OCPC# 12-10

ONTARIO CIVILIAN POLICE COMMISSION

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

2012 ONCPC 10

BETWEEN:

CONSTABLE DESMOND BOVELL APPELLANT

-and-

TORONTO POLICE SERVICE RESPONDENT

DECISION

Panel: David C. Gavsie, Chair Zahra Dhanani, Member Hyacinthe Miller, Member Hearing Date: April 25, 2012

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:

Richard Niman, Counsel for the Appellant Michael Martosh, Counsel for the Respondent

Introduction

1. Constable Desmond Bovell (the "Appellant" or “Const. Bovell”) of the Toronto Police Service (“TPS” or the “Service”) is appealing the penalty of immediate dismissal imposed by Superintendent R. Breen (the “Hearing Officer”) on October 5, 2011.

2. On March 23, 2011, the Appellant pled guilty to seven counts of insubordination and one count of neglect of duty contrary to the Code of Conduct set out as a schedule to Ontario Regulation 123/98, as amended, enacted under the Police Services Act, R.S.O. 1990, c.P.15, as amended (the "Act"). The charges were as follows:

1. Insubordination: Association with G.L.*;
2. Insubordination: Association with C.C.;
3. Neglect of Duty: Failure to Arrest R.D.;
4. Insubordination: Failure to Submit Property Seized from M.B.;
5. Insubordination: Failure to Complete an Assault Cause Bodily Harm Report re H.L.;
6. Insubordination: Association with J.O.;
7. Insubordination: Improper Handling of Property Seized from G.F.; and
8. Insubordination: Improper use of CPIC in relation to G.L., C.C., R.D., M.B. and N.A.

(*Initials are being used throughout this decision to protect the privacy of individuals not directly involved in the proceeding)

3. These charges, detailed below, catalogue over 100 improper CPIC checks, inappropriate relationships with women who the Appellant knew had criminal records and were known to the police and improper or negligent administration of police duties.

4. On October 23, 2011, the Hearing Officer imposed a penalty of dismissal from the Service unless Const. Bovell resigned from the Service within seven days.

5. In appealing this penalty, Const. Bovell requests that we overturn the order for immediate dismissal and substitute a penalty of a long-term reduction in rank to Fourth Class Constable.

6. As virtually all the events giving rise to the charges occurred prior to October 19, 2009, Part V of the version of the Act in force prior to that date governs this matter.

Summary Decision

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

Background

8. Const. Bovell has been a member of the Service since 1991, when he joined as a cadet. He became a 4th Class Constable in March 1992 and, until 2011, had served in a variety of roles in 41 Division. At the time of the events giving rise to this appeal, the Appellant had served as a police officer for 19 years.

9. In early 2007, Const. Bovell’s wife experienced a high risk pregnancy. Their son was born prematurely, with numerous health challenges. That same year, the Appellant’s father was diagnosed with cancer. He passed away nine months later.

10. On July 9th, 2009 the Appellant was suspended from duty.

The Disciplinary Hearing

11. The disciplinary hearing was conducted on April 7 and 8, 2011. A lengthy Agreed Statement of Facts (the “Agreed Statement”) was read into the record. The Agreed Statement reads as follows:

INTRODUCTION

Police Constable Desmond Bovell joined the Toronto Police Service on the 29th of October 1991 as a Cadet in Training. He became a 4thclass Constable on the 31st of March 1992 and was assigned to 41 Division. He is presently assigned to 41 Division. During the time of these occurrences he was assigned to the 41 Division Major Crime Unit and the Primary Response Unit. He was assigned to the Major Crime Unit from the 2nd of April 2001 to the 6th of January 2003 and again from the 10th of May 2004 to the 10th of May 2006. He was assigned to the Primary Response Unit during the remaining time periods. He was suspended from duty on the 9th of July, 2009, and presently reports to the duty desk.

1. Case 48/2009 CHARGE #1:

(INSUBORDINATION–ASSOCIATION WITH G.L.)

G. L. is a female who was born in 1968. She is a self- admitted crack cocaine user and prostitute. She has a criminal record for Possession of a Schedule 1 Substance and Trafficking in the Schedule 1 Substance. She was on CPIC in November of 2008 as being on charges for other drug offences and a caution for having a communicable disease. She had been the subject of numerous contacts with police and was listed in Field Information Reports in 2007 and 2008 as a known drug user. She lives in the 41 Division area and works as a prostitute.

G.L. first met PC Bovell on the 15th of March 2008 when he was assigned to 41 Division Primary Response. PC Bovell had contact with G.L. a number of times while he was on duty, including submitting an occurrence report, querying her on CPIC, and submitting a Person Investigated Card (208) where he noted that she was a possible hooker and a drug user. P.C. Bovell was aware of the criminal history of G.L. He had checked her on CPIC on at least 7 occasions between the period of the 15th of March 2008 to the 14th of December 2008.

P.C. Bovell and G.L. became involved in a personal relationship. On the 6th of September 2008 they went out to a bar together and had a meal and drinks. P. C. Bovell bought G.L. groceries.

On their next outing, P.C. Bovell attended G.L.'s apartment and they had a sexual encounter. This occurred on another occasion at the apartment as well. The next time, P.C. Bovell and G.L. had a sexual encounter in P.C. Bovell's automobile.

P.C. Bovell did not pay G.L. for sex. P.C. Bovell was interviewed by Professional Standards investigators and admitted to having a sexual relationship with G.L.

2. Case 48/2009 charge # 3:

(INSUBORDINATION–ASSOCIATION WITH C.C.)

C.C. is a self-confessed crack cocaine user and prostitute who was born in 1975. She has a criminal record dating back from 1994. Her criminal history includes approximately 14 convictions for offences such as Theft, Failing to Appear in Court, Failing to Comply and Obstructing Police. PC Bovell checked her on CPIC on at least 42 occasions, sometimes more than once a day between the dates on the 11th of January 2007 to the 15th of October 2008 and was aware of her history.

P.C. Bovell first met C.C. when he investigated her on the 29th of September 2005. P.C. Bovell was in uniform and C.C. provided a false name to him. P.C. Bovell later discovered the proper identity of cc and obtained a warrant in the first instance for her arrest. C.C. was arrested on the 22nd of October 2005 and served 13 days in custody.

PC Bovell did not see C.C. for a considerable period of time. In 2007, he obtained a hotel room for the night and had sex with her. Thereafter he had sex with her on at least two other occasions. On a number of occasions, P.C. Bovell obtained a hotel room for C.C. and bought her food.

P.C. Bovell did not coerce C.C. into having sex with him and did not pay C.C. for having sex with him.

P.C. Bovell was later interviewed by Professional Standards Investigators and admitted to having a sexual relationship with C.C.

3. Case 48/2009 CHARGE # 5:

(NEGLECT OF DUTY – FAILURE TO ARREST R.D.)

P.C. had known R.D. since before 2001. He had gone out with her on approximately 4 occasions. P.C. Bovell was aware of the criminal history of R.D. He had checked her on CPIC on at least 23 occasions from the 9th of January 2007 to the 30th of September 2008.

On the 25th of November 2007, R.D. was arrested and charged with Break and Enter. She was released on a Recognizance of Bail with a condition that confined her to her place of residence between the hours of 10 pm and 6 am, 7 days a week, unless in the company of her surety.

Bovell queried R.D. on CPIC 11 times from the 10th of November 2007 to the 18th of March 2008. He was aware of her bail conditions on the 29th of March 2008 including her curfew.

On Friday, the 28th of March 2008, P.C. Bovell was working from 17:00 hours until 03:00 hours. At the conclusion of his shift, he drove west though his residence was east of the city. He observed R.D. walking in the area of Greenwood Avenue and Gerrard Street in the City of Toronto. He did not stop and speak to her, he did not arrest her, he did not call other police officers to report that R.D. was breaching her bail. P.C. Bovell prepared a warrant for arrest of R.D. the next day.

R.D. was arrested on the new warrant on the 21st of April 2008 by other officers.

4. Case 48/2009 CHARGE # 7:

(NEGLECT OF DUTY – FAILURE TO SUBMIT PROPERTY SEIZED FROM M.B. CORRECTLY)

M.B. is a female who was born in 1971. She is a drug abuser. She has an extensive criminal record dating from 2003 to 2006 which includes approximately 30 convictions for offences including Sexual Assault with a Weapon, Forcible Confinement, Uttering threats, Failing to Attend Court, Failing to Comply with Recognizance, Obstruct Police and Communicate for the Purpose of Prostitution. She first met the (sic) P.C. Bovell on the 24th of October 2004 when he arrested her for the offence of Obstruct Peace Officer. P.C. Bovell was aware of the criminal history of M.B. He checked her on CPIC on at least 21 occasions between the 28th of April 2007 and the 4th of January 2009.

On the 20th of April 2008 PC Bovell was working the dayshift from 06:00 hours to 16:00 hours. He investigated M.B. at the beer store parking lot located at Danforth Avenue and Dunstan Road in the City of Toronto. She was in possession of two (2) X–box video games and advised PC Bovell that she had purchased them from another person for $20.00. PC Bovell prepared a Field Information Report that indicated the games were likely stolen. PC Bovell seized the games from M.B. He did not note the seizure of the games in his memorandum book or on the Field Information Report he submitted.

PC Bovell did not submit the X-Box games to the Divisional Locker Management System. PC Bovell left the games alternatively in the Major Crime Unit and the Community Response Unit in 41 Division. P.C. Bovell submitted the games for destruction in July 2009, over one year after he had taken possession of them, and after he had been interviewed about them by Professional Standards investigators. PC Bovell failed to follow Toronto Police service procedure 09–01, Property General, in relation to the evidence.

5. Case 63/2009 CHARGE # 3:

(NEGLECT OF DUTY – FAILED TO COMPLETE AN ASSAULT CAUSING BODILY HARM REPORT AS REPORTED BY H.L.)

PC Bovell and H.L. knew each other well. PC Bovell gave H.L. his personal cellular phone number and she called him often.

H.L. alleged that she was assaulted by her male roommate on the 3rd of September 2006 and that her roommate took all of her belongings, covered her in dog feces, and strangled her. On that day, H.L. called P.C. Bovell directly for assistance. P.C. Bovell was working the dayshift and met H.L. at a nearby restaurant. H.L. reported to PC Bovell that she had been assaulted, covered in dog feces, strangled, and left for dead. She reported her belongings had been taken and she had been left penniless. P.C. Bovell's police escort that day did not speak to H.L. as he sat in a different area of the restaurant. He did not observe any injuries to H.L.

PC Bovell did not submit a domestic assault occurrence report as required and did not offer police assistance.

6. Case 63/2009 CHARGE # 4:

(INSUBORDINATION – ASSOCIATION WITH J.O.)

J.O. is a female who was born in 1987. She supports herself through social assistance and also works as an exotic dancer. She abuses ‘crack’ cocaine and other drugs. She was on a methadone program and was often investigated by PC Bovell when she attended there to receive her prescribed methadone. PC Bovell was aware of J.O.’s employment and substance abuse problems.

J.O. first met PC Bovell in the fall of 2007. He had a personal association with her.

J.O. danced at a strip club in Pickering called the Palace. PC Bovell attended there and paid J.O. to dance for him on two separate occasions during which he may have touched her chest.

7. Case 2/2010 CHARGE # 1:

(INSUBORDINATION – IMPROPER HANDLING OF PROPERTY SEIZED FROM G.F.)

From Friday the 28th to Saturday the 29th of December, 2007 PC Bovell was working the night shift in the 41 Division in the Primary Response Unit from 23:00 hrs to 0700 hours.

PC Bovell was assigned to a radio call for a stabbing at 04:12 hours. PC Bovell and other officers attended the address and a male was placed under arrested for Assault With a Weapon, Weapons dangerous, and Aggravated assault. PC Bovell located and seized a knife used in the stabbing.

PC Bovell assigned the knife property receipt N555412. He submitted the evidence into the Divisional Locker Management System (DLMS) temporary locker prior to reporting off duty. PC Bovell retrieved the evidence from the temporary locker on January 17th 2008 and re- deposited it into another temporary locker again that same day. On Monday, January 28, 2008 PC Bovell retrieved the evidence from the temporary locker. He never submitted it into the DLMS again.

PC Bovell never made any notation in his memorandum book in relation to putting the knife in or taking it out of the DLMS. The evidence was never submitted in the DLMS for courier pick up. The knife was unaccounted for from the 28th of January, 2008 until the trial date.

The trial date was July 6, 2009. The subject officer was notified of and attended court with the knife. He turned the knife over to the case manager Det. Cathy Powell. PC Bovell failed to follow Toronto Police service procedure 09-01, Property General, in relation to the evidence.

8. Case 30/2010 CHARGE # 2:

(INSUBORDINATION – USE OF THE POLICE INFORMATION SYSTEM FOR OTHER THAN POLICE PURPOSES REGARDING G.L., C.C., R.D., M.B. & N.A.)

During the period of the 1st of January 2004 to the 23rd of January 2009, P.C. Bovell was attached to 41 Division. He was alternately assigned to the Primary Response Unit and the Major Crime Unit.

During that period of time at various stages, he had personal associations with R.D., and N.A. and personal relationships with G.L. and C.C. Those persons were women who had been and were involved in criminal behaviour and had criminal records.

The personal relationship with G.L. involved sexual encounters. P.C. Bovell queried G.L. on CPIC approximately 7 times during the period of the 6th of September 2008 to the 14th of December 2008.

The personal relationship with C.C. involved sexual encounters. P.C. Bovell queried C.C. on CPIC approximately 37 times during the period of 22nd of April to July 2007. C.C. left the 41 Division area in 2007. PC Bovell then checked C.C. approximately 22 more times, sometimes more than once a day, between July 2007 and October 2008.

The personal association with R.D. occurred in 2007, did not involve sexual encounters and was a platonic relationship. P.C. Bovell queried R.D. on CPIC approximately 23 times during the period of January 9th, 2007 to September 30th, 2008. R.D. hasn’t had contact with PC Bovell since approximately the 29th of February 2008.

The personal association with N.A. did not involve sexual encounters and was a platonic relationship. P.C. Bovell queried N.A. on CPIC approximately 19 times during the period of March 2006 to December 2008.

P.C. Bovell queried M.B. on CPIC approximately 21 times between the period of the 28th of April 2007 and the 14th of January 2009.

During that time he used Toronto Police Service computer systems to conduct a series of eCOPS, Unified Search, and Canadian Police Information Centre (C.P.I.C.) database checks on those persons which were not for official police purposes.

For the majority of the CPIC checks that P.C. Bovell conducted, he was not in the presence of the persons queried. He was not involved in any specific investigation involving those persons. He had not seen them on most of the dates of those checks and was often involved in unrelated investigations, unrelated radio calls, or on unrelated business at 41 Division police station.

The CPIC checks P.C. Bovell conducted were not related to police business.

12. Five civilian witnesses appeared, including a family physician, a psychologist, the Appellant’s wife and brother, and the facilitator of a support group for men. Two police witnesses testified on behalf of the defence.

The Appeal Hearing Appellant’s Submissions

13. Mr. Niman stated that he did not dispute the facts. He agreed that Const. Bovell’s misconduct was egregious and reprehensible. The Appellant acknowledged this with his guilty plea. However, the Hearing Officer’s decision was not reasonable. Mr. Niman’s arguments focused on three points:

14. Const. Bovell’s personal circumstances;

15. his mental health issues; and,

16. the positive outlook for rehabilitation.

17. Mr. Niman argued that the Hearing Officer failed to consider all of the Appellant’s mitigating circumstances. In Walker and Peel Regional Police Service, (July 11, 2000, OCCPS) the Commission identified three factors that were key to an assessment of penalty:

(1) employment history or experience, (2) recognition of the seriousness of the offence, and (3) handicap or other relevant factors.

15. From February to April 2007, the Appellant and his family experienced several traumatic incidents. Const. Bovell’s wife experienced difficulties with her pregnancy. There were serious concerns about the survival of their infant son. The Appellant’s father was diagnosed with cancer and died. At about the same time, Const. Bovell and his wife entered counselling for marital difficulties. Mr. Niman stated that, but for these events and the resulting depression, the Appellant would not be before the Commission.

16. Mr. Niman argued that the Hearing Officer misapprehended the medical evidence and failed to give sufficient consideration to the explanation that the Appellant had a deteriorating mental condition at the time of the events leading to the misconduct charges. He argued that the stressors in the Appellant’s personal life and the behavioural issues at work were directly related, as they led the Appellant into a downward spiral. Mr. Niman noted that the Appellant’s wife and brother testified that they saw “drastic changes” in Const. Bovell’s mood and outlook on life.

17. He drew our attention to evidence from the Appellant’s family physician, Dr. Rockman, who indicated that he had been treating Const. Bovell for depression for three months. The Appellant was also seen by a psychologist, Dr. Klarreich, who concluded that depression led to his self-destructive behaviour. Mr. Niman submitted that Dr. Rockman’s testimony was not undermined in cross-examination. Counsel argued that the Hearing Officer erred by finding that the conclusions of the medical professionals were limited because they did not treat the Appellant while he was depressed, but relied on his subsequent self-reporting and descriptions of his symptoms.

18. Mr. Niman submitted that, in the face of Dr. Klarreich’s uncontradicted medical evidence that “deep depression and self-destructive behaviour…led to his unusual and unlawful behaviour”, the Hearing Officer erred by holding that Constable Bovell’s “medical condition may provide a partial explanation”… but that “it cannot be regarded as a cause and certainly not an excuse for his misconduct”. The Hearing Officer further erred in concluding that there was no nexus between the depression and the behaviour leading to the misconduct charges. Delano and Niagara Regional Police Service, (October 28, 1998, OCCPS).

19. Mr. Niman pointed to page 57 of the Sentencing Decision to illustrate how the Hearing Officer misapprehended the medical evidence. The Hearing Officer stated:

I accept, with some reservation, that [the Appellant’s] medical condition may have influenced his judgment and some aspects of his behaviour as described in the Agreed Statement of Facts. However, a close examination of the timeline of his misconduct relative to stressors in his personal life and the emergence of his medical condition raise doubts about the nexus of the two.

20. He argued that this interpretation was in direct contrast to that of Dr. Klarreich’s evidence. If the Appellant’s depression is to be given any weight as a mitigating factor, it is not reasonable to bifurcate those events that occurred prior to the diagnosed period of depression from those that occurred during the period of severe life stressors and Const. Bovell’s unusual behaviour.

21. Mr. Niman submitted that Const. Bovell had an almost impeccable employment record. He had worked for the Service for 19 years and was a good police officer. Further, the Appellant had responded well to medication and counselling and had made a remarkable turnaround.

22. Mr. Niman asserted that the Hearing Officer did not adequately assess the Appellant’s guilty plea as recognition of the seriousness of his misconduct, his cooperation with the Professional Standards Branch investigation or his employment record as mitigating factors in sentencing. He failed to accord adequate weight to the Appellant’s attempts at rehabilitation. Andrews and Midland Police, (May 1, 2003, OCCPS). There was a wealth of evidence before the Hearing Officer about the Appellant’s efforts; however, these were given short shrift and the positive outlook for the Appellant’s future was downplayed.

23. With respect to the Hearing Officer’s observations about the Appellant’s demeanour during the disciplinary hearing, Mr. Niman noted that Const. Bovell’s actions merely reflected his discomfort in that setting.

24. The Appellant’s personal circumstances led to his deteriorated mental state and should have mitigated towards a more lenient penalty. Toronto Police Service v. Kelly, 2006 CanLII 14403 (ON S.C.D.C.). The Hearing Officer erred in rendering a decision that was harsh and excessive. Mr. Niman asked us to overturn the Hearing Officer’s decision and substitute a penalty of a lengthy demotion.

Respondent’s Submissions

25. Mr. Martosh, for the Respondent, submitted that this is a straightforward case of serious misconduct. There can be no dispute about the law that applies. He stated that the Hearing Officer’s conclusions were reasonable and the decision had no manifest errors. White and Reid and Windsor Police Service, (November 10, 2000, OCCPS). The Hearing Officer assessed the evidence, correctly considered and balanced all of the relevant sentencing principles and made his decision based on the relevant factors. The decision was based on clear and convincing evidence that supported the penalty imposed.

26. Counsel submitted that the Commission should accord significant deference to a penalty decision, particularly where the Hearing Officer has carefully and thoroughly analysed the evidence. 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. Allen and Hamilton-Wentworth Police Services (1995), 2 O.P.R. 1001 (OCCPS), Favretto v. Ontario Provincial Police [2004] O.J., No. 2301 (Ont. Div. Ct.) He argued that there is no absolute standard against which to review penalty. Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 at 708.

27. Further, he noted that it is well established that the Commission’s function on appeal is not to second-guess a hearing officer’s decision but to consider his role as the trier of fact, examine his findings and determine the reasonableness of his conclusions. Walker and Peel Regional Police Service, (November 6, 2000, OCCPS).

28. Mr. Martosh stated that the Commission should only reach a different conclusion where “there can be no other determination than the conclusions of the adjudicator, as to the credibility of the witnesses, cannot be reasonably accepted” or they are “void of evidentiary foundation”. Williams, supra, Constable David Deviney and Toronto Police (1999), 3 O.P.R. 1315 (OCCPS), at 1319. Mr. Martosh argued that, in assessing the evidence, the Hearing Officer explicitly turned his mind to the credibility of the various witnesses. Based on what he heard and saw, he was in the position to conclude that, “In contrast to the other six witnesses, I did not find Constable Bovell to be forthright throughout his testimony.”

29. Mr. Martosh submitted that the issues before us are:

30. Did the Hearing Officer apply the appropriate sentencing principles?

31. Did the Hearing Officer apply the sentencing principles appropriately?

32. Did the Hearing Officer, after weighing and considering all the evidence and relevant factors, impose a fair, reasonable and just sentence? and,

33. Did the Hearing Officer, in making his decision, engage in a manifest error in principle?

34. Mr. Martosh noted that the Hearing Officer went into considerable detail as he reviewed the pertinent mitigating and aggravating factors. He struck a proper balance with respect to the sentencing factors and imposed a sentence that reflected the paramount and subsidiary factors. There is no requirement for a hearing officer to give one factor more weight over another. Alexander Krug and Ottawa Police Service, (January 21, 2003, OCCPS).

35. He submitted that the Hearing Officer properly found the Appellant’s misconduct to be very serious in nature. Over a period of more than three years, the Appellant’s conduct entailed:

• inappropriate and intimate relationships with vulnerable, drug dependent women who were prostitutes and who had extensive criminal histories;
• failure to arrest an individual for a criminal act;
• two incidents of improperly seizing property;
• failure to comply with Service Procedure on Domestic Violence; and,
• over 100 abuses of the CPIC database for personal reasons unrelated to police business.

32. He further argued that Const. Bovell’s misconduct goes to the heart of a police officer’s sworn duties. In his decision, the Hearing Officer stated at pages 51 and 52:

Concern about domestic violence and its pernicious effect has been well documented. It has been recognized as a critical public safety issue throughout Canadian society…

In keeping with this concern, the Toronto Police Service has maintained a longstanding Service Priority to more effectively address all aspects of domestic violence. As a result, the Service has adopted a leading role, alongside an array of its community partners, to improve the capacity to prevent, investigate and prosecute domestic related crimes, as well as provide assistance to its victims….

…Constable Bovell failed to fulfil any of his obligations required by Service Procedure 05-04 – Domestic Violence when H.L. alleged she had been assaulted. Constable Bovell did not complete an occurrence report, which would have enabled an investigation to be initiated which wold have determined the veracity of her allegations, a concern he gave as a reason for not responding appropriately or adhering to the Procedure. In these circumstances, there was no discretion regarding the reporting requirement available to Constable Bovell and he did not provide H.L. with any assistance whatsoever.

33. With regard to the CPIC checks, the Hearing Officer stated:

Such wholesale misuse of the CPIC system represents a direct violation of the RCMP contract, Service Governance and an abuse of the privacy rights of the six citizens involved.

34. Mr. Martosh submitted that the Appellant’s misconduct warranted a penalty that reflected the gravity of the offences, each of which revealed misconduct of a serious nature. When viewed cumulatively, the misconduct was both alarming and fatal to Const. Bovell’s continued employment as a police officer.

35. He argued that the Hearing Officer specifically turned his mind to the Appellant’s ability to reform and rehabilitate. The Hearing Officer found Const. Bovell’s attempts at rehabilitation to be insufficient in comparison to the magnitude of the misconduct.

36. It was submitted that the Hearing Officer did assess mitigating factors such as the guilty plea and Statement when he wrote:

...this can be regarded as and indicative of Constable Bovell’s acceptance of responsibility and remorse for his actions and is worthy of mitigation.

37. The Respondent argued that the Hearing Officer found that the aggravating factors far outweighed the mitigating factors, noting that the Hearing Officer considered Const. Bovell’s employment history, and found that the circumstances called for the most severe penalty. He considered that while dismissal would undoubtedly have an effect on the Appellant’s family, “it is the inevitable consequence of his misconduct.”

38. Mr. Martosh submitted that the Hearing Officer adequately assessed the medical evidence. He accurately found that the medical evidence was not conclusive, as the diagnoses were based primarily on self-reporting of symptoms by the Appellant in 2010 about events that happened in 2007. Counselling and medical treatment had occurred after the fact as well. There was no contemporaneous evidence that Const. Bovell was experiencing depression.

39. The Respondent submitted that the penalty was appropriate and within the range available to the Hearing Officer. The Commission has held that there is neither uniformity nor an absolute standard in policing. Gibson and Waterloo Regional Police (1986), 2 O.P.R. 707 (O.C.C.). The Hearing Officer found that the case before him was distinguishable from all of the cases presented to him.

40. Mr. Martosh submitted that the Hearing Officer followed the principle enunciated in Guenette and Ottawa-Carleton Regional Police Service, (December 18, 1998, OCCPS). It was submitted that the Hearing Officer was in the best position to evaluate the relevant sentencing factors.

41. In conclusion, Mr. Martosh submitted that the Hearing Officer did not commit any manifest error of principle and that he imposed a fair, reasonable and just sentence. He asked us to dismiss the appeal.

Reasons for Decision

42. Const. Bovell appeals the penalty of dismissal imposed by the Hearing Officer.

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

44. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir:

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.

45. This has been affirmed in the Supreme Court of Canada Decision Newfoundland and Labrador Nurse’s Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (Can LII), at para. 18, where the Court noted with approval the following comments of Evans, J.A. in the case of Canada Post Corp. v. Public Services Alliance of Canada, 2010 FCA 56 (Can L II):

Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review”…

”perfection is not the standard”…

Reviewing courts should ask whether, “when read in light of the evidence before it and the nature of its statutory task, the tribunal’s reasons adequately explain the bases of its decision”…

46. 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 (Div. Ct.).

47. 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).

48. 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.).

49. In the Hearing Officer’s 61 page sentencing decision, we find that he carefully analysed the elements contained in the Agreed Statement for each of the charges, he summarized the documentary evidence and witness testimony, case law and submissions and outlined the principles he considered.

50. The Hearing Officer completed a thorough analysis and properly weighed the relevant evidence before him.

51. We conclude that the Hearing Officer assessed the relevant factors in reaching his decision on penalty, namely:

• the nature and seriousness of the misconduct;
• the officer's ability to reform and rehabilitate;
• damage to the reputation of the Service;
• the officer’s employment history and experience;
• the officer’s recognition of the seriousness of the misconduct;
• the need for general and specific deterrence; and
• consistency with prior disciplinary decisions.

52. The Hearing Officer’s decision provides a clear line of analysis, and cites evidence to support the reasoning leading to his conclusions. The decision meets the standard of reasonableness.

The Nature and Seriousness of the Misconduct

53. The Hearing Officer was unequivocal in concluding that the cumulative acts of misconduct took the offences to the most serious level. At pages 52 and 53, he stated:

Taken in its entirety, Constable Bovell’s overall pattern of misconduct is replete with evidence of his disregard for the Service’s Governance, Priorities, and Core Values as well as the Principles and Duties found in the Police Services Act. For over three years he exhibited a protracted and consistent indifference to his Oath of Office and the Standards of Conduct expected of all police officers. Constable Bovell chose, on numerous occasions, to disregard his sworn duty as well as the rules of his profession and compromised the integrity and good name of the Toronto Police Service.

54. Also at page 53, the Hearing Officer made the following comments:

The Agreed Statement of Facts do not illustrate that Constable Bovell has committed isolated acts of misconduct or that his actions were the result of a momentary lapse in judgement. On the contrary, much of his misconduct, notable regarding his associations with G.L., C.C., and J.O. and the unauthorized CPIC checks, was clearly planned, deliberate and occurred over a prolonged period. I find that as a senior member, Constable Bovell, as he acknowledged during his testimony, had sufficient training and more than a decade of operational experience to make him aware of his obligations and the gross impropriety of his actions. I also find that there is a clear connection between his off duty conduct and the occupational requirements of a police officer and reputation of the police force, as per section 80(2) of the Police Services Act.

55. Further, the Hearing Officer properly concluded that abuse of CPIC is a serious offence. CPIC is relied on by police officers in the performance of their duties. The restricted use and the sanctity of the CPIC database goes to the heart of officer safety. Unauthorized use cannot be condoned and must be deterred. In the case before us, there were not one or two unauthorised CPIC checks but over one hundred over an extended period of time. (emphasis added)

56. In the past, the Commission has upheld the penalty of dismissal of police officers for CPIC breaches that have not been as egregious. Mamak and Ottawa Police Service, (February 15, 2011, OCPC). The Commission has previously stated: “that in certain cases, one event, or one instance of a lack of judgment justifies termination” Nothing and Ontario Provincial Police (1996), O.P.R. 1081 (O.C.C.P.S.).

The Officer's Ability to Reform and Rehabilitate

57. The Hearing Officer found that, due to the nature of the misconduct, there was no viable option with respect to the officer’s ability to rehabilitate or reform.

58. The Hearing Officer was not convinced that medication and counselling, embarked on after the Appellant had been charged with misconduct, were indicative of rehabilitation.

59. The Hearing Officer acknowledged that there were six witnesses who testified on behalf of the Appellant and gave positive reviews of his character and behaviour. He noted however, that none of the six witnesses were aware of the Appellant’s misconduct until after he had been suspended from work.

60. All of the defence witnesses testified to Const. Bovell’s suitability as a police officer and commitment to his work. The Hearing Officer did not reject this evidence, but he found that it did not offset his concerns about the seriousness of the offences, the ongoing nature of the offences and the harm caused to the individuals involved:

...when I assess his potential to rehabilitate or reform, such mitigation does not offset the overwhelmingly aggravating factors found in the Notices of Hearing and Agreed Statement of Facts. In my considered opinion, to permit Constable Bovell to continue to serve as a police officer would represent unacceptable risk to both the Service and the public.

Medical History

61. With respect to the argument that the causes of Const. Bovell’s misconduct were traumatic family events and depression, the Hearing Officer found that there was no clear nexus established between the traumatic family events, the nature and frequency of the misconduct and the timeframe during which the misconduct occurred.

62. The Hearing Officer noted that Dr. Rockman had not noticed any signs of depression until July, 2010. We note that the Appellant had already been suspended and it was Const.Bovell who attended his physician’s office at the insistence of his wife. Dr. Rockman prescribed medication based on Const. Bovell’s self-reported symptoms. The Hearing Officer found that Dr. Rockman’s familiarity with the Appellant’s mental health was limited.

63. The Hearing Officer found the evidence of Dr. Klarreich, the psychologist, to be inconsistent. Dr. Klarreich had not conducted any clinical assessments or psychological testing to assess whether Const. Bovell was suffering from depression. The Hearing Officer heard that Dr. Klarreich reached the conclusion that the Appellant was depressed when he “discovered that Dr. Rockman was prescribing an anti-depressant.” The Hearing Officer was not convinced that the diagnosis of depression had been corroborated. He found that the medical evidence was neither clear nor convincing.

64. In light of the evidence on the record, we find the Hearing Officer’s assessment and conclusions about the medical evidence to be reasonable. The medical practitioners indicated that they relied on self-reported symptoms in their diagnosis of depression. No empirical assessments, diagnostic testing or mental health examinations were conducted. Without evidence to the contrary, it was within the scope of the Hearing Officer’s decision-making role not to accept either the diagnosis or the evidence of the medical professionals who had treated the Appellant after the fact.

65. The Hearing Officer properly accorded limited weight to the testimony of Mr. Chu, a volunteer facilitator for the support group attended by Const. Bovell. Limited weight was given to the letter from the Bovell family pastor, as he had scant knowledge of the magnitude of the misconduct. Except for the Appellant’s version of events, the only testimony that could speak to his behaviour was that of Mrs. Bovell who made observations about the Appellant’s behaviour and suspected his depression in 2007. However nothing further was done about it until July, 2010.

66. Dr. Frank Bovell, the Applicant’s brother, lives in Winnipeg. He visited about twice a year. Around the time of their father’s death on November 28, 2007, Dr. Bovell testified he noticed something wrong. He spoke about it first with Mrs. Bovell and later with the Appellant. Nothing further was done until July 2010.

Nexus between Traumatic Family Events and Misconduct

67. The charges against Const. Bovell stem from misconduct that began in April 2006 and continued to July 2009. Const. Bovell’s father was diagnosed with cancer and his wife experienced a high-risk pregnancy from February to April 2007.

68. The Hearing Officer heard evidence and argument that the family trauma and subsequent depression were the cause of the Appellant’s behaviour. This argument was rejected. The Hearing Officer stated that:

His depression was first identified and treated in July 2010, a year after his misconduct was first investigated...while his medical condition may provide a partial explanation it cannot be regarded as a cause and certainly not an excuse for his misconduct...

69. Based on our review of the record, we find this conclusion to be reasonable.

Damage to the Reputation of the Service

70. The role of a police officer is to protect members of the public and safeguard their privacy. Understandably, police officers are not to associate with individuals who are in conflict with the law.

71. The Hearing Officer is a senior police officer, well familiar with the role of a police officer. At paragraphs 53 and 54, supra, we quoted the Hearing Officer from pages 52 and 53 of his decision.

72. In addition, the Hearing Officer found that the misconduct before him was so serious that the damage was beyond repair. He said at pages 59 and 60:

Without question, should the extent and nature of Constable Bovell’s misconduct be revealed to the general public, it would cause significant damage to the reputation of the Toronto Police Service. Furthermore, were Constable Bovell retained by the Service and deployed again in the community it would cause irreparable damage to its reputation and be an affront to the expectation of the public regarding the conduct of its police.

73. We agree. The Hearing Officer’s conclusion is reasonable and correct, given the facts. The Appellant engaged in a protracted series of acts of misconduct which, individually, would have been considered serious. We concur that the sheer volume of his misdeeds resulted in such an egregious breach of a police officer’s sworn duty that, should the totality of his misconduct become widely known, the damage to the Service would be severe.

Employment History and Experience

74. The Hearing Officer considered that Const. Bovell had:

• been a police officer for 19 years, with generally complimentary performance appraisals;
• received 18 complimentary entries in his personnel file; and,
• won awards and commendations for his investigations and arrests.

75. The Hearing Officer found that these mitigating factors were outweighed by the aggravating factors. We find this conclusion to be reasonable.

Recognition of the Seriousness of the Misconduct

76. The Hearing Officer acknowledged the guilty plea and the Appellant’s co-operation with Professional Standards. However, he was not convinced that Const. Bovell was wholly cognisant of the gravity of his misconduct.

77. Assessment of demeanour falls within the Hearing Officer’s purview. He observed that Const. Bovell was not forthright during his testimony, and that he was evasive. The Hearing Officer stated at page 57 that:

...he exhibited a troubling reluctance and insensitivity about aspects of his wrongdoing, particularly his obligation to provide assistance to the vulnerable women involved in his incidents of misconduct i.e. those with mental illness and drug dependencies and victims of domestic assault...

His sometimes evasive responses to direct questions conveyed that he has not fully accepted complete responsibility for his poor judgement and associated wrongdoing. He displayed a degree of ambivalence towards the significant adverse impact his behaviour may have had on others as well the reputation of the Service. I observed that during his testimony he often appeared indifferent to the seriousness of the matters being explored in the Tribunal which directly affected him. In fact it was not until the end of his testimony, and only when prompted by defence counsel that he earnestly engaged in the proceedings and voiced his desire to remain a police officer. I find Constable Bovell’s assertion that he had a plan to rehabilitate and return to policing profession in many respects inconsistent with his frequent minimizing of the seriousness of his misconduct during his testimony.

78. As the trier of fact, the Hearing Officer must assess credibility and weigh the relevant evidence. In his decision, he summarized the evidentiary elements he considered relevant and illustrated how they informed his reasoning and his conclusions. We find no error in his approach.

79. From our review of the record, it is clear that Const. Bovell’s misconduct was repeated over a period of years. The Hearing Officer properly concluded that the misconduct was more serious because it occurred repeatedly over a significant period of time. The Appellant’s involvement “in inappropriate sexual relationships with people he had known on the street and tried to help by giving them food and shelter” could not be viewed as carrying out his lawful duties. Nor were the over 100 checks he conducted on these same individuals, using police electronic databases, explainable as isolated incidents, despite his testimony that “that was how he worked”.

80. We find that Const. Bovell’s conduct does not demonstrate a single act of human frailty but a pattern of misconduct that continued until his actions came to the attention of Professional Standards.

General and Specific Deterrence

81. Police officers must conform to the highest standard of conduct. Having assessed general and specific deterrence, management response, the reputation of the police service and the potential for rehabilitation, the Hearing Officer properly concluded that, on balance, the Appellant’s actions had brought his usefulness to the Service to an end.

Consistency with Prior Disciplinary Decisions

82. The Hearing Officer considered the submissions on penalty but found that, as a whole, the circumstances were so unique that the cases presented to him, which “varied considerably”, were not helpful. He considered the twenty- seven historical cases presented and found that, while the facts were “distinguishable from those in Const. Bovell’s case, the principles articulated are relevant.” Guenette, supra.

83. We find that the Hearing Officer appropriately analyzed the facts. He weighed the evidence and applied the appropriate sentencing factors to reach a penalty consistent with the seriousness of the offences. We find that he committed no manifest error. Trotter v. College of Nurses (Ontario) [1991] 44 O.A.C. 302 (Ont. C.A.) and Woolaston v. Canada (Minister of Manpower & Immigration) 1972 CanLII 3 (SCC), [1973] S.C.R. 102 (S.C.C.) and Guenette, supra.

84. In terms of consistency of penalty, we considered the cases submitted by counsel in oral argument and in their briefs of authorities. The penalty of dismissal falls within the range of available sanctions. Parsons and Halton Regional Police Force, (1 May 1, 1989, O.P.C.), Coon and Toronto Police Service, (10 April 2003, OCCPS).

85. Taking the reasons for the Hearing Officer’s decision in their entirety, we conclude that there has been no misapprehension of the evidence, no misapplication of the law or other manifest error that would justify our intervention. His judgment and sentencing decisions pass the test of reasonableness.

86. The Hearing Officer’s decision on penalty reflects a correct understanding and application of the law, is based upon the clear and cogent evidence contained in the record, and is articulated in a logical manner. In the face of the Agreed Statement and the other facts in evidence, his conclusion that dismissal from the Service is the only appropriate penalty, is reasonable.

87. Accordingly, the appeal is dismissed.

DATED AT TORONTO THIS 9th DAY OF JULY, 2012

David C. Gavsie Chair, OCPC

Zahra Dhanani Member, OCPC

Hyacinthe Miller Member, OCPC