Pinto v. Toronto Police Service, 2011 CanLII 101570

Ontario Civilian Police Commission

OCPC #11-07

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Pinto v. Toronto Police Service, 2011 ONCPC 6

B E T W E E N:

Police Constable Juin Pinto

Appellant

-and-

Toronto Police Service

Respondent

DECISION

Panel: Roy Conacher, Member

Garth Goodhew, Former Member

Decision Date: May 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

1. Joseph J. Markson- Counsel for Appellant

2. Robert Fredericks- Counsel for Respondent

Introduction

1. A hearing of the Ontario Civilian Police Commission (the

“Commission”) was held at the offices of OCPC on January 14,

2011 concerning an appeal by Constable Juin Pinto (the

“Appellant”) from the penalty imposed against the Appellant by A/Staff Superintendent Jane Wilcox (the “Hearing Officer”) on December 8, 2009 after findings of guilt were made against the Appellant on two charges of misconduct.

2. The two charges of misconduct were:

(a) discreditable conduct contrary to section 2(1)(a)(ix), and

(b) insubordination contrary to section 2(1)(b)(ii),

both under the Code of Conduct set out in Ontario Regulation

123/98 enacted under the Police Services Act, R.S.O. 1990, C.P.15, as amended (the “Act”), and therefore contrary to section

74(1)(a) of the Act.

3. The penalty imposed by the Hearing Officer was demotion in rank from First Class Constable to Second Class Constable for a minimum of one year. After one year the officer may be considered for reclassification to First Class Constable upon being evaluated as suitable, in accordance with the established reclassification process.

4. Further submissions were received by the Commission on

March 8, 2011.

Decision

5. For the reasons set out below, the appeal is dismissed.

6. Constable Pinto is a 45 year old police officer who has been employed with the Toronto Police Service (the “Service”) since September 1990. At the time of the events leading to the charges herein, he was assigned to 31 Division and held the rank of First Class Constable.

7. On May 23, 2007, while off duty at his residence, the Appellant reprimanded his four year old daughter for misbehaviour by striking her on the buttocks. While leading her out of her bedroom he caused her face to strike the door frame resulting in injuries to her lip, cheek and temple. The Appellant’s spouse contacted police and as a result, the Appellant was arrested and subsequently charged with assault under the Criminal Code of Canada.

8. The Appellant was also charged under the Act with discreditable conduct. A Notice of Hearing was issued on October

3, 2007.

9. On May 8, 2008, the Appellant appeared before the Ontario Court of Justice and pled guilty to the criminal charge of assault. Upon conviction, he received an absolute discharge.

10. On July 4, 2008, the Appellant was further charged under the Act with discreditable conduct as a result of having been found guilty of the criminal assault charge. The prior charge of discreditable conduct, relating to the same assault, was subsequently withdrawn at the hearing before the Hearing Officer on December 8, 2009. However, the subsequent charge of discreditable conduct proceeded to a disciplinary hearing before the Hearing Officer.

11. On September 8, 2008, the Appellant’s spouse, from whom he was then separated, discovered a substantial quantity of police property and documents in duffel bags left behind by the Appellant when he moved out of the family home. She called police and, as a result of their investigation, the Appellant was charged with an additional seven counts of misconduct. These

counts covered several types of alleged misconduct, namely insubordination, discreditable conduct, and neglect of duty.

12. The property found included a quantity of the Service memorandum books that were improperly stored at his home and improperly completed, contrary to the Service procedures and directives. Also found were the following items: a hat, badge and memorandum book of the Orangeville Police Service; portable radio extension microphones, a Glock pistol storage container and street directory alleged to belong to the Service; two cellular phones; identification papers belonging to other persons; two collapsible ASP batons; a Confidential Crown Envelope containing documents relating to outstanding criminal charges against five individuals and Provincial Offences charges against other persons which had not been processed in accordance with the Service procedures and policies. In addition, a quantity of ammunition was found which was not stored in accordance with the Service procedures and policies.

13. Prior to the disciplinary hearing before the Hearing Officer, counsel jointly agreed to prepare and file two separate Agreed Statements of Fact, one dealing with the charge of discreditable conduct and the second covering Count One on the charge of insubordination. Those Agreed Statements of Fact were read into evidence, filed as exhibits and were accepted by the Hearing Officer as the basis for findings of guilt on both charges. (transcript: August 19, 2009 p.11-12)

14. On December 8, 2009, the Hearing Officer imposed the penalty which is the subject of this appeal.

Preliminary Issue

15. The Statement of Particulars contained within the Notice of Hearing on Count One for the charge of insubordination referred only to certain memorandum books issued to the Appellant which were not stored in accordance with the Service’s Procedure 13-

16. The Agreed Statement of Fact on this charge referenced a substantial amount of other police property and documentation in the possession of the Appellant even though, on the record, these

items were substantively the basis for counts two to seven. Counts Two to Seven were withdrawn by the Service at the disciplinary hearing.

16. No explanation appeared on the record, in the documentation filed on appeal, or in the oral submissions of counsel as to why there were references to the other police property and documentation in the Agreed Statement of Fact relating to Count One the charge of insubordination when the record appeared to indicate that those other counts were withdrawn. It was therefore unclear to the panel whether these additional facts were merely background information or were to be accepted as the substance of the charge of insubordination under Count One in addition to the cited fact related to the memorandum books.

17. This was particularly difficult to understand in reviewing the reasons of the Hearing Officer. She stated: “Constable Pinto pleaded guilty to one count of insubordination encompassing his failure to adhere to Service Governance and specific Procedures relating to arrests, Criminal Code releases, Provincial Offences Act investigations, Provincial Offences releases, crown briefs, equipment, memorandum books, and management of seized property and exhibits.” (transcript December 8, 2009,p.4)

18. Without sufficient explanation, this statement appeared to contradict the fact that Counts Two to Seven relating to those additional facts were marked “withdrawn” by the Hearing Officer.

19. Consequently, the panel posed certain questions on the issue to counsel and requested further submissions.

20. By letter dated March 8, 2011 counsel jointly responded confirming that, prior to the disciplinary hearing, they had jointly agreed that they would treat count number one as a global insubordination charge encompassing the substantive content of the particulars in Counts Two to Seven by means of the Agreed Statement of Fact which “amplified” the Statement of Particulars for Count One and were to constitute the admitted facts before the Hearing Officer. The letter of March 8, 2011 from counsel

clarified this issue for the panel.

Submissions of the Appellant

21. On behalf of the Appellant, Mr. Markson submitted that the penalty is disproportionate to the facts of both offences. On the charge of discreditable conduct, he stated that a penalty in the range of four to six days is appropriate and on the charge of insubordination, there should be an additional consecutive penalty in the range of twelve to fourteen days.

22. In support of those principal submissions, Mr. Markson asserted that the Hearing Officer erred by failing to give sufficient consideration and weight to the following mitigating factors. On the count of insubordination, the constituent acts of insubordination occurred intermittently over a period of fourteen years, and that such misconduct is not uncommon among top performing officers. There was an absence of meaningful supervision and accountability by the Appellant’s supervisors over those fourteen years. It was argued that, had there been proper supervision, the Appellant would have had the opportunity to stop such misconduct earlier before reaching the level of insubordination.

23. The Hearing Officer also failed to give sufficient consideration to the Appellant’s exemplary employment history and character, and the impact of the proceedings and reduction in rank would have upon his reputation, career, and family financial circumstances.

24. Mr. Markson referred to the testimony of Sergeant Peter Duncan who gave evidence that there was a set of unfortunate mistakes which were compounded by poor supervision and lack of self-discipline on the part of the Appellant. Sergeant Duncan observed that these types of mistakes were not uncommon in top performing officers. He also testified that the Appellant is an officer whose character and reputation is stellar, reliable, experienced and embodies all of the Service’s core values.

25. Mr. Markson also pointed to the Appellant’s exemplary employment history. He has no prior disciplinary record, and is a top performer in his department. He has the respect of his supervisors and possesses superior policing skills and knowledge. He has earned many commendation awards and complimentary entries in his personnel file. His performance appraisals have been above average.

26. Mr. Markson argued that it was an error on the part of the Hearing Officer to impose a global penalty of reduction in rank relating to the assault charge. He stated that the Hearing Officer appeared to apply the same analysis as would apply to a domestic assault between spouses or partners where there was a deliberate striking of the other person. He referred to Constable Andre Kennedy and Toronto Police Service, a decision of Superintendent M. Boyd dated April 26, 2001, in which the officer was found guilty for having struck his spouse three times with a closed fist and received a penalty of forfeiture of eight days.

27. In this case, Mr. Markson argued, there was no deliberate striking and the actions were not part of a domestic argument between partners. The actions of the Appellant, in spanking his daughter for misbehaviour, were lawful but his actions that followed may be described as somewhat excessive but completely accidental and the resulting injuries to his daughter were not intended to be caused. This is a different set of facts to the often seen type of domestic assault yet the Hearing Officer stated that “had the officer been facing only the Discreditable Conduct charge, he would have received a penalty of a forfeiture of twelve days.” (transcript, page 16). Mr. Markson submitted that such an inferred penalty was outside the range of penalties and by her statements in the reasons the Hearing Officer was “amplifying” the assault.

28. Mr. Markson also pointed out, as a mitigating factor, that the Appellant sought therapy for his behaviour over the incident with the daughter and received a positive psychological report.

29. In terms of the insubordination charge, it was submitted that there was no evidence of any technical incompleteness of the

memorandum books. It was a case of inappropriate storage of these records at his home.

30. Mr. Markson asserted that there was a failure on the part of management in not supervising the Appellant appropriately and the Hearing Officer gave only passing comment to this factor. He also argued that there little weight given to the fact that these seven Counts, based on a series of failures on the Appellant’s part to follow the rules and procedures, occurred intermittently over fourteen years and that the officer had a long career of unblemished service. It was submitted that there is no evidence of any intention to deceive or a deliberate failure to follow approved procedures or that there was any theft of property or any personal gain. Mr. Markson submitted that the actions were out of character and, in large part, the result of the Appellant’s supervisors not reviewing or monitoring his compliance with the Service’s policies. He stated that the Hearing Officer failed to consider or give appropriate weight to that historical background.

31. Mr. Markson pointed out that the Appellant’s stellar police service record stands in stark and irreconcilable contrast to the facts of these charges. He submitted that it comes down to a matter of the weight to be given to these factors and the error was to over-emphasize the seriousness of the breach of policies and procedures without giving proper weight to the Appellant’s employment history and the out of character performance surrounding these circumstances.

32. Mr. Markson referred to Green and Toronto Police Service (November 11, 2005) a decision of Superintendent N. Tweedy. In that case, the officer failed to keep a proper record in his assigned memorandum book of some fifty investigations of various occurrences over an eighteen day period. The officer pled guilty and apologized. He had an exemplary employment history apart from one minor infraction and had received a number of awards. It was argued that his admitted failure should not have been applied to conclude that he was not otherwise working up to standards.

33. The hearing officer, in that case, stated that the plea of guilty and expression of remorse was a mitigating factor. He also went on to state that when arriving at an appropriate penalty there had been a gross failure to adequately supervise the officer as observed by the repetitious nature and duration of the misconduct. He expressed the opinion that the supervision had failed the public, the Service and the officer. He stated proper supervision serves to remove or mitigate risk, correct inappropriate behaviour and minimize misconduct through early detection. He considered that supervisory failure to be a significant mitigating factor.

34. Mr. Markson submitted that the Hearing Officer failed to make any meaningful statement about or give proper weight to the failure of supervision as a mitigating factor. In his submission, he noted that had there been progressive supervision and discipline of the Appellant for the breaches of the Service’s policies and procedures much earlier, the issue of progressive discipline might have been appropriately addressed. However there was no progressive discipline applied here and the penalty imposed was shockingly harsh and excessive.

35. Finally, Mr. Markson made the fundamental point that by reason of these errors, the penalty is disproportionate to the circumstances of the offences and to penalties imposed in other cases. The global penalty makes it very difficult to assess what weight was attributed to each of the various facts. He expressed the position that, in view of the Appellant’s employment history it is an inappropriate penalty that he be demoted for such length of time.

36. Counsel asked that the penalty be varied from one of demotion to one of forfeiture of between four to six days on the charge of discreditable conduct and fourteen to sixteen days on the charge of insubordination. Alternatively, he submitted that the period of demotion be reduced from one year to six months.

Submissions of Respondent

37. Mr. Fredericks, on behalf of the Service, submitted that

the Hearing Officer’s decision was not unreasonable and the penalty is within the range of appropriate outcomes having regard to the seriousness of the misconduct. He therefore asked that the appeal be dismissed.

38. In support of these submissions, he pointed out that the Commission should accord significant weight to the decision of a Hearing Officer especially where there has been a careful and thorough analysis of the evidence and the factors of sentencing. He further stated that a penalty should only be varied if there is a manifest error in principle, if the penalty is unreasonable or amounts to an injustice, or if all relevant factors have not been fairly or impartially considered. A penalty should not be varied merely because the Commission might have reached a different conclusion. Hearing officers have expertise in policing issues and are usually close to the needs of the affected service and community. Allen and Hamilton-Wentworth Police Service (1995)

3 O.P.R. 1001(OCCPS); Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707; Walker and Peel Regional Police Service (November 6, 2000, OCCPS).

39. Mr. Fredericks also referred to the factors to be considered in imposing a penalty and the requirement to ensure consistency with similar cases as previously outlined by the Commission. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS); Reilly and Brockville Police Service (1997), 3 O.P.R.

1163 (OCCPS).

40. Mr. Fredericks stated that the Hearing Officer had explicitly considered all of the appropriate sentencing factors in her decision including the mitigating circumstances of the Appellant’s prior exemplary employment history, his guilty plea and remorse for his actions.

41. He submitted that the assault was not merely an accident but an obvious lack of judgment and an act of impulsive anger which caused physical injuries. He pointed out the proscriptions against domestic type assaults that the Service was charged with enforcing in the general public. He asserted that the Appellant had, by his actions and appearance in criminal court, brought the

reputation of the Service into disrepute.

42. In reference to the insubordination charge, Mr. Fredericks submitted that there were a significant number of breaches of policies and procedures committed over a long period of time. He emphasized the failure to complete the required documentation to process serious criminal charges resulting in those charges being lost, the retention of property belonging to the Service or other individuals, and the improper storage of memorandum books and ammunition. There were seven instances in which the Appellant failed in his duties as a police officer. He stated that these were very serious matters and the Appellant did not need a supervisor to tell him to comply. He knew the rules. There was no excuse for his deliberate behaviour and he chose to continue such misconduct over a number of years.

43. Mr. Fredericks submitted that the behaviour of the Appellant, when considered in total context, should be subject to serious penalty consequences. He pointed out that the Hearing Officer could have imposed, in the range of available penalties, a more serious demotion to third or fourth class constable or even dismissal. However, he stated that the Hearing Officer chose to stay away from those higher penalties because she considered the mitigating factors. These were the momentary impulsive flair up of anger, the fact that the Appellant has dealt with that issue through obtaining therapy, that the Appellant accepted responsibility for his actions by pleading guilty, both in criminal court on the assault charge and in the disciplinary hearing on both charges of misconduct, and also his exemplary and lengthy career.

44. Mr. Fredericks also pointed out that the Hearing Officer commented on the lack of supervision as a further mitigating factor. He argued that demotion provides an opportunity for closer supervision. He took issue with the Appellant’s submission that a lack of supervision was partly to blame for the position in which the Appellant has found himself. Mr. Fredericks argued that there was absolutely no evidence before the Hearing Officer that there was any failure on the part of management. He submitted that surely the submission cannot be accepted that, where an

officer is grossly negligent and defaults in complying with policies and procedures, management is to blame.

45. Mr. Fredericks submitted that the penalty imposed, related to the assault conviction, is well within the range of acceptable penalties in other cases of similar factual circumstances. He referred to Bright v. Konkle (1997), 2 P.L.R. 481 where an officer had assaulted his common law spouse for a second time, was charged with assault and found guilty. The resulting penalty, upheld on appeal, was dismissal. Mr. Fredericks submitted further cases wherein the penalty for assault ranged from eight day suspensions to demotion. Grewal and Toronto Police Service (December 4, 1998); Halfpenny and Toronto Police Service (April

22, 2004); Brudlo and Toronto Police Service (June 10, 2003); Konkle and Niagara Regional Police Force (January 4, 1993,

OCCPS); Carmichael and Ontario Provincial Police (May 21, 1998,

OCCPS).

46. He asserted that the penalty imposed on the Appellant for discreditable conduct was not unreasonable. The Hearing Officer’s statement that, had she been dealing only with the assault matter, the penalty would have been a twelve day suspension, was quite consistent with the range of penalties in other prior cases of similar factual circumstances.

47. Based upon the facts as contained in the Agreed Statement of Fact on the charge of insubordination, Mr. Fredericks submitted the penalty was also within the range of outcomes established by prior cases. Bolderson and Metropolitan Toronto Police Force (May 10, 1974, OCCPS); Karklins and Toronto Police Service (September 25, 2007, OCCPS).

48. Finally he submitted that the Hearing Officer considered the repetitive nature of the acts of misconduct over an extended period and came to the conclusion that these were serious acts warranting serious consequences. Mr. Fredericks asserted the Hearing Officer was entitled to weigh these facts against any consideration of progressive discipline

Reasons for Decision

49. The guiding principles for the role of the Commission on disciplinary appeals are now well established.

50. The Commission 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 Service (2002), 3

O.P.R. 1561 (OCCPS).

51. It is also well established that on the appeal of a penalty imposed, the standard of review is one of reasonableness. Has the Hearing Officer considered all of the relevant factors in a fair and impartial manner?

52. In certain limited cases, it may be open to the Commission to reach a different conclusion from the trier of fact. However, the Commission should only intervene if there has been an error in principle or relevant sentencing factors have been ignored. Williams, supra; Wilson and Ontario Provincial Police (November

20, 2006, OCCPS); Karklins, supra.

53. The key factors to be considered in assessing penalty are the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the police service that would occur if the officer remained on the force. Additional factors to be considered are mitigating or aggravating circumstances which include the officer’s employment history and experience, recognition of the seriousness of the misconduct and any handicap or other relevant or personal circumstance, provocation, the need for general or specific deterrence and finally management’s approach to the misconduct in question.

54. Deference must be accorded to the Hearing Officer’s findings, unless examination of the record shows that his or her conclusions cannot be reasonably supported by the evidence.

Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell

Ont 1583 ( Div. Ct.).

55. In considering penalty, while there is no requirement that any one factor be given more weight than another, a decision- maker must give proper weight to the relevant factors in a particular case. It is of utmost importance that a proper balance be achieved. Krug and Ottawa Police Service (January 21, 2003, OCCPS); White and Windsor Police Service, (November 10, 2000, OCCPS); Carson and Pembroke Police Service (July 27, 2001, OCCPS).

56. The Hearing Officer accepted the facts as outlined in the Agreed Statements of Fact and the Notices of Hearing and made the appropriate findings of misconduct on the part of the Appellant.

57. In our opinion, in her 16 page decision, the Hearing Officer correctly and succinctly outlined the evidence that was presented at the disciplinary hearing. Further, she extensively reviewed the submissions made on behalf of the Appellant and the Respondent.

58. We are of the opinion that each of the relevant factors to be considered in imposing penalty were satisfactorily reviewed and accorded the appropriate weight by the Hearing Officer in arriving at her decision.

59. In terms of the charge relating to the assault of his child, the Hearing Officer noted that domestic violence is a very serious matter and a public concern and that substantial resources and significant time of the Service and other levels of government have been devoted to this public safety concern. She stated that the Service’s efforts towards improving responses to victims of domestic violence are diminished when one of its members engages in this type of behavior.

60. The Hearing Officer is entitled to take notice of generally known public information and, specifically, the policies and procedures of the Service, and to conclude that the Appellant’s actions undermined the stated goals of the Service. In the

submissions of both the Appellant and the Respondent, it was agreed that assault is a serious matter.

61. The Hearing Officer considered the comments and observations of the trial judge in the criminal trial and she accepted, as a mitigating factor, the submission on behalf of the Appellant that he misjudged the level of force required and did not intend to cause the injury. She also accepted that the Appellant was “genuinely remorseful” for his role in the events leading to the injury to his child.

62. In our view, none of the statements of the Hearing Officer amount to an “amplification of the domestic assault” as submitted by the Appellant or constitute a manifest error to the point of misplacing the weight to be attributed to this misconduct.

63. In terms of the count of insubordination, the Hearing Officer stated that the Appellant’s actions in deliberate violation of the legislation and Service Governance was a serious misconduct. We agree. While the Appellant suggested that the fact that the offences took place over a prolonged period should somehow be considered as a mitigating circumstance pointing to lack of supervision by management, we do not find that argument persuasive. The Hearing Officer noted that the Appellant repetitively and deliberately disregarded legislated requirements and Service Governance during his fourteen years with the Service and in her opinion there was no excuse for these actions. She stated that he had many opportunities to correct his persistent pattern of behavior but chose to continue. Based upon the facts as admitted in the Statements of Fact, the Hearing Officer was entitled to come to those conclusions and state them in her reasons.

64. The Hearing Officer considered the issue of lack of supervision by senior management and, after stating that she concurred with the submissions that an absence of meaningful supervision and accountability was a contributing factor in the Appellant’s repetitive and deliberate misconduct, she went on to state that she considered that factor as mitigating to penalty. This was a very clear acknowledgement of this factor and, in our

view was more than a passing reference to the issue.

65. There are many statements throughout the reasons wherein the Hearing Officer makes reference to Constable Pinto’s exemplary employment history. We note the following specific notations:

“Constable Pinto has fifteen years of otherwise impressive service with numerous complimentary entries in his personal file and this is his first appearance before the Tribunal. He has the respect and appreciation of past and present supervisors and clearly has a superior level of policing skills and knowledge to offer the Service and the community. His work history suggests that he has the ability to rehabilitate himself from his misconduct and re- establish his reliability in fulfilling all his policing duties and responsibilities.” (page 14)

“To his credit, Constable Pinto did not allow the criminal court and Tribunal proceedings to affect his professionalism and he has continued to be a productive and motivated officer.” (page 15)

These were conclusions supported in the evidence before her, including the Agreed Statements of Fact, the personnel records, the complimentary entries, letters, notations and the evidence of Sergeant Duncan.

66. We have reviewed the cases submitted by counsel and we conclude, firstly, that the Hearing Officer is entitled to consider a global penalty based upon all of the circumstances of the offences in their entirety and the penalty factors set out by the Commission previously. Secondly, the penalty imposed is clearly within the range of penalties in prior cases with similar facts. With reference to the discreditable conduct offence, the range has been from eight days suspension to demotion and in the case of repeat occurrences, dismissal. Konkle, supra; Carmichael, supra.

67. With reference to the insubordination offence, the penalties have ranged from five days suspension to demotion for one year. The penalty in this case is therefore within that range and consistent with other cases.

68. It is clear from a review of the reasons that the Hearing Officer has given careful consideration to the seriousness of these offences and the negative effect upon the public’s trust in the Service and the potential damage to its reputation. She expressed concern regarding the repetitive nature of the breaches of the Service’s policies and procedures. In her reasons she stated that the preservation of the public’s trust, the role of management as well as general and specific deterrence principles, were predominant factors in her determination of an appropriate penalty. We agree with those comments. While taking into account the possibility of rehabilitation, the Hearing Officer stated that when officers demonstrate that they cannot be relied upon to adhere to these laws and procedures, they call into question their ability to continue in their position. In our opinion the penalty imposed is reasonable, and these statements are justified based upon the evidence.

69. Mitigating and aggravating factors were considered. The Appellant pled guilty, and acknowledged his misconduct on both charges. He expressed remorse for his misbehavior. His service record, reputation in the force and extensive policing experience were reviewed and accepted as mitigating as to penalty. It is apparent that the Hearing Officer considered the persistent and deliberate breaches of policy and procedure over a very extended period as deserving of a more serious penalty. We cannot find any error in principle in this approach.

70. The Hearing Officer did not expressly comment upon the possibility of progressive discipline. Since this was a first offence before the tribunal, we have given careful consideration to the other factors she adopted and, while we may have come to a different conclusion, we are unable to find that there was a manifest error in principle or that the penalty is unreasonable or that the relevant factors have not been properly considered in a fair and impartial manner or appropriate weight applied.

71. As stated by the Commission in Precious and Hamilton

Police Service, supra:

“Police officers must obey lawful commands of their superiors if order is to be maintained within the system. Clearly, a police officer cannot pick and choose what orders he wants to obey or when. It is critical to the legal process and to maintaining law and order in a civilized society that police officers follow lawful orders.”

72. On seven occasions over a fourteen year period, the Appellant failed to follow the Service’s policies and procedures. This constituted a repetitive and deliberate practice. These failures resulted in arrested individuals not being processed and victims not receiving justice. It also involved improper storing and retention of police property and property belonging to others for which he had no authority

73. When reviewed in totality, the Appellant’s behavior constitutes a continuing pattern of acts of misconduct. Therefore we concur with the Hearing Officer that general and specific deterrence is warranted in the penalty imposed. There must be a strong message sent that this conduct is clearly not acceptable. These are repeated acts of misconduct by a very experienced officer. In our opinion this was not a mere oversight, or forgetful behavior.

74. We find the argument that lack of effective supervision, which allegedly led the Appellant to continue his failure to follow directives, to be somewhat spurious. There was no evidence before the Hearing Officer that management knew of these breaches. Indeed there was the evidence of Sergeant Duncan that he was surprised to hear of those occurrences. Further, even if senior supervisors knew, there was a duty upon the Appellant as a police officer to comply with the orders of the Service.

75. Accordingly, for all of these reasons, we find that the penalty imposed was reasonable. The appeal against penalty is therefore dismissed.

DATED AT TORONTO THIS 20th DAY OF MAY, 2011

Roy B. Conacher, Q.C. Garth Goodhew

Member, OCPC Former Member, OCPC