Constable Timothy McPhee v. Brantford Police Service, 2012 CanLII 102122

OCPC-#12-13

ONTARIO CIVILIAN POLICE COMMISSION

IN THE

MATTER OF

THE POLICE

SERVICES ACT,

R.S.O. 1990,

C. P.15, AS AMENDED

Citation: McPhee v. Brantford Police Service, 2012 ONCPC 12

BETWEEN:

CONSTABLE TIMOTHY MCPHEE

APPELLANT

-and-

BRANTFORD POLICE SERVICE

RESPONDENT

DECISION

Panel:

David

C. Gavsie, Chair

Roy B . Conacher Q.C., Member

John Rodriguez, Member

Hearing

Date:

March

28, 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

Bernard J. Cummins, Counsel for the Appellant

Lynda Bordeleau, Counsel for the Respondent

This is an appeal of a penalty decision imposed upon the

Appellant.

Introduction

1. Constable Timothy McPhee (the “Appellant” or "Const.

McPhee") took his oath as a police officer with the

Bra ntford Police Service (the "Service") on August 12,

2008. B y November 8, 2008 he had started to work independently on his own in a patrol car.

2009. On June 11, 2010 Const. McPhee was suspended from duty as a result of alleged misconduct which is the subject of the appeal. At the time of suspension, he was a third class constable.

2010. On May 17, 2011, at a hearing before Supt. Neale Tweedy (Ret.) (the "Hearing Officer"), the Appellant pleaded guilty to five charges of misconduct under section 80(1) (a) of the Police Services Act, R.S.O. 1990, C.P. 15 as amended (the "Act"). There were three charges of Insubordination under Section 2 (1)(b)(ii) and two charges of Discreditable Conduct under Section 2 (1)(a)(xi) of the Code of Conduct, Ontario Regulation 123/98 (the “Code).

2011. An Agreed Statement of Facts (Agreed Statement) was filed at the disciplinary hearing before the Hearing Officer.

2012. On October 28, 2011, the Hearing Officer rendered his sentence. Const. McPhee was to be dismissed from the Service in seven days unless he resigned before that time.

2013. Const. McPhee appeals the penalty of dismissal imposed by the Hearing Officer.

Preliminary Matters

Motion

7. The Service moved for an order that any document or record relating to this matter before the Ontario Civilian Police Commission (the "Commission") not be released to the public until the identities of persons whose privacy had been invaded were anonymized [sic], including documents or records relating to the hearing before the Hearing Officer and this Tribunal. Further, the Service included in its Motion that any publication of information relating to this appeal to the Commission including the proceedings before the Hearing Officer similarly anonymize the identities of such persons including the publically accessible decisions of the Hearing Officer and this Tribunal.

8. Mr. Cummins on behalf of the Appellant stated he was not contesting the Motion.

9. After reviewing the Motion Record and in accordance with the Privacy Policy of the Commission, the Motion was granted and its substance so ordered.

Application of the Act

10. The events giving rise to the charges herein occurred both before and after the amendments to the Act and Regulations on October 19, 2009. From the Record of proceedings before the Hearing Officer, there were a very limited number of occurrences prior to the amendments and the vast majority occurred thereafter. For the purposes of this appeal, the Commission has referred only to those occurrences which took place after October 19, 2009 and has applied the relevant provisions of the Act and Regulations accordingly.

Decision

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

Background

12. Const. McPhee was charged under the Act, and on May 17,

2011 pleaded guilty to the following offences summarized as:

a) Insubordination under Section 2(1)(b)(ii) of the Code relating to 29 improper CPIC checks on A.A. and B.A. between the dates of October 28, 2009 and January 11, 2010;

b) Insubordination under Section 2(1)(b)(ii) of the Code relating to 122 improper CPIC checks of members of the public, civilian members of the Service and sworn members of the Service between August 21, 2008 and May 12, 2010;

c) Insubordination under Section 2(1)(b)(ii) of the Code relating to·12 improper police information portal (PIP) searches, between December 18, 2009 and May 12,

2010, of members of the public, including a female victim of a sexual assault, family members and friends;

d) Discreditable Conduct under Section 2(1)(a)(xi) of the Code relating to inappropriate sexually charged e-mails exchanged on official Service equipment with A.A. between the dates of October 10, 2009 and February

7, 2010, some e-mails occurring while ostensibly on duty; and;

e) Discreditable Conduct under Section 2 (1) (a) (xi) of the Code relating to leaving an auxiliary police officer alone in a police vehicle on November 4, 2009 while meeting with A.A. [Note: the underlined was not included in the charge]

13. Const. McPhee had received prior informal discipline. A brief description of such discipline is as follows:

a) on February 6, 2009, Const. McPhee received a written admonishment for conducting a traffic stop o f

a female where no violation had occurred and did so without going out of service. The woman reported that the Appellant had subsequently telephoned her three times. Const. McPhee offered an explanation that he was trying to recruit her as an informant, but the woman felt he had been stalking her;

b) on January 19, 2010, Const. McPhee was given a written admonishment and forfeiture of four hours after he sent a sexually charged inappropriate message to a fellow officer, using Service communications equipment, and the message was inadvertently sent to all users of the communications network; and,

c) on February 10, 2010, Const. McPhee forfeited eight hours related to a series of inappropriate messages discovered in the process of preparing disclosure to the Crown Attorney. In addition to inappropriate personal and sexually suggestive comments, the messages referred, in an inappropriate manner, to the Appellant’s previous discipline for misusing Service communications equipment.

14. In addition to the dates of the Appellant’s commencement of his employment with the Service until his suspension, the following is a further summary of what is contained in the Agreed Statement:

a) during the time of the Appellant’s active duties he read the Service’s Rules and Regulations;

b) the Appellant was bound by, and had knowledge of the policies and procedures of the Service relating to Canadian Police information Centre (CPIC) and Police Information Portal (PIP), and that accessing either was to be for official police business only;

c) the Appellant was bound by, and had knowledge of policies and procedures of the Service relating to the transmission of messages on police issued equipment;

d) the Appellant was bound by and had knowledge of the Service's Code of Ethics and Code of Conduct, as well as its Mission and Values Statements; and

e) the Appellant admitted the facts outlined in the Agreed Statement forming the basis for the five charges against him to which he pleaded guilty.

Appellant's Submissions

15. Mr. Cummins asserted that CPIC violations are serious but there was no weighing of evidence in this case by the Hearing Officer. He referred to the case of Jackson and York Regional Police Service (December 12, 2011, OCPC). Similar to the facts in that case, Mr. Cummins submitted that there was no credible assessment of witness testimony by the Hearing Officer; hence the outcome is not defensible and the appeal should be allowed.

16. Mr. Cummins pointed out that there is no precedent case where dismissal has occurred because of abuse of CPIC.

17. He stated that the Hearing Officer made findings of fact that were not supported by the evidence or the Agreed Statement. Specifically, he claimed the Hearing Officer’s finding indicated that Insp. Pottruff's evidence was forthcoming, yet this witness’s statements were misleading. An example was the statement that Officers B and C were disciplined after receiving and responding to text messages from the Appellant requesting information concerning a domestic call regarding A.A.'s home situation and they responded to the Appellant.

18. Mr. Cummins claimed that Insp. Pottruff testified that these other officers were disciplined but that was misleading because in fact there was no discipline. Also Officer B was no longer a member of the Service when Insp. Pottruff spoke to him.

19. Mr. Cummins continued that Officer C was not disciplined, but Insp. Pottruff gave evidence before the Hearing Officer

that all of those involved in the incident with the Appellant were. The Hearing Officer believed Insp. Pottruff's evidence which was not true.

20. Similarly, Insp. Pottruff indicated the civilian involved was spoken to, yet he did not know that. The evidence was not capable of belief, yet the Hearing Officer did not make a credibility finding. Mr. Cummins submitted that it shows that management of the Service has a different approach to discipline for different members of the Service.

21. Officer C was never spoken to, never disciplined. Insp.

Pottruff misled the Hearing Officer and Mr. Cummins submitted that the Hearing Officer mistakenly relied upon Insp. Pottruff’s misleading evidence.

22. Mr. Cummins stated that there were similar issues regarding the letters of support for Const. McPhee, namely that Insp. Pottruff's evidence had misled the Hearing Officer.

23. Mr. Cummins argued that the prosecutor has an obligation to be open and not to mislead. There were 10 items of information that various individuals, who supported the Appellant, had told to Insp. Pottruff, the head of the Service's Professional Standards Branch, that were not in his memo prepared for the disciplinary hearing yet the Hearing Officer made no assessment about Insp. Pottruff's conduct or his credibility.

24. The Hearing Officer did not take into account the evidence of Const. D of the Brantford Police Association that (i) Const. McPhee suffered a financial loss of pay of $10,900.00 by not being promoted, (ii) Const. McPhee had incurred legal fees of

$10,000, or (iii) Const. McPhee had submitted a letter of remorse and the Hearing Officer had not considered its contents.

25. Mr. Cummins referred to paragraph 71 of the Hearing Officer's Penalty Decision alleging that Const. McPhee did not provide reasons for these CPIC checks. Mr. Cummins argued

that the onus of proof lies upon the prosecution. He submitted that Const. McPhee had to answer the questions asked or face an insubordination charge. Also, the Hearing Officer speculated that some of the CPIC checks were conducted as a matter of voyeurism which Mr. Cummins stated was not mentioned in any of the charges against Const. McPhee and there was no evidence supporting that conclusion.

26. Mr. Cummins also pointed out in paragraph 67 of the Hearing Officer's Penalty Decision, he uses the word "unscrupulous" to describe some CPIC queries by Const. McPhee. There was no evidence that this was the case.

27. In his interview with Professional Standards, Const. McPhee gave responses to questions as to why he performed CPIC checks, such as "to satisfy my curiosity", "out of boredom". Mr. Cummins questioned why the Hearing Officer would call Const. McPhee "unscrupulous".

28. Mr. Cummins submitted that no evidence was presented by the prosecution regarding the charge that the Appellant left the auxiliary officer alone in a police vehicle. However, the Appellant agreed to accept that fact and pled guilty.

29. Mr. Cummins submitted that the Hearing Officer made a moral decision regarding the Appellant’s conduct. The moralism in the decision could not have come from the language of the charges or from the Agreed Statement.

30. Mr. Cummins continued that the Hearing Officer did not properly consider the Appellant's letter of remorse. It was not discussed in any meaningful way in paragraph 105 of his Penalty Decision.

31. Referring to counts 3 and 4, Mr. Cummins admitted the correspondence was provocative and distasteful, but it was intended for the recipient, not anyone else. He is not disputing it was transmitted during employment.

32. Dismissal is reserved for the worst cases where the usefulness of the officer has been annulled.

33. In paragraph 55 of his Penalty Decision, the Hearing Officer talks of dismissal for egregious behaviour, and then refers to the case of Williams and OPP (1995), 2 OPR 1047 (OCCPS). That was a case of clear neglect and false statements to cover up the officer's actions. The Commission held the officer could not be rehabilitated. The officer showed a pattern of behaviour. He lacked the ability to exercise serious moral judgment. Mr. Cummins argued that the Appellant did not display this behaviour at all as he confessed and did not lie.

34. Mr. Cummins cited the case of Coon and Toronto Police Service (April 10, 2003, OCCPS). In this case, Const. Coon conducted over 26 CPIC and motor vehicles inquiries on his ex-partner and her new partner. Even though Const. Coon stated he was remorseful, yet he tried to justify his behaviour. He stated that this was not the case with Const. McPhee.

35. Mr. Cummins referred to the case of Bradley Christian and

Constable Dean Grbich and Aylmer Police Service (August 2,

2002, OCCPS). He pointed out that Const. Grbich had been found guilty of criminal activity but yet, he was not dismissed from the service.

36. Similarly, in Wildeboer and the Toronto Police Service and Aylin (November 7, 2006, OCCPS), the officer had conducted numerous CPIC queries that were not for the purpose of his official police duties. Mr. Cummins pointed out that he was not dismissed.

37. Mr. Cummins proceeded to discuss the Appellant's usefulness as an officer and the issue of what has to be released out of a police officer's disciplinary record. The Supreme Court of Canada indicated in R. v. McNeil, 2009 SCC 3, 238 CCC (3rd) 353, (S.C.C.), there is only automatic disclosure if it is directly related to the circumstances of the accused. Mr. Cummins

stated if such is not the case, then one must bring an "O'Connor application" to show there was some impact on the officer’s credibility.

38. Mr. Cummins stated that the Hearing Officer talked of the usefulness of the Appellant in paragraph 128 of his Decision. It was the Hearing Officer's conclusion that the Appellant's ability to testify would be negatively impacted due to the CPIC searches. There was no evidence called on the issue of the impact upon the Appellant's credibility. The Hearing Officer relied on the quote from an article of Mr. Justice Ferguson set out in paragraph 127 of his Decision.

39. Mr. Cummins referred to paragraph 32 of the Respondent's Factum, where there is reference to the decision in Morden and Peel Regional Police Service (March 20, 1997, OCCPS) for the proposition that a hearing officer can rely on his own knowledge. The present case is different. There was no evidence adduced as to how the Service deals with disclosure of evidence. The Hearing Officer could not rely on his experience. There was no evidence called. The Hearing Officer's findings were speculative, wrong and not supported by any evidence.

40. Mr. Cummins argued that there was no credibility assessment of any witness at the hearing. There was no Commission decision referenced in support of a penalty of dismissal for CPIC searches. There were erroneous findings by the Hearing Officer who did not take into account the costs of the hearing borne by Const. McPhee nor his lost wages. Decisions were misinterpreted by the Hearing Officer. Regarding the Appellant’s usefulness in the future, the Hearing Officer’s conclusion was unreasonable and no evidence was called on this point.

41. Mr. Cummins reiterated that dismissal is reserved for the most egregious offence and cited Constable J.B. Pigeau and O.P.P. and Christopher Taillon (March 5, 2009, OCCPS). In this case the Commission recognized that Constable Pigeau's conduct was a momentary lapse of judgment from his normal

conduct. The penalty was varied by the Commission and a reprimand was substituted.

42. Mr. Cummins said that the dismissal penalty applies where an officer has shown a lack of professionalism or for the most egregious cases. This case is not one that justifies a dismissal penalty.

43. The Appellant asked that the appeal be granted, the penalty of dismissal be revoked and a penalty of demotion be substituted.

Respondent's Submissions

44. Respondent's counsel, Ms. Bordeleau, stated that the Hearing Officer's Decision pointed out the serious misconduct shown by the Appellant, namely 151 breaches of CPIC and 12 of PIP. These constituted invasion of privacy for citizens and work colleagues of the Appellant.

45. Ms. Bordeleau pointed out that these breaches started when the Appellant was no longer supervised. Also they were continuous. These breaches continued even after attempts were made to correct the Appellant's behaviour by his superiors, including being put on notice about improper CPIC searches.

46. Ms. Bordeleau stated that the Appellant's Factum was not always "full". In fact, she insisted it had no specifics. There was nothing in it about Insp. Pottruff. In particular, paragraph 14 contained the following blanket statement: "The Hearing Officer failed to make any credibility assessments of any witnesses and, as such, the disposition is unreasonable."

47. Ms. Bordeleau pointed out that in his Amended Notice of Appeal (paragraph 3), the Appellant alleged that the Hearing Officer made moral judgments about him and the impact on victims without evidence to support these issues. In fact, she stated that at no time did the Hearing Officer make a moral

judgment about the Appellant.

48. Ms. Bordeleau pointed out that, in paragraph 3 of the Appellant's Amended Factum, the Appellant's allegations that Insp. Pottruff gave false testimony are irrelevant and she argued that the Appellant was using the Inspector’s evidence as a red herring in this case. She pointed out that Insp. Pottruff's following up the Appellant's letters of support was to provide a summary of what had occurred and were not attempts to hide any positive comments in those letters. In any event, none of this was delineated in the Appellant's Factum.

49. Ms. Bordeleau said the issue of credibility was raised in the penalty stage of the hearing, not in the fact finding stage. There was no error by the Hearing Officer.

50. Ms. Bordeleau stated that the Hearing Officer did not have to address each and every point about discipline of other officers regarding the text messages sent by the Appellant to them.

51. Ms. Bordeleau referred to paragraph 75 of the Respondent's Factum where there is a quotation from Krug and Brantford Police Service, January 21, 2003 (OCCPS), that, "The seriousness of the offence alone may justify dismissal." The Hearing Officer looked at the nature and extent of the misconduct.

52. Ms. Bordeleau also referred to a recent Ontario Court of Appeal decision in Jones v. Tsige 2012 ONCA 32 where the Court recognized the importance of the right to privacy of all citizens from "intrusion upon seclusion."

53. The Hearing Officer used the word "voyeurism" in paragraph

71 of his Decision. He did so in the context of his entire

Decision. He had the Agreed Statement and the past discipline record of the Appellant and could draw such inference relating to the Appellant’s conduct.

54. Ms. Bordeleau submitted it is important, when reviewing the issue of rehabilitation to look at the chronology of events, including the following informal discipline:

a) on February 2009, the Appellant received informal discipline being a written admonishment after D.D. had made a complaint. After he was given the written admonishment, the Appellant queried D.D on CPIC six more times [Agreed Statement, pages 11, 12];

b) on December 12, 2009, the Appellant sent an inappropriate message to another police officer, K.K., using his in car computer which also distributed the message to all PRIDE users signed on to that network. For that, the Appellant received informal discipline on January 19, 2010, forfeiting 4 hours from his overtime bank. [Agreed Statement, page 13];

c) on December 20,2009, the Appellant, while on duty engaged in an in-car computer discussion with A.E., made light of the discipline he received regarding his message to K.K. and talking about her not wearing underwear. The Appellant received informal discipline on February 10,

2010 forfeiting 8 hours from his overtime bank and agreed to review the Service’s Rules and Regulations. [Agreed Statement, page 12];

d) on January 11, 2010, the Appellant queried another Service officer on CPIC who had previously been involved in a domestic dispute. [Agreed Statement, page 9];

e) on January 28, 2010, the Appellant queried himself twice on NICHE. [Agreed Statement, page 9];

f) on February 20, 2010, he sent a message to his platoon members asking for information in a domestic dispute incident they may have attended. [Agreed Statement, page 10].

55. Ms. Bordeleau said as the Appellant was being disciplined, he was continuing to commit misconduct. Obviously, the Appellant did not take the discipline seriously. The Hearing

Officer had all of this information before him in the Agreed Statement. There was no error. Rather there were reasonable inferences for the Hearing Officer to draw.

56. In paragraph 67 of his Decision, the Hearing Officer refers to the Appellant's sense of entitlement and self-restraint, and provides that the Appellant's motivation in the absence of explanation appears unscrupulous. Ms. Bordeleau submitted that was not an error. The comments were made based on the evidence before the Hearing Officer.

57. The Hearing Officer concluded in paragraph 105 of his Decision that by his actions, the Appellant had repudiated the employment relationship. He also referred to his behaviour as aggravating to the Appellant’s rehabilitation. This was based on the totality of the evidence, especially in the Agreed Statement. The Appellant showed no respect for the public trust.

58. Ms. Bordeleau stated that this is not just a case of improper use of CPIC and PIP, 151 and 12 improper uses, respectively. The Appellant dealt with an auxiliary member improperly. He used police equipment inappropriately.

59. Ms. Bordeleau submitted that in looking at paragraphs 125 through 128 of his Decision, the Hearing Officer properly understood the McNeil case. Clearly the members of the community will see what the Appellant did as damaging to the Service. The public looks at police misconduct. Police are accountable to the public. The Hearing Officer was insightful, not in error.

60. No evidence needed to be called on the question of usefulness. That is for determination by the Hearing Officer, namely to make an objective assessment. The Hearing Officer draws on his policing experience. Can the officer continue to police the community? It is all about the public trust. The fact that Brantford is a small community is relevant.

Decision

61. This is an appeal by the Appellant of the penalty imposed upon him.

62. At the outset, it is important to state the standards upon which this Commission is to base its review of the decision rendered by the Hearing Officer in this case. Those standards have been previously expressed by the Courts and the Commission.

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

64. The standard of review with respect to the interpretation and the application of the law is one of correctness. Law Society of Upper Canada v. Neinstein (2010) 2010 ONCA 193, 99 O.R. (3rd) 1 (Ont. C.A.).

65. The Supreme Court of Canada has described the standard of reasonableness in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No.9 at para. 47:

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

66. That standard has been affirmed in Newfoundland and Labrador Nurse’s Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (Can LII), para. 18 where the Court noted with approval the comments of Evans J.A. in Canada Post v. Public Service Alliance of Canada, 2010, FCA

56 (Can LII):

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 basis of its decision”

67. Past decisions of this Commission regarding the standard of review of penalty decisions have noted that our role is not to second guess the Hearing Officer’s decision but rather to review that 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), and Whitney v. Ontario (Provincial Police) [2007] O.J. No.

2668 (Ont. Div. Ct.)

68. 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).

69. 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 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 (Ont. Div. Ct.).

70. The issues in this appeal are:

(i) Did the Hearing Officer base his conclusions and findings of credibility upon clear and cogent evidence?

(ii) In making his findings and conclusions, did the Hearing Officer ignore relevant evidence or otherwise commit any manifest errors requiring the intervention of this Commission?

(iii) Did the Hearing Officer apply the appropriate and relevant sentencing principles?

(iv) Was the sentence imposed fair, reasonable, just and consistent with other disciplinary cases bearing in mind

all of the circumstances of this case?

(v) Was the decision expressed in a transparent, logical and intelligible manner?

71. Having thoroughly reviewed the record of the disciplinary proceedings and Reasons for Decision, we have concluded that the Hearing Officer appropriately analyzed and weighed the facts contained in the Agreed Statement and all of the other relevant evidence in making his findings and conclusions. We also conclude that he considered and applied the correct principles of sentencing, including consistency, in arriving at the penalty imposed.

72. In his 28 page Penalty Decision, we find that the Hearing Officer thoroughly and logically canvassed and expressed the basis for each of his conclusions.

73. For the reasons expressed herein, we can find no manifest errors requiring our intervention.

74. In the Amended Notice of Appeal, the first ground of appeal alleges that the Hearing Officer speculated when he determined the Appellant was no longer useful to the Service, that no evidence was presented on this point and the Hearing Officer failed to consider the principles outlined in R. v. McNeil, 238 CCC (3rd) SCC 353 in his analysis on the issue of the impact upon the officer’s ability to testify in future and consequently his continuing usefulness to the Service.

75. In the analysis, at paragraphs 124 to 128 of his Decision, the Hearing Officer reviewed the Appellant’s conduct in the context of assessing the possible impact upon his future testimony in court. The Hearing Officer correctly identified the issue in stating:

When considering the damage to the reputation of the Service I ask: Is damage repaired after the serving of a penalty or does it continue in the future when the officer is required to testify in court?

When considering whether Const. McPhee can testify without impediment in the future, I note this is not a finding of perjury or corrupt practice, while something less, it is a gross abuse of authority and privacy. And, (sic) privacy arguments are often central to defence counsel queries in criminal courts daily.

If it is suspected that a defendant has had his or her Charter rights violated by police action through a search or seizure or improper investigation, then the relevance of the officer having shown a prior propensity for abusing his authority will be exposed and explored with vigour and may prove damaging to credibility.

76. The Hearing Officer then referred to a comment by Mr.

Justice George Ferguson in Review and Recommendations

Concerning Various Aspects of Police Misconduct, Volume 1, January, 2003 (Ferguson Report) that while an accused has no right to automatic access to every aspect of a police officer’s employment history, “the accused does have a right to access the officer’s disciplinary record, if that record is relevant”. We note that the reference to Ferguson J.’s comment is taken directly from the decision of Charron, J. in McNeil, supra, a case cited by the defence. The Hearing Officer was clearly aware of the principles of disclosure and is entitled to draw upon his experience and expertise as a former senior police officer in expressing his conclusions on that issue. It is not a breach of the rules of natural justice for a hearing officer to consider relevant juridical sources of information without notice to the parties provided that no new issues are raised by such reference. No new issue was raised by the reference to the comments of Justice Ferguson. Borghi v. Canada (Employment & Immigration Commission) (1996), 1996 CanLII 12450 (FCA), 133 D.L.R. (4th) 542; 1996 Carswell Nat 368 (Fed.C.A.); Bell Canada v. Communications, Energy and Paperworkers Union of Canada, 2005 Can LII 63047 (CIRB); Nason and Hamilton-Wentworth Regional Board of Commissioners of Police, unreported, October 21, 1984 (Ont. Cty. Ct.); Correa and Toronto Police Service, (February 19,

2009, OCCPS).

77. The Hearing Officer clearly considered the cases referred to by counsel and particularly Hinds and Ontario Provincial Police Force, (March 16, 1990, OCP). While he distinguished the factual circumstances of Hinds, the Hearing Officer at paragraph 128, went on to express his opinion, related to the possible effect of the officer’s disciplinary record, that “the Justices’ and Commission’s comments are relevant and while not determinative of usefulness, it is a factor for consideration when considering damage to the reputation of the Service”.(emphasis added).

usefulness to the Service was spent solely upon the basis of any compromising of his ability to testify in any future court case but correctly indicated that it was a factor for consideration. It is clear that the Hearing Officer also considered the principles espoused in the McNeil case in his conclusion that the discipline record of Const. McPhee could be an issue raised by defence counsel in the future. We do not find any manifest error or omission on these points.

79. The second ground of appeal is that the Hearing Officer made little reference to the cases provided by counsel, none of which Mr. Cummins argues, supports dismissal, particularly since there was no allegation of deceit or corruption. He asserted that this constitutes an error in law.

80. With respect, we cannot agree. The Reasons for Decision refer to a number of cases, cited by both prosecution and defence, in the Hearing Officer’s analysis of the live issues before him. At least one such case refers to the range of penalties including, specifically, dismissal for serious breaches of policies and rules relating to use of the CPIC system. Coon and Toronto Police Service (April 10, 2003, OCCPS). The Commission has confirmed in other cases that dismissal is within the range of penalties for misuse of CPIC. Mamak and Ottawa Police Service, (April 13, 2011, OCPC); Parsons and Halton Regional Police Force, (May 1, 1989, OPC).

81. The third ground of appeal is that the Hearing Officer failed to evaluate or make any findings of credibility of any witnesses.

82. Four witnesses testified, two for the prosecution and two for the defence. Fifty-four exhibits were admitted into evidence including the Agreed Statement. The prosecutor corroborated the information contained in the Agreed Statement by introducing documentary evidence referenced in the Agreed Statement through the testimony of Insp. Kent Pottruff. The Hearing Officer accepted the Agreed Statement and the

establishing the essential factual elements of the disciplinary charges.

83. A review of the transcripts of the disciplinary hearing discloses that a substantial amount of time was taken during the penalty phase of the hearing by both the prosecution and defence in examination and cross-examination of the witnesses relating to circumstances surrounding prior misconduct by Const. McPhee for which he had already been disciplined. It is apparent from the record that the prosecution was attempting to bolster its case for dismissal. The defence was likewise attempting to challenge the credibility of the prosecution witnesses regarding how their evidence was allegedly misleading the tribunal on the conduct and motives of the officer.

84. At paragraph 53 of his Decision, the Hearing Officer stated: Before considering penalty I need to instruct

myself that Constable McPhee is not to be resentenced for previous violations aforementioned and resolved informally. They are relevant to final penalty as part of the officer’s work history and his ability to reform and are necessary to provide context to the CPIC and PIP breaches to which he has pled guilty.

85. The Hearing Officer was correct in directing his mind to the proper issue to be addressed, namely, the misconduct of the Appellant that led to the five disciplinary charges before him, not the circumstances surrounding prior discipline decisions. Many of the questions raised by the defence were directed to the discipline of other officers who responded to Const. McPhee’s texted inquiry about police attendance at a domestic dispute involving a female with whom he was intimately involved. The apparent purpose was to challenge the credibility of the testimony of prosecution witnesses regarding their view of the conduct and motives of Const. McPhee and to point out the discriminatory treatment by management of Const. McPhee in the prior discipline

administered by management. Similarly, issues were raised by the defence regarding evidence of prosecution witnesses which questioned whether a female was being properly cultivated according to the Service’s policies as a confidential informant by Const. McPhee, as he alleged, or was being stalked by him, as she alleged. Again, all of these questions were raised to challenge the credibility of the testimony of the prosecution witnesses but related to circumstances surrounding the conduct of Const. McPhee for which he had already been informally disciplined.

86. These issues, including the question of the cultivation of a female as an informant, were not central to the discipline process on the misconduct charges before the Hearing Officer. He correctly identified that the primary issue was the unauthorized use of CPIC and PIP as set out in the Agreed Statement and the record of prior discipline was only relevant when it came to considering the Appellant’s work history and ability to reform.

87. At paragraph 96 of his Decision, the Hearing Officer accepted as credible the supportive mitigating evidence of the defense character witnesses.

88. In the third ground of appeal, the Appellant alleged that the Hearing Officer made no credibility assessment regarding the conduct of Insp. Pottruff who, it was alleged, misled the tribunal concerning the disciplining of other officers and the information he inserted into a memorandum relating to his contact with defence character witnesses.

89. A careful review of the transcripts and submissions in the disciplinary proceedings indicates that there was a thorough canvassing of the evidence of Insp. Pottruff at the initial hearing. At the specific request of the defence, Insp. Pottruff doubled checked the information he had given in his earlier testimony and he provided corrections and clarifications of such prior evidence. The Hearing Officer afforded the defence considerable opportunity to explore these issues and make submissions. By the conclusion of the disciplinary hearing all

of evidence related to the evidence and conduct of Insp. Pottruff was placed before the Hearing Officer. This was not a case where there was conflicting evidence requiring a determination of respective credibility. The transcripts reveal that during both examination-in-chief and cross-examination the full facts were brought out.

90. It is essential for a hearing officer to justify and explain in clear terms any finding of credibility of a witness where the evidence of that witness is relied upon to substantiate a fundamental issue or a critical conclusion in support of a decision. However, a hearing officer does not need to address every inconsistency in testimony unless it is necessary to do so to resolve a fundamental issue. Clifford and Ontario Municipal Employees Retirement System, 2009

ONCA. We must also bear in mind the previously expressed principles that a hearing officer is a layperson not legally trained and, in such circumstances, the reasons should not be subject to microscopic examination. There should not be a focus on mistakes which do not affect the reasonableness of the decision when read as a whole. Orr and York Regional Police Service (March 25, 2011, OCCPS).

91. It is apparent from a review of the Reasons for Decision as a whole that the Hearing Officer placed little, if any, weight nor did he rely upon the evidence of the prosecution witnesses, specifically regarding their conduct in circumstances surrounding the prior disciplinary matters, in arriving at his Penalty Decision. He focused his review upon the live issues before him being the unauthorized searches on CPIC and PIP, the inappropriate use of the Services communication systems and the leaving of an auxiliary officer alone without supervision. The Hearing Officer committed no manifest error in not referencing every piece of evidence before him. He identified the evidence he relied upon, analyzed the salient facts and constructed a reasonable decision. He did not ignore relevant evidence. Woolaston v. Canada (Minister of Manpower & Immigration) 1972 CanLII 3 (SCC), [1973] S.C.R. 102 (S.C.C.).

92. For example, in his decision, he dealt with Const. McPhee’s assertion that he was cultivating the female person as an informant. The Hearing Officer reviewed the evidence that supported the officer’s version and then stated at paragraph

33 of his Decision:

I am not sure want [sic] to make of it in the absence of a fuller inquiry, but a finding of fact is not required because what is relevant is that he made 6 CPIC inquiries of Ms. D after he received the written admonishment.

93. In the fourth ground of appeal, the Appellant submits that the prosecution attempted to mislead the Hearing Officer by submitting that no remorse was expressed by Const. McPhee. The Appellant argued that the prosecutor was provided with a copy of the officer’s letter of remorse in advance of the disciplinary hearing but refused to accede to its admission unless the officer testified. It was submitted that the Hearing Officer unfairly concluded that the Appellant failed to provide an explanation for his conduct because of his failure to testify. The Appellant submitted that, in fact, he answered all questions put to him at his compelled interview and in his letter of remorse. The Appellant therefore asserts that the conclusion reached by the Hearing Officer is not supported by the evidence.

94. The Hearing Officer dealt with the letter of remorse and the Appellant’s failure to testify in the following manner at paragraph 101 of his Decision:

I note the officer has pled guilty to five of six charges originally laid and this is an important mitigating factor and can be the first step toward rehabilitation. The Service prosecutor indicated that the guilty plea was not at the first opportunity, that it was a hard fought negotiation that led to the plea and the crafting of the Agreed Statement of Facts and therefore he should not receive full credit. I respectfully

disagree with this premise, [sic] I think Constable McPhee can well show remorse in the first instance by expressing a desire to pled[sic] guilty, without being in agreement with every aspect of the case for the prosecution.

And also at paragraph 103:

I note Constable McPhee, through his apology letter to the tribunal and the letter from Social Worker G, the stress and difficulty he has experienced through this ordeal.

95. The Hearing Officer acknowledged the desire of the Appellant to submit a letter of remorse and the actions of the prosecution in insisting on cross-examining the Appellant before agreeing to the admission of the letter of apology and remorse. The Hearing Officer pointed out that, regardless of the position taken by the prosecution, he admitted the letter into evidence. He considered the letter to be personal and heartfelt in the officer’s description of his history, feelings and emotions and willingness to respond to discipline but what obviously concerned the Hearing Officer was the lack of disclosure of the underlying motives for his behavior.

96. In paragraphs 129 through 137 of his Decision, the Hearing Officer reviewed in detail the results of Const. McPhee’s compelled interview with the Service’s professional standards officer. The information disclosed by Const. McPhee was described in the following terms in paragraph 131 of his Decision:

What is lacking in substance is why. Only Constable McPhee can reveal what his motivation was, reveal what he was attempting to uncover, divulge if he was successful, and explain to us what it meant to him. There is no other way to understand it and there is no way for the investigation to uncover it. Only the

officer can tell us why a large number of women were improperly checked.

And also in paragraph 132:

But instead of revealing his motivation, allowing it to be fully understood, he provides poor, minimal and unpersuasive answers to the questions asked of him.

And further in paragraph 140:

The officer is well entitled not to take the witness stand at a trial or a penalty hearing, it is a statutory right and is not an aggravating factor of penalty. However, how can I accept that he is fully contrite and give him the full benefit of a demonstrated remorse, and be assured of his prospect for rehabilitation, when the reason for his violations remains [sic] concealed, unclear and a matter personal to him.

97. It is very apparent from his Decision, that the Hearing Officer concluded, after considering the information from the compelled interview and the letter of apology and remorse, that the Appellant had not been forthcoming about his motives for the CPIC and PIP searches. He properly weighed the Appellant’s right not to testify against the context of considering the issue of the prospect for the officer’s rehabilitation and he expressed concern there was no satisfactory explanation of the motives. We concur that the Hearing Officer was entitled to draw those conclusions based upon the evidence before him.

98. The fifth appeal ground alleges that the Hearing Officer unfairly concluded that the Appellant was deceitful. The Appellant was not charged with deceit nor was there an allegation of deceit by the prosecution nor any evidence to support such specific finding.

99. Nowhere in the reasons is there any specific reference to allegations of deceit. There is, however, a statement that Const. McPhee lied to the auxiliary police officer about his absence from the vehicle the day Const. McPhee met with A.A. That finding is based upon evidence within the Agreed Statement. The Hearing Officer also commented that the Appellant was less than forthright in his explanations for the CPIC searches. He formed that conclusion after reviewing the transcript of the compelled interview and the letter of remorse and apology.

100. Based upon a consideration of the evidence, we find that the Hearing Officer’s conclusions concerning the Appellant’s lack of forthrightness were reasonable. There was no error committed.

101. The sixth ground of appeal asserts that by relying upon the testimony of S/Sgt. Boyington, whom the Appellant alleged had engaged in attempts to mislead the Hearing Officer and undermine the evidence of defence witnesses, the Hearing Officer erroneously concluded that Const. McPhee was not supported by members of the Service.

102. The Hearing Officer reviewed the position of senior staff of the Service as being very positive of the conduct and abilities of the Appellant as confirmed in the employment evaluations in 2008 and 2009 submitted in evidence. He noted, however, in the context of assessing the positive attributes of the officer, that based upon the evidence disclosed in subsequent investigations by the Service, had Const. McPhee’s multiple CPIC and PIP searches been known at the time, the assessments would not have been as positive. While the Hearing Officer references the comments of S/Sgt. Boyington, there was ample other evidence upon which an inference could be drawn that had the Service known the extent of the activities of the officer, there would have been poor performance assessments. The information did not come to light until the second in-depth investigation was initiated. The Hearing Officer’s conclusions reached on

this point are reasonable.

103. A significant amount of evidence, at both the disciplinary hearing and on this appeal, was focused upon the alleged misconduct of senior management of the Service. The complaint of the Appellant related to the alleged attempts to mislead by failing to provide true explanations regarding the disciplining of other officers and the attempts to undermine the letters of support from character witnesses for the Appellant. While we may not entirely agree with the actions of senior management in the manner in which their evidence was collected and presented, we can find no fault with the way in which the Hearing Officer dealt with this evidence.

104. Finally, the last ground of appeal alleges that the Hearing Officer made moral judgments about the conduct of the Appellant and the impact of that conduct on a victim without any supporting evidence.

105. We agree with counsel for the Service that it is the very function of the Hearing Officer to make a judgment based upon the conduct of the officer in question. In so doing, he is required to assess all of the relevant evidence and to make findings of fact and is entitled to draw inferences therefrom based upon his experience and expertise. In this case it is very apparent that the Hearing Officer did thoroughly review the actions of the Appellant and did draw inferences concerning the impact of those actions upon the targets of his searches, their families and the Service. We do not agree with the Appellant that there was no evidence upon which to base the Hearing Officer’s conclusions in that regard.

106. In the Agreed Statement and the transcript of the mandated interview, the Hearing Officer was presented with the evidence of the numerous admitted CPIC and PIP searches conducted by Const. McPhee and the inappropriate messages and, in our opinion, he correctly concluded that the onus then was upon the officer to provide a complete explanation for his conduct. The Hearing Officer assessed

the answers and concluded that the explanations given were less than forthright regarding the officer’s motives for his admitted misconduct. That conclusion was reasonable.

107. In his factum and in oral argument, Mr. Cummins submitted that the Hearing Officer erred in his application of the principles of sentencing.

108. After a lengthy summary of the evidence, the Hearing Officer identified the well-established sentencing factors to be considered as described in the leading case of Williams and Ontario Provincial Police (1995), 2 OPR

1047(OCCPS).[Decision, paras. 57 -58]. He then proceeded to review all of the evidence in terms of applying the sentencing criteria. He found the misconduct of Const. McPhee to be at the extreme end of the range of seriousness. He stated at paragraph 61 of his Decision:

In this case, as it relates to count one, Insubordination, there were 29 queries, multiple acts of misconduct over a lengthy period of time namely, October 28, 2009 and January 11, 2010. Accessing private and protected information for personal and private use, is an unethical breach of trust, and in its most basic description, is taking something to which you are not entitled, while having a positive and sworn duty to protect. This is not a single lapse of judgment but repetitive and sneaky behavior born out of some personal sense of entitlement.

And also at paragraph 65:

When considering Count Two, Insubordination, the volume of CPIC violations, 122 queries over

21 months compromising the privacy rights of 12 people including his work colleagues and in one

case a member’s spouse, places the behavior at

the highest end of the continuum when describing CPIC violations. I have never heard of

more.

109. Based upon the record of the disciplinary hearing, we can find no error in the Hearing Officer’s description of these events or his characterization of the Appellant’s misconduct as the most serious, egregious and repetitive behavior violating the Service’s policies on the use of CPIC and PIP and also breaching privacy rights and the licensing agreement with the RCMP.

110. The acknowledged facts as outlined in the Agreed Statement clearly establish that the Appellant not only breached the policies of the Service on more than one occasion but did so repeatedly and almost immediately after receiving verbal and written admonishments and being penalized by forfeiture of time off for similar behaviour.

111. The context of each of the unauthorized searches on CPIC and PIP also support the findings that the Appellant was directing most of his queries towards females in an attempt to obtain personal information on those persons for his own private use and not for police business. When considered together with the sexual overtones contained in various e- mail correspondences disclosed in the Service’s investigation, the repetitive nature of the searches, the deliberate and continuous misuse of internal police communication systems and the Appellant’s transparent ridiculing of his prior punishments, the Hearing Officer’s conclusions that Const. McPhee’s sense of entitlement and self-restraint had few limits and appeared unscrupulous are justifiable.

112. We agree with the Hearing Officer’s analysis of those aggravating factors.

113. Const. McPhee admittedly left an unarmed auxiliary officer alone in a police vehicle for a substantial time while he met and continued his relationship with A.A. By so doing, the Hearing Officer found that he did not comply with the Service’s policies and placed the auxiliary officer and Const.

McPhee’s fellow police officers in potentially dangerous circumstances. The Appellant acknowledges this misconduct but disputes the potential dangers.

114. We concur with the findings of the Hearing Officer and confirm that he is entitled to draw upon his expertise and experience as a former police officer in support of his conclusions. Police officers must comply with the service policies and with their sworn duties to remain in their designated service area unless they receive permission otherwise under the authority of a supervisor. This is an integral duty of all police officers. Contravening the policies undermines the effectiveness of the police service and potentially endangers the lives and safety of other persons.

115. In his submissions, Mr. Cummins stated that the conduct of Const. McPhee did not warrant dismissal. There are no cases of an officer being dismissed solely upon the basis of breaches of policies and rules regarding CPIC and PIP searches. He pointed out that the Hearing Officer failed to consider the personal financial loss that the officer and his family had suffered through the deferral of promotions and legal costs. He argued that the Hearing Officer failed to give these factors any consideration and he asserted that because of Const. McPhee’s impressive work history and potential, this should not be a case for dismissal.

116. The Appellant’s work history and educational background were extensively reviewed by the Hearing Officer. He pointed out the very positive attributes of Const. McPhee’s prior education and employment, his volunteer involvement in community activities and his apparent impressive skills displayed in his military career and in the initial stages of his policing career. He outlined mitigating factors that the Appellant pled guilty, had many supportive letters confirming the positive aspects of his character, had issued a personal apology letter expressing remorse, and had sought and was receiving counseling for the problems in his personal life. He turned his mind to the personal hardships outlined by the Appellant but expressed the conclusion that

he had not heard any evidence of extenuating circumstance beyond the expected hardship.

117. Weighed against those positive features, the Hearing Officer considered certain aggravating factors. These included the fact that the misconduct was not an isolated occurrence but a series of serious breaches of CPIC and PIP searches over an extended period of time. In addition, they occurred notwithstanding that Const. McPhee had already received discipline for similar type of misconduct and in some cases almost immediately afterwards. The evidence confirmed that he displayed a dismissive and cavalier attitude towards his discipline. The Hearing Officer was correct in his assessment that these actions constituted an overt display of a repudiation of the employment relationship and made it very difficult to consider the possibility of rehabilitation or reform.

118. In reviewing the reasons, we find that the Hearing Officer provided a fair and balanced approach to his consideration of these aspects of the appellant’s background and his potential for possible rehabilitation and continuing as a police officer. His conclusion that the negative aspects outweighed the positive attributes is justified based upon all of the evidence.

119. Paragraph 102 of the Decision indicates that the Hearing Officer was well aware of the critical consideration of potential for rehabilitation and the need to make every attempt to afford an opportunity to reform unless the misconduct is so egregious and unmitigated. Favretto and Ontario Provincial Police, (February, 2002, OCCPS)

120. On the issue of consistency of penalty, it is not necessary that a hearing officer refer in his or her decision to each and every case put forward by the parties. What is critical is the application of the principle of fairness in treatment. The penalty must be consistent with similar cases that have been dealt with in earlier occasions but each case must be judged on the facts peculiar to it. Schofield and Metropolitan Toronto Police Force (October 29, 1984, OPC).

121. The Commission has upheld penalty decisions of dismissal for breaches of CPIC that have not been as egregious as the circumstances in this case. Mamak (supra). The Commission has also stated that in certain circumstances, one event, or one instance of a lack of judgment justifies termination. Nothing and Ontario Provincial Police, (1996), O.P.R. 1081 (OCCPS); Karklins and Toronto Police Service, (September

25, 2007, OCCPS)

122. The Hearing Officer accepted the Agreed Statement which confirmed approximately 150 unauthorized searches of CPIC and PIP. The Hearing Officer properly concluded that such extensive and repeated abuse is at the highest end of serious misconduct. The Appellant’s cavalier response to his prior informal discipline and continued misconduct including leaving an auxiliary officer unsupervised compounds the seriousness and, in our opinion, falls into the most egregious type of misconduct.

123. The Hearing Officer reviewed the cases of Christian and Grbich and the Aylmer Police Service, (August 9, 2002, OCCPS). Kleinsteiber and Ontario Provincial Police, (April

17, 1996, OCCPS) and Wildeboer and Toronto Police Service, (November 7, 2006, OCCPS). He found those cases

unhelpful and appropriately distinguished the factual

circumstances from the case before him. He accepted and preferred the position taken by the Commission in Coon, (supra).

124. In terms of the issue of consistency of penalty, we have considered the cases submitted by both parties in their factums, briefs of authorities and in oral arguments. We agree with the Hearing Officer’s conclusion that dismissal is within the range of penalties for serious breaches of the policies and rules regarding use of the CPIC and PIP systems. Coon (supra), Parsons and Halton Regional Police Force, (May 1, 1989, OPC).

125. Provocation was not applicable to the circumstances of this case.

126. The issue of damage to the reputation of the Service was hotly contested in the disciplinary hearing and on appeal. It was extensively reviewed by the Hearing Officer in the Reasons for Decision. The evidence indicates that there has been considerable media and internet coverage of the disciplinary hearing. The Hearing Officer concluded that the damage was significant because it occurred in a smaller community with a greater public awareness of local news. The sheer volume of abuse of CPIC and PIP searches and violations of privacy of individuals, the effect upon the victims, particularly the family of A.A., all contributed to damage to the Service’s reputation. We agree with that assessment.

127. The conduct of Const. McPhee has seriously undermined the public’s confidence and trust that police officers will honour their sworn oath to protect the public and uphold the laws including those governing the use of the confidential CPIC and PIP systems. Such conduct has also seriously eroded the trust with other police services, specifically the RCMP, under the terms of the operating agreements allowing the Service to access these search systems. The abuse of the internal e- mail system within the Service itself also undermines the trust of fellow police officers that these communications systems are for professional police uses only. We therefore concur with the conclusion that only a substantial meaningful penalty will prevent or reduce the damage to the reputation of the Service.

128. In dealing with the issues of specific and general deterrence the Hearing Officer expressed the opinion that in this case there was a need for both. He stated that the conduct of Const. McPhee necessarily requires a strong sanction and he pointed out that CPIC violations continue to be an issue generally and all officers must understand that violations involving police data banks may be job threatening.

129. When the conduct of Const. McPhee is viewed in totality, the Hearing Officer correctly concluded that his usefulness as an employee of the Service has been annulled. By his actions, the Appellant willfully disregarded Service rules and regulations, breached his oath of office and core values of the Service.

130. While there may have been a range of possible outcomes available to the trier of fact, our role is to determine, after a somewhat probing analysis, that the Hearing Officer’s reasons are tenable and support his decision. Mamak, (supra).

131. We find the reasons to be expressed in a logical, transparent and intelligible manner. The Hearing Officer appropriately analyzed and weighed the evidence, applied the proper sentencing factors to reach a penalty consistent with the seriousness of the offences. We conclude that there has been no misinterpretation or ignoring of the relevant evidence, no misapplication of law or any other manifest error that would justify our intervention in the penalty imposed.

132. We therefore answer questions (i), (iii), (iv) and (v) listed in paragraph 70 above in the affirmative. We answer question (ii) in the same paragraph in the negative.

133. The appeal against penalty is therefore dismissed.

DATED AT TORONTO THIS 3rd DAY OF AUGUST, 2012

David C. Gavsie

Chair, OCPC

Roy Conacher, Q.C.

Member, OCPC

John Rodriguez

Member, OCPC