision, the Hearing Officer summarizes this evidence primarily by focusing on the witnesses’ views of the thefts. On page five of his decision, the Hearing Officer states:

“Community members, friends and acquaintances who testified before me essentially saw these matters in one or more of the following fashions:

1. It was not that serious as to warrant Constable

Purbrick losing his job.

2. That the thefts were minor in nature.

3. That the events never occurred.

4. That they were aware of some of the difficulties with

Constable Purbrick and he was working through these issues and he deserved a second chance.

5. Supervisors of the OPP should have helped him.”

6. In our review of the hearing transcripts, we found no witness who testified that “the events never occurred.” Most of the witnesses believed a combination of the other four themes. They also testified to much more than these listed categories.

7. All witnesses testified that the thefts were completely out of character for the person they knew the Appellant to be. Some of the character witnesses had interacted with him for over twenty years. This is significant testimony and there is no indication that the Hearing Officer accorded it any value.

8. Not only had these witnesses known the Appellant for lengthy periods of time, they were also people who held important and varied roles in the community, such as the editor of the local paper, a local municipal politician, a former bank manager, and a university professor.

9. Furthermore, the witnesses’ testimony as to their perception of the thefts was only one aspect of their testimony. They testified at great length about how they knew the Appellant; the role he played in their lives and the lives of their children; the ways he had helped them over the years; and their overwhelming support for him.

10. It is true that they were not fully apprised of the details of the Appellant’s actions. They did not know about the deliberate and calculated way in which the Appellant went about the thefts; and in some instances, they did not know that he had pled guilty.

11. However, even after the Prosecutor shared with them the specific details of the incidents, all but one of the witnesses testified that those details did not change their positive support for the Appellant. In fact, in the face of the details of how the Appellant orchestrated the thefts, the community support remained unequivocal and unwavering.

12. This is not testimony that can be taken lightly nor can it be wholly discounted. The Hearing Officer’s decision fails to address the “character” part of their character testimony and focuses only on their views about the thefts. At the very least, the Hearing Officer ought to have given reasons why he decided not to address what amounted to potentially a very significant mitigating factor. The Law Society of Upper Canada v. Neinstein

2010 ONCA 193 (Ont. C.A.).

Findings of Hearing Officer

54. This section of the Hearing Officer’s decision is quite confusing. While consideration has been given to the fact that hearing officers are often not lawyers, the fact remains that a hearing officer’s decision must meet minimum standards.

55. In our view, the Hearing Officer appears to have confused the penalty hearing with a misconduct hearing. Five paragraphs of this section discuss the test for “discreditable conduct”. These paragraphs are wholly irrelevant to the decision.

56. The Hearing Officer also refers to a document that was not part of the evidence before him. The document was the OPP’s Commissioner’s Directional Statement of 2002-03. This is not appropriate.

Public Interest

57. In this section, certain paragraphs seem completely out of context. For example, on page ten of the decision, the Hearing Officer states: “It is therefore extremely important that the Ontario Provincial Police demonstrate that members will be held to that standard.” No “standard” was referred to in the preceding paragraph.

58. In the next paragraph the Hearing Officer states “I must consider these issues as aggravating in my decision making process in determining an appropriate disposition.” The previous paragraph referred to a “standard”, and not to any issues.

Recognition of Seriousness of Misconduct

59. This section of the Hearing Officer’s decision begins with:

“I am under the firm belief that Provincial Constable Purbrick does not fully understand how his actions have affected himself and the organization to this day.”

60. The Hearing Officer’s reasons for this conclusion are based upon his assessment of Appellant’s relationship with mental health practitioners, which assessment is not founded in the evidence.

61. More importantly, this conclusion is at odds with the evidence that not only did the Appellant plead guilty at both his criminal trial and at the disciplinary hearing, but that he underwent therapy until his doctor released him from further treatment. Furthermore, the Appellant testified that what he did was “stupid” and that he hoped to never do it again.

62. The Hearing Officer fails to focus on the issue before him, which is “Recognition of the Seriousness of the Misconduct”. He undertakes a discussion of the Appellant’s mental condition and the implication of PTSD. None of this is relevant to the issue of whether or not the Appellant has recognized the seriousness of his misconduct.

63. From the evidence, we find that the Appellant clearly recognized the seriousness of the offence. In fact in the last paragraph of this section, the Hearing Officer notes that in his criminal proceeding the Appellant pled guilty, made restitution and apologized for his actions.

64. The Hearing Officer erred in two ways with respect in this section. First, the medical evidence was not relevant to whether the Appellant recognized the seriousness of the misconduct. Secondly, the Hearing Officer was not holding a misconduct hearing; it was a penalty hearing. The submissions on mental health went to mitigation, not to the defence of the misconduct charge.

Employment History

65. The Hearing Officer made no clear finding as to whether the Appellant’s employment history was a mitigating or aggravating factor. The only statement in the decision is that employment history “could” go to mitigation.

66. The Appellant has been a police officer, stationed at the same detachment for over twenty years. He has no history of disciplinary issues and enjoys solid community support in his role as a police officer.

67. Evidence was submitted, that the Appellant was performing his duties in an average or sub-standard fashion. There was also evidence introduced that described issues with the Appellant’s attitude. When weighed against the lack of documentation on these issues by his supervisors and that these issues were not addressed during his employment, we find that the Appellant’s twenty three years of service should have been

accorded considerably more weight.

68. We find that the Hearing Officer erred in not finding the Appellant’s employment history to be a mitigating factor in penalty.

Ability to Reform or Rehabilitate the Officer

69. The Hearing Officer failed to address the medical evidence and the Appellant’s efforts to resolve his mental issues as they relate to the Appellant’s ability to reform or rehabilitate.

70. The Appellant spent three months at the Homewood rehabilitation facility. There are reports from the facility that speak to the Appellant’s condition and prognosis.

71. Upon entering Homewood, the Appellant was diagnosed with PTSD, depression, anxiety and alcoholism. His alcohol issues were found to date back to his childhood. His PTSD issues were found to relate to his childhood abuse and to have flared up in

1995 when he experienced a traumatic incident while on duty.

72. Upon entering Homewood, the Appellant began a program to treat his alcoholism, and he has remained sober for almost three years.

73. The Appellant was released with positive reports from Homewood which stated that he was better at dealing with and communicating his emotions; that he was no longer blaming the world for his problems but seeing where he can take responsibility; that he was no longer seeing things just as black or white; and that he was responding very well to counselling support.

74. The Appellant’s friends all commented on the difference that they saw in him, and his wife said that there was a significant change in his behaviour at home.

75. After Homewood, the Appellant went to Alcoholics

Anonymous meetings four times a week. He gradually decreased

his attendance at these meetings, and he now attends once per week.

76. The Appellant also saw Dr. Granville, a clinical psychiatrist, for counselling sessions once per week. After one year these sessions were gradually reduced until the point where Dr. Granville reported that the Appellant would only need counselling as issues arose.

77. Upon returning from treatment at Homewood the Appellant began volunteering and working in the community again. He regained his friendships and began dealing with the problems at home. All but one of the community witnesses firmly supported the Appellant’s ability to rehabilitate and resume work.

78. The Hearing Officer did not mention any of this evidence as he considered the Appellant’s ability to reform or rehabilitate. Rather, he repeats the fact that the Appellant did not disclose the full details of the thefts to his character witnesses. He relies upon this to conclude that the Appellant never “stepped up to the plate”.

79. There was evidence at the hearing that the Appellant was arrogant and had a “chip” on his shoulder before the incidents. There was no evidence to suggest that was still the case. In fact, the evidence before the Hearing Officer was that since the incidents the Appellant was “humble” and regretful. Even so, the Hearing Officer concluded that the Appellant is still the same person he was before the arrest.

80. The Hearing Officer contradicts himself from section to section and within sections. He states in some instances that the Appellant did not admit to his wrongdoing and then in other instances, he states that the Appellant pled guilty.

81. Pleading guilty is one of the most indisputable forms of admission of culpability, wrongdoing and responsibility. The Appellant pled guilty in both his criminal trial and in the disciplinary proceeding. The Hearing Officer failed to acknowledge the mitigating nature of this course of action. Indeed, the

Hearing Officer states:

“He needed to step up to the plate and admit his indiscretions and pave the way as a start for rehabilitation.”

82. We find the Hearing Officer’s findings in this section to be unreasonable based upon the evidence.

Damage to the Reputation of the Police Force

83. Contrary to the positive testimony of 12 community witnesses, the Hearing Officer was left with the “very firm conviction that if Provincial Constable Purbrick was to remain a member of the Ontario Provincial Police the damage to the reputation of the service would be high indeed.”

84. In his failure to analyze a very significant aspect of the Appellant’s argument for mitigation, the Hearing Officer committed an error of law.

Consistency of Penalty

85. In this section the Hearing Officer repeats several of the same errors as in other sections. He concludes that the Appellant never dealt with his issues, whereas Dr. Granville released him from further treatment. He erred in concluding that the Appellant stated that if he returned to work, he could not say that he would not commit any more thefts. He erred by again failing to consider the character reference aspect of the evidence of the character witnesses. He erred by comparing the situation where an officer received a criminal conviction with the Appellant’s situation which involved an absolute discharge. He erred by repeating that the Appellant had numerous opportunities to “clear the air”, but had failed to do so, notwithstanding the fact that the Appellant pled guilty at both the criminal proceeding and the misconduct hearing and had apologized.

86. We view the Appellant’s misconduct as very serious, and in the absence of mitigating factors, the penalty of immediate

Hearing Officer.

87. However, for the reasons stated above, we find that the Hearing Officer’s decision does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”, Moraru and Ottawa Police Service (22 April, 2008, OCCPS). Accordingly, we allow this appeal and vary the penalty decision so that the following shall be the penalty against the Appellant:

88. Constable Purbrick shall be demoted to fourth-class constable. He may only be considered:

    a. for promotion from fourth-class constable to third-class constable after he has held the fourth-class constable position for a period of one year;

    b. for promotion from third-class constable to second-class constable after he has held the position of third-class constable for a period of one year; and

    c. for promotion from second-class constable to first-class constable after he has held the position of second-class constable for a period of one year,

    any of such promotions only occurring upon a suitable evaluation, and being in accordance with the established reclassification process of the OPP.

89. It is important that the significant rehabilitation efforts which Constable Purbrick has made not be lost upon his return to the stress of active service. We therefore order that a system be implemented by the OPP to monitor Constable Purbrick’s mental health on the following basis:

    sessions with such qualified clinical psychologist or psychiatrist as Constable Purbrick shall select;

    b. Every three months, for a period of two years, Constable Purbrick shall ensure that the OPP receives from the said qualified clinical psychologist or psychiatrist, a written report relating to his ability to perform and continue to perform safely his professional duties as a police officer;

    c. Refusal or failure by the Appellant to participate in any required therapy sessions or failure to provide the said reports in accordance with the aforesaid conditions, without reasonable excuse, will entitle the OPP to prosecute Constable Purbrick under the Act and to seek his dismissal or such other penalty as may then be thought appropriate.

DATED AT TORONTO THIS 25th DAY OF May 2011

Noelle Caloren

Zahra Dhanani

Dave Edwards

Member, OCPC

Member, OCPC

Member, OCPC

Footnotes

1. 1A “McNeil report is a disclosure document in a criminal proceeding required by the decision of the Supreme Court of Canada in R. v. McNeil, 2009 S.C.R.3 relating to misconduct (as defined in the report) by a police officer involved in the investigation of an accused.