Ogg v. London Police Service, 2012 CanLII 102119

OCPC # 12-03

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

Citation: Ogg v London Police Service, 2012 ONCPC 3

and –

Panel: David C. Gavsie, Chair

Noëlle Caloren, Member

Hearing Dates: September 21, 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:

Glen S. Donald, Counsel for the Appellant

Bruce K. Brown, Counsel for the Respondent

On February 10, 2010, the Appellant, Constable Scott Dwight Ogg, pleaded to and was found guilty of:

a) four (4) counts of discreditable conduct contrary to section 2(1)(a)(xi);

b) three (3) counts of neglect of duty contrary to section

2(1)(c)(xi); and

c) two (2) counts of insubordination contrary to section

2(1)(b)(ii)

all under the Code of Conduct set out in an attachment to Ontario Regulation 123/98, as amended, (the “Code of Conduct”) enacted under the Police Services Act, R.S.O. 1990, c.P.15, as amended (the “Act”).

This is an appeal pursuant to subsection 70(1) of the Act of the penalty of resignation within seven days or dismissal from the London Police Service (“LPS”) imposed by Superintendent M.P.D. Elbers (Retired) (the “Hearing Officer”) on March 29, 2011.
Tammy Landau, a former Member of the Ontario Civilian Police Commission (the “Commission”) was on the panel that heard the appeal on September 21, 2011. Ms Landau resigned as a Member for personal reasons on January 26, 2012. Ms Landau did not take part in this decision.

Decision

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

Background

The Appellant began working for the LPS in 1999 where he had an uneventful career until his suspension in December of 2007 due to alleged misconduct. The misconduct involved thirty-two charges to which the Appellant pled guilty on June 20, 2008. At that time the

Appellant had been admitted to and treated at the Homewood Health

Centre Inc. for alcohol abuse.

The thirty-two counts of misconduct to which the Appellant pled guilty related generally to an incident of damage to a police vehicle, being unfit for duty, numerous counts of neglect of duty and discreditable conduct, deceit and breach of confidence.
Detective Superintendent K. Heslop, who presided over the initial penalty hearing, accepted the agreed statement of facts submitted by the Appellant and the LPS and issued a decision in the nature of a “last chance” opportunity for the Appellant to rehabilitate his career under a number of conditions, including the following relating to a need for ongoing treatment for alcohol dependency. In part his decision reads as follows:

Constable Ogg shall agree to comply with all instructions and directions for substance abuse issued by his treating institution or his treating physician.[…] Constable Ogg undertakes to advise the administration of the London Police Service, on a monthly basis, of all directions and instructions, related to his substance abuse, that he receives from a treating physician or a treating institution by submitting a written report to the Inspector, Human Resources Branch (or his designate). […] These obligations shall continue for a thirty-six (36) months following Constable Ogg’s reinstatement to employment. The purpose of this section is to allow the London Police Service to monitor Constable Ogg’s continued progress in dealing with his substance abuse and the above should be construed broadly enough so as to give full and proper effect to this objective.

Should Constable Ogg fail to abstain from alcohol consumption or breach any direction or instruction for aftercare or if he otherwise breaches any terms of this disposition during the thirty-six (36) months period following his reinstatement to employment, this will entitle the London Police Service to prosecute Constable Ogg under the Police Service Act and seek his dismissal. Given Constable Ogg’s

disciplinary record and the large number of misconducts currently before the Tribunal, this disposition in the nature of a ‘last chance’ for Constable Ogg to rehabilitate his career with the London Police Service and demonstrate that he can be a productive member of this Service.

Following his reinstatement to employment in June 2008, the Appellant was again suspended by the LPS on February 13, 2009 and charged with 9 counts of misconduct.
The 9 counts of discreditable conduct, neglect of duty and insubordination pertain to behaviour which the Appellant engaged in both on and off duty, from late 2008 to early 2009. In brief, the charges relate to the Appellant’s contact with a person known to have a criminal record for drug related offences, a Mr. Ismail, who was observed on a surveillance tape at the Western Fair Slots (the “Slots”) providing the Appellant with an unknown substance (later described by the Appellant as Tylenol) and beer; a failure, gleaned from the same surveillance tape, by the Appellant to abstain from the use of alcohol; a failure by the Appellant to appropriately investigate a domestic violence occurrence in conformity with LPS procedure; neglect of duty relating to the Appellant’s decision to leave his beat without permission while on duty in a designated patrol area; a failure to attend court without reasonable excuse while on suspension; a failure to return all LPS equipment pursuant to the suspension of February 13, 2009, both in a timely fashion and to the appropriate location. The remaining 2 charges pertained to an incident in late

2008 when the Appellant was observed by a member of the public engaged in the erratic driving of his personal vehicle which resulted in infractions of the Highway Traffic Act; and the Appellant’s failure to submit the after care reports that were required pursuant to the June

26, 2008 decision of Detective Superintendent Heslop.

Some delays were incurred in the disciplinary hearing conducted by the Hearing Officer due to the Appellant’s failure to obtain and submit, in a timely fashion, a report regarding his medical condition. As a result, the matter of the penalty to be imposed upon the Appellant was not heard until February 8, 2011, when it had originally been scheduled for July 10, 2010.

Submissions of the Appellant

Mr. Glen Donald, counsel for the Appellant, challenges the Hearing Officer’s penalty decision on the basis of a number of arguments, the first three of which were emphasised at the hearing of the appeal:

(a) the penalty imposed resulted in an injustice given all of the relevant factors that needed to be taken into account in the circumstances;

(b) the Hearing Officer did not take into account the principles related to the duty to accommodate which arises where an identified disability is at the root of the impugned behaviour. In

particular, the Appellant suggests that the Hearing Officer did not take proper account of the fact that he was diagnosed, post- suspension, with generalized anxiety disorder which was the

underlying cause of his dependency to alcohol. On the basis of this argument, the Appellant suggested that the LPS failed to accommodate a legitimate mental illness of the Appellant;

In particular, the Appellant suggests that the Hearing Officer’s misapprehension of the facts is revealed through his use of the

language describing Mr. Ismail as a “criminal associate” and a “known drug dealer”; and further that the Hearing Officer was in error when he stated that the Appellant was charged with the 9 counts of misconduct “a mere three (3) months after being

reinstated” as the correct period was 8 months.

(d) the Hearing Officer did not consider the Appellant’s guilty pleas as a recognition of his appreciation of the seriousness of his

misconduct.

(e) the Hearing Officer did not assess each individual act of misconduct in his determination of the penalty.

With respect to the issue of alcohol dependency, which was the subject matter of the “last chance” decision of Detective Superintendent Heslop, Mr. Donald submitted that the nature of the disability related to this appeal was confirmed, on a medical basis, to be distinct from a simple addiction to alcohol. In addition, he suggested that the LPS had failed in its accommodation obligation in that it did not raise with the Appellant his failure to report on the progress of his treatment for alcohol dependency until after the Slots surveillance tape evidence came to light.
As we understand the Appellant’s argument, he is contending that the LPS ought to have proactively assisted the Appellant in his endeavour to deal with his alcohol dependency and that its silence with respect to the failure to provide monthly reports as to his ongoing treatment or aftercare amounted to a failure to comply with this duty. In this respect, reference was made to the decisions in Hall v. Ottawa Police Service [2008] O.J. No. 5061 (Divisional Court), and Kreiger v. Toronto Police Services Board 2010 HRTO

1361 which Mr. Donald argued stand for the proposition that when dealing with an employee’s known disability, an employer ought to

take proactive steps to inquire about behaviour which on its face is problematic but could be related an acknowledged disability. More

specifically, Mr. Donald suggested that when the LPS became aware of the incident at the Slots, it should have taken proactive steps to inquire about and possibly assist the Appellant in regards to the

observed behaviour.

In this regard, Mr. Donald sought to differentiate between the Appellant’s initial acknowledgement that he suffered from alcohol dependency and the more recently diagnosed condition of anxiety disorder, suggesting that the LPS is required by law to accommodate what was not revealed until the hearing, as the root cause of the Appellant’s alcohol problems. In addition and in connection with the recognition of this newly uncovered disability, he argued that there was no evidence of alcohol being a problem for Constable Ogg following his reinstatement. On that basis, it was suggested that the Hearing Officer ignored the positive assessment with regard to the Appellant’s ability to be reformed.
Mr. Donald also suggested that the Hearing Officer’s decision fails to adequately recognize the guilty pleas which the Appellant entered as evidence of remorse; and that this was coupled with a failure to recognize the Appellant’s positive attitude and improvement in his performance following his return to work in accordance with the Heslop decision.
In summary, Mr. Donald urged the Commission to consider the Appellant’s work and discipline background, namely the fact that he was strongly disciplined in 2008 through the Heslop decision, in conjunction with the most recently recognized disability of the Appellant, to conclude that at this juncture, Constable Ogg has not yet spent his usefulness to the LPS. He submitted that the recognition of legitimate disabilities and the duty to accommodate

are not compatible with the concept of general deterrence, and that the former ought, in effect, to trump the latter.

In this regard, Mr. Donald urged this panel to consider overturning the Hearing Officer’s decision and reinstating the Appellant to a position of Fourth Class Constable, subject to the condition of life long treatment requirements for all recognized medical issues.

Submissions of the Respondent

In his arguments on behalf of the LPS, Mr. Brown submitted that the decision of the Hearing Officer was reasonable in the circumstances and that the appeal should be dismissed.
Mr. Brown submitted that the Hearing Officer did in fact consider all of the relevant factors regarding penalty in making his decision and appropriately concluded that the Appellant was no longer a useful member of the LPS.
He submitted that the standard of review to be applied in a review of the Hearing Officer’s decision is the standard of reasonableness and that his decision is therefore owed deference, absent an error in principle or a failure to consider relevant factors.
Mr. Brown argued that the Hearing Officer did turn his mind to all of the relevant considerations, as evidenced by the factors which he took into account in his decision regarding penalty. He also argued that the decision was lengthy and well reasoned and that it was reasonable in the circumstances for the Hearing Officer to reject the demotion option as inappropriate in the circumstances.
Mr. Brown denied that the LPS failed in its duty to accommodate the Appellant and invoked, in support of this argument, the fact that the Appellant had been allowed to keep his position notwithstanding his guilty plea to thirty-two counts of misconduct in 2008. From the LPS’ perspective, Detective Superintendent Heslop’s decision was in the nature of a “last chance” agreement and the failure of the Appellant to fulfil some of its conditions ought to be considered fatal in the circumstances.
Counsel for the LPS also noted that the most recent medical reports tendered to address the issue of the Appellant’s ongoing issues confirmed that he had remained non-abstinent following the Heslop

decision, up to the date of the penalty hearing which is the subject of this appeal. He pointed out that the duty to accommodate cannot be seen as a limitless obligation. In this respect, counsel referred to the Vaughan–Evans and Toronto Police Service (July 15, 2008, OCCPS) in which it was recognized that: “The analysis to determine if the duty to accommodate has been met presents particular challenges in the disciplinary context where there is often a mix of culpable and non-culpable factors.” In that same decision, reference was made to Hall, supra, wherein it is stated that: “There is a duty to accommodate. However, it is not bottomless or a license to breach statutory duties… it was certainly open to the Hearing Officer to conclude that accommodation in this situation would cause undue hardship on the Service”.

Mr. Brown argued that it was open to the Hearing Officer to find that the “last chance” agreement was not taken seriously by the Appellant and that no manifest error was made by the Hearing Officer justifying a need to interfere with his decision.
Mr. Brown urged us to consider that none of the particular charges levied against the Appellant ought to be considered in isolation but rather, that all incidents of misconduct must be viewed in their totality to determine whether, together, they reveal a pattern of misconduct justifying dismissal. It was Mr. Brown’s submission that in this particular instance, assessed together, all of the incidents, coupled with the reasonable steps taken by the LPS to accommodate the Appellant’s known disability, justified a dismissal as determined by the Hearing Officer.
Finally, counsel for the LPS reminded us that in answer to the question: “Could Constable Ogg continue to be considered a useful member of the LPS?” the answer could only be negative given the Appellant’s record of misconduct.
The parties are in agreement with respect to the factors which must be considered when determining the appropriate penalty in the context of police misconduct, the three main factors being the nature and seriousness of the misconduct; the ability to reform or rehabilitate the officer; and the damage to the reputation of the police force.

Reply Submissions of the Appellant

In reply, Mr. Donald suggested that the employment “landscape” did not change as a result of the 9 additional counts of misconduct and that through the period of employment which the Appellant had enjoyed prior to his suspension of December 2007, there was no evidence of any lack of credibility or non-usefulness to the police force.

Reasons for Decision

The Appellant appeals the penalty imposed upon him.
The standard of review for the Commission with respect to factual findings and with respect to penalty is reasonableness. The Supreme Court of Canada describes the standard of reasonableness in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. 9, 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 and 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.

More recently, in Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the

Supreme Court of Canada referred to the exercise of assessing the reasonableness of a decision as an “organic” one.

Past decisions of the Commission have spoken to the standard of review for penalty appeals, noting that our role on such 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 on clear and cogent evidence, and are articulated in a logical manner.

In practical terms, this signifies that when reviewing the penalty decision of a Hearing Officer, the Commission needs to consider whether the penalty was unreasonable, would amount to an injustice or unfairness or if all relevant factors were properly and impartially considered, having due regard to the expertise of the Hearing Officer. The Commission should not second guess the Hearing Officer or substitute its own opinion. The Commission should only interfere if there has been an error in principle, if relevant sentencing factors have been ignored or facts misapprehended. See Williams v. Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS), Favretto v. Ontario Provincial Police (February 13, 2002, OCCPS), and Karklins v. Toronto Police Service [2010] O.J. No. 418 (Div.Ct).
In reviewing the Hearing Officer’s decision, we do not find that sufficiently significant errors were made to render it unreasonable.
The Appellant has submitted that the Hearing Officer’s decision is unreasonable for essentially two reasons:

(a) the Hearing Officer committed three errors of fact; and

(b) the Hearing Officer erred in his analysis regarding the issue of the

Appellant’s disability and the LPS’ duty to accommodate.

Errors of Fact

In the Appellant’s submission, the Hearing Officer misapprehended the evidence considered under the heading “Seriousness of Misconduct” when he described Mr. Ismail as a “criminal associate” and a “known drug dealer”. The Appellant also argued that the Hearing Officer committed a third error of fact in finding, as an aggravating factor, that the Appellant had been charged 3 months after his reinstatement on June 26, 2008. The Appellant underscored that he was not in fact charged or made aware of any allegations of misconduct until his suspension on February 13, 2009.
The Respondent argues that it was open to the Hearing Officer to characterize Mr. Ismail as a “criminal associate” and “known drug dealer” given that he was under surveillance by security personnel at

the Slots and subsequently by the LPS who arrested him on two counts of possession of a controlled substance for the purpose of trafficking. Mr. Ismail also pleaded guilty to a charge of possession of a Schedule One substance pursuant to the Controlled Drugs and Substances Act.

In the context of an overall assessment of the reasonableness of the penalty imposed by the Hearing Officer, we find that the particular references to Mr. Ismail, if errors, are technical in nature and certainly not fatal to his determination. In fact, the thrust of his analysis regarding the seriousness of the Appellant’s misconduct related to the fact that the Appellant chose to obtain pills, which he later described as Tylenol, and a six pack of beer from Mr. Ismail, rather than using more customary outlets for the purchases. It is undeniable that Mr. Ismail was under surveillance at the time and the reputation of the LPS could certainly be affected by the Appellant’s choice to deal with Mr. Ismail rather than purchase the subject items commercially.
With respect to the Hearing Officer’s finding that the Appellant was charged a mere 3 months following his reinstatement, we accept the Respondent’s position that the error is “a matter of semantics”. As the Respondent pointed out, the misconduct for which charges were laid against the Appellant in fact occurred during the 3 month time frame referred to by the Hearing Officer in that the Appellant failed on an immediate basis to submit the monthly reports ordered by Detective Superintendent Heslop after his reinstatement in June
In our view it took the Appellant a relatively short period of time after he pleaded guilty to the thirty-two counts of misconduct to revert back to the very type of behaviour for which he was penalized in
This is so whether a period of work of 3 or 8 months was involved. Accordingly, the Hearing Officer’s conclusion is not in our

view an unreasonable assessment of the situation, especially in light of the strictness of Detective Superintendant Heslop’s penalty decision and the impact one would expect it to have had on the Appellant’s workplace behaviour.

Failure to Acknowledge the Appellant’s Guilty Pleas

The Appellant contends that Detective Superintendant Heslop failed to consider his guilty pleas in his analysis of the Appellant’s recognition of the seriousness of his misconduct. While the Hearing Officer does not address the Appellant’s guilty pleas under that specific heading, he does in fact allude to them under the heading “Public Interest” where he states that “It is clear that Constable Ogg pled guilty to all charges before him on February 10, 2010. This can be seen as a mitigating factor in my decision.”
A review of the analysis under the various other penalty factors considered by the Hearing Officer suggests that he did turn his mind to the issue of Constable Ogg’s appreciation of the seriousness of the behaviour which led to the charges brought against him. In our view, it was reasonable for the Hearing Office to conclude that the Appellant was not the most remorseful or contrite of police officers and that he could arrive at that conclusion notwithstanding his consideration of the guilty pleas as a mitigating factor. This is so given that there are several elements which should be considered when assessing the appropriate penalty to impose in a disciplinary proceeding, the most significant ones being the nature and seriousness of the misconduct; the ability to reform or rehabilitate the officer, which should be assessed in conjunction with the existence of a handicap or other relevant personal circumstances if applicable; the damage to the reputation of the police force in the event that the officer remains on the force; and the officer’s usefulness should he remain a police officer.

Failure to Acknowledge the Appellant’s Mental Health Issue and the

LPS’ Duty to Accommodate

It is the Appellant’s position that the Hearing Officer’s decision ought to be overturned on the basis that he did not give adequate consideration to the LPS’ duty to accommodate the Appellant to the point of undue hardship.
As we understand the Appellant’s argument, it relates both to failures on the part of the LPS to accommodate the Appellant following his return to work in June 2008 and the Hearing Officer’s failure to acknowledge the generalized anxiety disorder of the Appellant as diagnosed by Dr. Chaimowitz, whose report was tendered at the hearing before the Hearing Officer. We understand the Appellant to

be suggesting that had the LPS followed up with the Appellant after his 2008 reinstatement in respect of his failure to submit monthly reports regarding his ongoing treatment for alcohol abuse, this would have assisted the Appellant in his obligations pursuant to the terms and conditions set out in Detective Superintendent Heslop’s decision.

The duty to accommodate relates to the recognition that a form of disability is at the root of improper conduct and that it must be accommodated. In our view, the LPS fully acknowledged its duty to accommodate the Appellant for his admitted dependency problem with alcohol when it agreed in 2008 to proceed on the basis of an agreed statement of fact and a proposal that Constable Ogg be given the opportunity to prove that he could still be a valuable member of the LPS at the Appellant’s first misconduct hearing. The result was Detective Superintendent Heslop’s “last chance” order.
Detective Superintendent Heslop’s decision imposed upon the Appellant a series of conditions, one of which was to comply with and follow all instructions and directions for substance abuse issued by his treatment institution or his treating physician and to provide monthly reports to the LPS regarding that ongoing compliance. The decision placed the onus on the Appellant, not the LPS. To suggest that the LPS had a further duty to accommodate the Appellant through prompting to ensure his compliance with the decision obligations amounts, in our view to a suggestion that the Appellant was free to abdicate his responsibilities pursuant to the decision. This does not make sense when one considers the fact that in his comments to Detective Superintendent Heslop, Constable Ogg expressed remorse and indicated that he accepted his alcohol abuse issues and had the resources and support to regain his career as a police officer.
To summarize, it strikes us that the reference to the LPS’ duty to accommodate as presented by the Appellant is based on a distorted perception of the post 2008 reinstatement reality. The Appellant was given a chance to rehabilitate his career and a specific road map to get there by Detective Superintendent Heslop which could not have been clearer; to abstain from alcohol consumption and to comply with continued treatment obligations, and report for a thirty-six month period to his employer on this process. This was the Appellant’s responsibility, not the obligation of the LPS.
Detective Superintendent Heslop also made it very clear to the Appellant in his decision, that he could not afford to slip up. We note that the decision could have been appealed if, at the time it was rendered, the Appellant was of the view that it was too harsh given the nature of his admitted disability. The Appellant did not appeal the Heslop decision.
We agree with the Appellant that the Hearing Officer did not specifically address the issue of the Appellant’s generalized anxiety disorder in his decision. Nevertheless, we are not convinced that this failure resulted in the imposition of an unfair penalty on the Appellant. This is because it seems rather obvious to this panel that alcohol abuse or dependency would, more frequently than not, be a manifestation rather than the root cause of an individual’s pattern of behaviour or misconduct. Regardless of the nature of the underlying cause of Constable Ogg’s alcohol abuse problem, the fact is that he conceded he had a problem with alcohol abuse and further, engaged in a course of treatment to assist him in managing his alcohol related disability. Pursuant to the Heslop decision, the Appellant was required to follow treatment and to make monthly reports to the LPS regarding his ongoing efforts to manage his disability. The evidence which the Hearing Officer was entitled to consider was that the Appellant failed to do so.
In addition, it is an undisputed fact that the Appellant’s misconduct was admitted in his guilty plea to the 9 counts of misconduct before the Hearing Officer. It is also an undisputed fact that the misconduct in question was not exclusively limited to behaviour relating to the consumption of alcohol or that could be explained by a generalized anxiety disorder. In fact, there was no evidence before the Hearing Officer that the generalized anxiety disorder was at the root of any of the non-alcohol related forms of misconduct such as the Appellant’s failure to attend court while suspended, his unilateral decision to leave his beat without permission, his failure to properly remit his LPS equipment following his suspension in February of 2009 and his erratic driving observed by a member of the public. The only mention in the medical report tendered at the penalty hearing on the effects of an anxiety disorder relates to the consumption of alcohol. We note therefore that there was no evidence before the Hearing Officer that the generalized anxiety disorder was at the root of any of the non-alcohol related incidents.
The distinction between culpable and non-culpable conduct alluded to by Mr. Brown as referred to in Hall, supra, and the nature of the misconduct become key in assessing the appropriateness of the penalty.
Among the 9 counts of misconduct which the Hearing Officer had to consider, only 2 (the Appellant’s consumption of alcohol and his purchase from Mr. Ismail of a six-pack of beer) can reasonably be said to relate to the existence of a disability. It was therefore reasonably open to the Hearing Officer to consider the non–alcohol related incidents of misconduct before him, in addition to those counts included in the thirty-two counts of misconduct which were non-alcohol related, to assess whether the Appellant had spent his usefulness as a police officer for the LPS.
By any standards, the Appellant’s prior record would be considered extremely serious. In that regard, it was open to the Hearing Officer to find that the “last chance” agreement was not taken seriously by the Appellant.
Furthermore, it was open to the Hearing Officer to consider the Appellant’s overall work record (even excluding the alcohol related counts of misconduct) and to find that dismissal was the appropriate penalty in the circumstances.
For the reasons set out above, the appeal of the Hearing Officer’s penalty decision is hereby dismissed.

DATED AT TORONTO THIS 22ND DAY OF MARCH, 2012

David C. Gavsie Noëlle Caloren

Chair, OCPC Member, OCPC