Schlarbaum v. Chatham-Kent Police Service, 2013 CanLII 101387

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Schlarbaum v. Chatham – Kent Police Service, 2013 ONCPC 5

BETWEEN:

CONSTABLE CINDY SCHLARBAUM APPELLANT

-and-

CHATHAM-KENT POLICE SERVICE RESPONDENT

DECISION

Panel: Roy Conacher Q.C., Member John Rodriguez, Member

Hearing Date: November 27, 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 Glen Donald, Counsel for the Appellant Ian Johnstone, Counsel for the Respondent

Introduction

1On January 23, 2012 Constable Cindy Schlarbaum ("Const. Schlarbaum" or the "Appellant"), of the Chatham-Kent Police Service (the "Service"), was charged with three counts of discreditable conduct contrary to section 2 (1)(a)(xi) of the Code of Conduct set out as a Schedule to Ontario Regulation 268/10, as amended (the "Code of Conduct") and, therefore, contrary to section 80 (1) of the Police Services Act, R.S.O. 1990, c.P.15, as amended (the "Act"). [The Notice to Attend Hearing incorrectly refers to section 83 of the Act].

2It was alleged that on September 19, 2011 Const. Schlarbaum, while off duty, and after consuming alcohol during the afternoon and evening hours, was asked to leave a residence by one of the occupants. She then proceeded to operate a motor vehicle while exhibiting signs of impairment.

3The resident of the home called 911 and reported Const. Schlarbaum's conduct to the Service and subsequently, she was stopped, arrested and charged under the Criminal Code for impaired driving.

4On November 22, 2011, Const. Schlarbaum pled guilty to the charge under Section 253 (1)(b) of the Criminal Code of operating or having care and control of a motor vehicle having consumed alcohol in such quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. She was found guilty and was sentenced to a fine of $1,500.00, a one year prohibition of driving privileges and a minimum 90 day period of driving prohibition before being able to apply for an ignition interlock system program.

5At the disciplinary hearing held on April 17, 2012, Const. Schlarbaum pled guilty and was found guilty on count number 3, namely, having been found guilty of the criminal offence of, "unlawfully, while her ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle". Counts 1 and 2 were withdrawn. A joint penalty submission (the "Joint Submission") was made that the Appellant be sentenced to a forfeiture of 100 hours with a minimum of 50 hours to be deducted from vacation allotment no later than December 31, 2012 and the remaining 50 hours to be forfeited no later than December 31, 2013 or as soon as possible thereafter.

6On May 18, 2012, notwithstanding the Joint Submission, D/Chief Clare J. Weirsma (ret.) (the "Hearing Officer") imposed a penalty of demotion from First Class Constable to Second Class Constable for a period of 15 months, subject to reinstatement to First Class Constable after such demotion period, contingent upon receiving a favourable performance appraisal recommending such reinstatement.

7Const. Schlarbaum is appealing the penalty of demotion. She seeks an order revoking the penalty imposed by the Hearing Officer and substituting therefore a penalty of loss of 100 hours as originally proposed in the Joint Submission.

Summary Decision

8For the reasons set out below, the appeal is allowed and the penalty is varied to a demotion from First Class Constable to Second Class Constable for a period of nine months. After that time, and contingent upon receiving a favourable performance appraisal recommending reinstatment to the rank of First Class Constable, she is to be reclassified accordingly. The matter of expunging this penalty from her record is to be dealt with according to the collective agreement.

Background

9The Joint Submission contained the following information:

a) Const. Schlarbaum joined the Service in August 1999 after having prior employment as a police officer with another service and a total of 22 years police experience;

b) During the Appellant's policing career she was awarded the Exemplary Service Medal in 2010 and her Service personnel file contained seven letters of thanks and commendation;

c) At the time of the incident, she had been off work for a non-work-related injury;

d) Her blood/alcohol levels of 270 and 260 mgs of alcohol in 100 ml of blood were more than triple the legal limit;

e) The impaired driving did not involve any property damage or physical injury and the Appellant was co-operative throughout the investigative process;

f) The Appellant pled guilty to the criminal charge at the earliest opportunity and expressed an interest in dealing with the Code of Conduct issues as quickly as possible;

g) Impaired driving is considered a serious crime and society has little tolerance for this type of misconduct. Police officers have a responsibility of enforcing the law, and the public holds police officers to a higher standard than ordinary citizens;

h) The Service works diligently to reduce impaired driving which is one of its main goals;

i) The conviction of the Appellant has damaged both her reputation and that of the Service; and

j) With authorization from the Service, the Appellant attended nine days of a 35 day treatment program at Homewood Health Centre in Guelph. Although requested by the Service, the Appellant did not authorize Homewood to provide reports to the Service.

Appellant's Submissions

10Mr. Donald submitted that the Hearing Officer raised a reasonable apprehension of bias by not adhering to the Joint Submission put forward in this case, thereby committing a significant error.

11He went on to state that this reasonable apprehension of bias led to a series of other errors, all of which contributed to the Hearing Officer improperly departing from the Joint Submission.

12Mr. Donald noted that the Supreme Court of Canada has held that impartiality and the appearance of impartiality are essential to procedural fairness. He also noted that courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. The test to ensure fairness for administrative tribunals is whether a reasonably informed bystander could reasonably perceive bias on the part of the adjudicator: see Newfoundland Telephone Co. v. Newfoundland Board of Commissioners of Public Utilities (1992) 1 S.C.R. 623, at para. 22. Consequently, he submitted that the test for a reasonable apprehension of bias has been met in this case.

13Further, Mr. Donald submitted that the Hearing Officer erred by taking into account "reactions I have personally received after the public learned of this incident" (hereinafter referred to as "external information") on page 8 of his decision. Mr. Donald stressed that this consideration of external information was an error that gave rise to a reasonable apprehension of bias.

14Mr. Donald argued that the external information did not fall into the category of "common knowledge", of which judicial notice may be properly taken.

15Further, he submitted that the reactions the Hearing Officer personally received and considered in his decision go beyond common knowledge, and were improperly introduced and considered in drafting the decision. Consequently, there was no opportunity for the Appellant to make submissions or call evidence in response challenging it. This was fundamentally unfair and unreasonable: see Yakimishyn v. Peel Regional Police Service (July 30, 2008, OCCPS), pg. 16.

16Mr. Donald submitted that the Hearing Officer's consideration of and apparent reliance upon the external information, caused him to err in his determination that the Joint Submission, namely, a loss of hours, was contrary to the public interest.

17Mr. Donald argued that had the Appellant become aware that the Hearing Officer had received such external information, it would have been open to the Appellant to bring a motion to seek the disqualification of the Hearing Officer on the basis of reasonable apprehension of bias. Mr. Donald went on to state that the unavailability of this remedy resulted in a denial of natural justice to the Appellant.

18Mr. Donald observed that, in this particular case, there was ample evidence before the Hearing Officer that general deterrence did not need to be addressed. As a matter of fact, he noted that this was the first case of a Chatham-Kent police officer being disciplined for impaired driving since its inception 13 years ago. He submitted that the Hearing Officer over-emphasized the factor of general deterrence in forming his decision.

19Mr. Donald submitted that the Hearing Officer improperly distinguished the cases before him on the basis of whether or not a criminal conviction had resulted. He argued that the disciplinary offence of discreditable conduct for being found guilty of a criminal offence is a distinct and separate offence under s. 2(a)(ix) of the Code of Conduct and this distinguishing factor in the cases should not have been applied by the Hearing Officer.

20Instead, Mr. Donald asserted that the Hearing Officer should have assessed the conduct of Const. Schlarbaum in relation to the conduct of the officers in the cases put before him, rather than improperly distinguishing between them on the basis of the existence or absence of a criminal conviction. The decision to do so resulted in the rejection of the Joint Submission and was an error.

21Mr. Donald argued that the Hearing Officer ignored cases for the same offence which suggested that the range of penalties, as reflected by the Joint Submission, began with a loss of hours/days.

22He further argued that the Hearing Officer erred in finding that the range of penalty for this type of offence was a demotion of between 12 months at the low end and 24 months at the high end.

23He submitted that the Hearing Officer developed a range of penalty that ignored cases where, in spite of high blood/alcohol readings, there was:

a) no vehicle collision;

b) no property damage;

c) cooperation throughout the entire process; and d) an exemplary work record.

While the Hearing Officer expressly adopted the reasoning in Schofield and Metro Toronto Police, (October 29, 1984, O.P.C.), that "consistency in the discipline process is often the earmark of fairness", nevertheless, the Hearing Officer's range of penalty for this offence began with cases involving fewer mitigating and more aggravating factors than Const. Schlarbaum's case: see York Regional Police and Constable Smith (July 7, 2011, Supt. Cusimano), and York Regional Police and Constable Vicko (June 8, 2009, Supt. Noakes).

24Mr. Donald argued that if impaired driving cases, involving officers of York Regional Police, the Toronto Police Service and the OPP, and vehicle collisions, result in 12 month demotions, then the Hearing Officer erred when he found that the starting penalty for all cases where officers are convicted of impaired driving is a 12 month demotion.

25Mr. Donald submitted that the Hearing Officer exacerbated his error in the development of the range of penalty by placing the Appellant, whose case did not involve a collision and had more mitigating than aggravating factors, at a 15 month demotion in the range.

26Mr. Donald pointed out that the Hearing Officer was presented with two recent cases, Constable Douglas Elo and Toronto Police Service (January 7, 2010, Supt. Witty) and Constable Daniel Ross and Toronto Police Service (May 7, 2010, Supt. Breen), where both resulted in a penalty of a loss of hours/days. He submitted that these cases speak not only to the reasonableness of the Joint Submission, but also to the fact that the Hearing Officer erred in holding that there is a recent transitioning to higher penalties for this offence.

27Mr. Donald requested that we allow the appeal, and vary the penalty giving effect to the Joint Submission's recommended penalty of the loss of 100 hours.

The Respondent's Submissions

28Mr. Johnstone noted that the Appellant's argument of bias was based on two claims namely that the Hearing Officer:

a) departed from the Joint Submission; and b) considered external information.

29Mr. Johnstone pointed out that the onus for establishing a presence of bias rests with the party alleging a reasonable apprehension of bias: see A.T. Kearney Ltd. v. Harrison (2003) O.J. No. 438 at para. 7:

The threshold for a finding of real or perceived bias is a high one since it calls into question both the personal integrity of the adjudicator and the integrity of the administration of justice. The grounds must be substantial and the onus is on the party seeking to disqualify to bring forward evidence to satisfy the test.

30Similarly, Mr. Johnstone noted that in Norshield Asset Management (Canada) Ltd. (Re:) (2009, LNONOSC 73, O.S.C), Mr. Justice Cory wrote at paragraph 62 "Furthermore, the threshold for finding real or perceived bias is high, because such a finding calls into question an element of judicial integrity" and at paragraph 63 "an additional reason why the threshold for finding a reasonable apprehension of bias is high, is because there is a presumption that judges will carry out their oath of office".

31Mr. Johnstone noted that in both the above cases, the Court and the Ontario Securities Commission concluded that a reasonable apprehension of bias was not established.

32Mr. Johnstone submitted that the Appellant had not proven the presence of bias because her two arguments, regarding the Hearing Officer's consideration of external information and departure from the Joint Submission, if accepted, would not demonstrate a reasonable apprehension of bias.

33Mr. Johnstone argued that the Hearing Officer correctly considered external information and recognized that hearing officers are entitled to apply their specialized and personal experience and knowledge and to do so without notice to the parties: see Sergeant Berger v. Toronto Police Service (May 24, 2007, OCPC) and Superintendent Paul Gottschalk v. Toronto Police Service (January 29, 2003, OCPC).

34Mr. Johnstone noted that the Hearing Officer was entitled to rely on his own personal experience within the community. Moreover, the context within which his comments were made showed that his conclusion, that the public awareness confirmed that the Appellant's misconduct damaged the reputation of the Service, was not based solely upon his personal or specialized experience within the community.

35Mr. Johnstone submitted that hearing officers are not bound by the recommendations of counsel and, in fact, are required to consider whether the recommendations in a joint submission are in line with the public interest. He submitted that it is well established that the Hearing Officer has the ultimate discretion and responsibility to decide upon the fitness of the penalty: see R. v. Simoneau (1978), 40 C.C.C. (2d) 30, paras. 15 and 16.

36In this particular case, Mr. Johnstone noted that the Hearing Officer took into consideration the damage to the reputation of the Service by observing that the Service has taken a proactive role, in both education and enforcement efforts, to stop impaired driving. In addition, when one of its own officers breaks the law, it resonates in a relatively small community like Chatham-Kent.

37Mr. Johnstone stated that the Hearing Officer, even though he was not bound to do so, advised the prosecutor and counsel that he would not accept their Joint Submission. In fact, he adjourned the hearing twice to allow for consultation and research by counsel for both parties and for them to make further representations.

38Mr. Johnstone observed that general deterrence is an important consideration when determining penalty and that the Hearing Officer assigned general deterrence the proper weight: see Constable Batorski v. The Niagara Police Service (August 5, 1982, O.P.C.) and Constable Sloot v. Brantford Police Service (December 21, 1987, O.P.C.).

39He submitted that, at the hearing, Appellant's counsel presented three cases that involved impaired driving, with no criminal convictions resulting, while the prosecution presented nine cases that involved impaired driving which resulted in criminal convictions. He noted that the Hearing Officer stated that the defence cases were not reliable guides to the appropriate range of penalty. Mr. Johnstone asserted that the presence of a criminal conviction is an important factor in determining an appropriate penalty: see Brown and Beatty, "Canadian Labour Arbitration: Commentary and Current Notes" (Fourth Edition), Re: City of Lethbridge and Amalgamated Transit Union Local 987 (2000), 2000 CanLII 50094 (AB GAA), 98 L.A.C. (4th) 264, and Re: School District No. 6 and Canadian Union of Public Employees, Local 440, (2002), 2002 CanLII 79006 (BC LA), 114 L.A.C. (4th) 298.

40Mr. Johnstone disputed the Appellant's attempt to seek a judicial review of findings of fact made by the Hearing Officer and submitted that the Hearing Officer's findings of credibility with respect to the Appellant's personal issues, cooperation and exemplary work record were factual conclusions, and therefore, entitled to considerable deference: see Karklins v. Toronto Police Service, (2010) ONSC 747 (Div. Ct.). He pointed to the Court's comments in Karklins that:

Although a lesser penalty may also arguably fall within the range, that is not a sufficient reason in itself to interfere with either the Hearing Officer's or the Commission's decision.

41Mr. Johnstone submitted that a review of the jurisprudence afforded only a starting point for sentencing, and the individual mitigating and aggravating circumstances largely influenced the appropriate sentence. He noted that the Hearing Officer was not required to agree with defence counsel's submissions regarding certain mitigating factors. Further, he was also entitled to decide a range of comparator cases vis-à-vis the Appellant's misconduct, other than those cases presented by her counsel.

42Accordingly, Mr. Johnstone submitted that the appeal should be dismissed and the Hearing Officer's Penalty Decision be upheld.

Appellant's Reply

43Mr. Donald emphasized that this case is not a tone-setter, but rather, it is about the integrity of the process.

44He asked us to consider that when a joint submission is set aside, one must be sure that the impression that is left is not one that the Appellant did not get a chance to respond.

Reasons for Decision

45The standard of review to be applied on an appeal of a disciplinary decision is well settled. His or her findings of fact and a decision as to penalty must be reasonable: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 and Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.

46It is also well settled that the standard of review with respect to a hearing officer's interpretation of the law is correctness: see Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3rd) 1 (Ont. C.A.).

47The Supreme Court of Canada described the standard of reasonableness as being concerned mostly with the existence of justification, transparency, and intelligibility within the decision-making process but also whether the decision falls within the range of possible acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir, supra.

48Our role on an appeal is not to second-guess the decision of a hearing officer, but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence, and are articulated in an intelligible, transparent and logical manner: Precious and Hamilton Police Service (2002), 3 O.P.R. 1561 (OCCPS); Whitney v. Ontario (Provincial Police) [2007] O.J. No.2668 (Div. Ct.); Dunsmuir, supra.

49In certain limited cases, it may be open to the Commission 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 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); Karklins, supra, and Quintieri and Toronto Police Service (2002) 3 O.P.R. 1509 (OCCPS).

50The Commission's jurisdiction over members of police services is found in the Act. Specifically, s. 85(1) outlines an array of sanctions that may be imposed on a police officer, should misconduct be proved on clear and convincing evidence. These include dismissal, demotion, suspension from duty, forfeiture of days, or hours off, or a combination of penalties. S. 85(1) must be read in conjunction with s. 87(8), which outlines the Commission's powers to, inter alia, confirm, vary, or revoke a hearing officer's decision or substitute our own decision.

51In our view, the issues before the Commission are:

a) Has the Appellant met the threshold test to establish a reasonable apprehension of bias on the part of the Hearing Officer?

b) Did the Hearing Officer fairly and impartially apply the principles of sentencing and give appropriate weight to all relevant factors?

c) Was there an evidentiary foundation for the findings made?

d) Was there any breach of the principles of natural justice and procedural fairness in the conduct of the disciplinary hearing?

e) Were the reasons for decision expressed in an intelligible, transparent and logical manner?

Apprehension of Bias

52With respect to the first question, the Supreme Court of Canada described the test for a finding of reasonable apprehension of bias as follows:

The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator: see Newfoundland Telephone Co v. Newfoundland Board of Commissioners of Public Utilities (1992) 1992 CanLII 84 (SCC), 1 S.C.R. 623, at para. 22 (emphasis added).

53The crux of the issue is a procedural and factual one. The law is settled that a tribunal is presumed to be fair and impartial, that the threshold for a finding of real or perceived bias is high and that the onus of establishing its existence is upon the party alleging bias or a reasonable apprehension of bias: see Austin v. Ontario Racing Commission, 2007 ONCA 587 (Can LII); Bailey v. Barbour, 2012, ONCA 325 (Can LII).

54Simply stated, the test of apprehension of bias, as it has been articulated and reiterated in the jurisprudence, is: "[W]hat would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?": see Committee for Justice and Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369; Zundel v. Citron 2000 CanLII 17137 (FCA), [2000] F.C.J. No. 679; Wewaykum Indian Band v. Canada, 2003 SCC 45, 2003 S.C.C. 45.

55The Appellant's submission rests upon two allegations, namely, that the Hearing Officer rejected the Joint Submission and, secondly, he relied upon external evidence in forming his penalty decision without advising the parties in advance and without permitting the opportunity of challenging that information. The Appellant contended that the following comment by the Hearing Officer on page 7 of his decision raised a reasonable apprehension of bias:

It is apparent from reactions I have personally received after the public learned of this incident that there are a significant number of citizens who believe any officer that drives while impaired should not remain on the Service.

56We respectfully do not agree with that contention. These statements by the Hearing Officer must be viewed in the context within which they were made.

57The Hearing Officer correctly cited the three key sentencing factors to be considered, as expressed in Williams, supra. These consisted of the nature and seriousness of the misconduct, the ability of the officer to reform or be rehabilitated, and the damage to the reputation of the Service that would occur if the officer remained with the Service. In addition, the other factors to be considered include the need for specific and general deterrence, the public interest, management's approach to the misconduct, the impact upon the officer and the Service, the officer's employment history, the recognition of the seriousness of the transgression, and any handicap or other personal considerations.

58In his analysis, the Hearing Officer correctly concluded that this type of misconduct, driving while impaired by alcohol has long been a very serious offence, particularly so when committed by a sworn police officer who is charged with the duty to uphold the law. A police officer is rightly held to a higher standard of conduct than members of the public by reason of the position and responsibilities with which officers are entrusted.

59While questioning that the Appellant has the ability to reform or be rehabilitated by reason of her personal circumstances and expressing concern that the Appellant had consumed a significant amount of alcohol at the time of the incident, nevertheless the Hearing Officer indicated that he gave her the benefit of the doubt, noting her early guilty pleas, co-operation and expressions of remorse.

60In his consideration of the third key sentencing factor, i.e. reputational damage to the Service, the Hearing Officer expressed clear concerns. He went on to outline what policies the Service has adopted and the public educational campaign undertaken by the Service to reduce the number of incidents of impaired driving offences among the general public.

61It was in this context that the Hearing Officer's comments were made to highlight the undermining of those efforts when one of the officers in the Service commits such an offence. In our opinion, having considered these statements in the totality of the decision, they do not rise to the level of substantiating a reasonable apprehension of bias. The public's negative attitude towards impaired driving is well known and the Hearing Officer is able to rely upon his personal knowledge of that fact. It is clear that he did not rely solely upon the comments "personally received". Further, there is no denial of natural justice or procedural unfairness in not providing the Appellant with an opportunity to respond on this issue.

62The Hearing Officer did not do what he heard a significant number of citizens would like him to do – namely, order the Appellant be dismissed. The Hearing Officer properly concluded that dismissal would not be consistent with the case law.

63Since the Hearing Officer did not rely solely on the external information, there was no denial of procedural fairness in failing to notify the parties of its existence. Hence, the Appellant not having been able to cross-examine the providers of the external information or call evidence in response to it did not result in an unfairness.

64We agree with the Respondent that the Hearing Officer is not bound to accept and adopt a joint submission on penalty and may exercise discretion to reject the submission based upon the factual circumstances of a specific case. However, as the Commission has previously stated, if a joint submission is to be rejected or varied, a hearing officer must act fairly, impartially and on a solid evidentiary foundation and provide clear and cogent reasons. He or she must give very careful consideration to a joint submission, particularly where there appears to have been an in-depth analysis of all of the appropriate sentencing factors. A joint submission on penalty ought to be accorded significant weight when deciding an appropriate penalty: see Allen and Hamilton Wentworth Regional Police Service (1995) 2 O.P.R. 1001 (OCCPS); Toronto (City) Police Service v. Kelly, 2006 CanLII 14403 (ON SCDC), [2006] O.J. No. 1758 (Ont. Div. Ct.); Yakimishyn, supra.

65The fact that the Hearing Officer did not accept the Joint Submission, in itself, does not give rise to a reasonable apprehension of bias. In this case, the Hearing Officer outlined his extensive review of the cases presented to him by the Parties relating to the range of penalties and came to the conclusion that the penalty recommended did not fall within the range of appropriate penalties for the misconduct in issue. The Hearing Officer advised counsel for both Parties that he was not inclined to accept the Joint Submission. The allegation of bias or apprehension of bias was not raised at that time. This type of allegation must be raised at the earliest opportunity. It was not.

66Therefore, find that, given the circumstances of this case, an informed bystander could not reasonably perceive bias stemming from the Hearing Officer's reference to reactions he personally received from members of the public which he did not rely upon in deciding not to accept the Joint Submission.

Application of Sentencing Principles

67In his 14 page decision, the Hearing Officer reviewed each of the key sentencing factors. Reviewing the reasons for decision in their totality, we are satisfied that he has adequately considered all of the key factors in a reasonable, transparent, intelligible and logical manner addressing the mitigating and aggravating circumstances, with one exception.

68It is apparent, when reviewing the reasons, that the main concern of the Hearing Officer throughout his consideration of the sentencing factors was the damage to the reputation of the Service, the impact upon the public perception of the misconduct and consequently the finding that general deterrence was the most important factor. He stated specifically that specific deterrence was not a major consideration but general deterrence to the rest of the members of the Service was one of significance.

69With respect, we have concluded that the Hearing Officer gave undue weight to the factor of general deterrence in the context of weighing all of the sentencing factors in this case. While he refers to the Appellant's prior unblemished career with no prior discipline matters, the commendations received, her good performance reviews, her co-operation throughout the investigation, the fact of the guilty pleas to both the criminal and disciplinary charges, her expressions of remorse, and her personal circumstances immediately before the incident, he concludes that these facts taken together do not provide an excuse for driving while impaired and such conduct warrants a significant penalty.

70In reviewing the cases presented to him the Hearing Officer applied a distinction between those that resulted in a criminal conviction and those that were resolved without a conviction. In our view, that distinction is too restrictive. The actions constituting misconduct committed by an officer must be carefully considered in each case whether a conviction is registered or not. Consequently, a penalty decision must be reviewed in the context of each factual circumstance.

71In our view, the Hearing Officer was in error in distinguishing the cases on that basis which appears to have led him to arrive at a range of penalties that commenced with a 12 month demotion. He came to that conclusion notwithstanding that he was presented with recent Toronto Police Service disciplinary cases that had resulted in lower penalties, and were contrary to his conclusion that these decisions had shown a transition to higher penalties. He stated on page 12 of his decision: "I will not give any significant weight to these cases due to them being dated". A criminal conviction is certainly an aggravating factor. However, in an administrative disciplinary hearing there is a different standard of proof. Therefore, as indicated, a hearing officer must consider all cases involving similar factual circumstances in coming to a decision on penalty.

72With respect to the issue of the application of principles of sentencing, at the outset of his analysis on the appropriate penalty, the Hearing Officer cited the following guiding principle, which he committed himself to follow:

Consistency in the discipline process is often the earmark of fairness. The penalty must be consistent with the facts and consistent with similar cases that have been dealt with on earlier occasions: see Schofield, supra.

73However, the Hearing Officer failed to apply that principle to his analysis of the case law or the facts of the Appellant's case. His determination that a 15 month demotion for the Appellant was appropriate is not supported by a complete review of the applicable case law. He failed to distinguish the circumstances of the Appellant's case from the more serious fact situations in the cases he reviewed. The Hearing Officer imposed a lengthier demotion on the Appellant than other officers had received, even though the circumstances of their misconduct were much more serious.

74In Smith, supra, the officer was demoted for a period of one year. The case involved erratic driving which caused a minor accident. Further, Const. Smith also had a suspended license due to unpaid fines. In Vicko, supra, the officer was involved in a collision. He was demoted for a period of one year. In comparison, the Appellant was not driving erratically, nor was there an accident or collision, and her license had not been suspended for unpaid fines, or another reason. This was the Appellant's first and only offence in her 22 years policing career.

75In the case of OPP v. Constable Donovan (2007, Supt. (ret.) Fitches), a 13 month demotion was imposed in circumstances where there had been a criminal conviction. The officer was operating a service vehicle at the time. Again, in comparison, the Appellant was not driving a service vehicle and was off work for a non work-related injury.

76In the case of Hamilton Police v. Constable Walker (April 27, 2010, Supt. Shea), a 14 month demotion was imposed. There was a vehicle collision that resulted in property damage. Also, in OPP v. Detective Sergeant Currie (October 30, 2006, Supt. (ret.) Fitches), a 14 month demotion was imposed. A collision occurred that resulted in property damage, and the officer's rank was also considered an aggravating factor. In contrast, in the Appellant's case where the Hearing Officer imposed a 15 month demotion, there was no collision.

77The Appellant's blood alcohol level was three times the legal limit, which along with the criminal conviction warrants a demotion. Nevertheless, the cases distinguished above, coupled with the other factors of her case, support a demotion which falls below the range of 12 to 14 months.

78It is our view that the Hearing Officer did not adequately weigh the following circumstances of the Appellant's case:

a) With the exception of this incident, which occurred at a low point of the Appellant's life due to health and financial challenges, the Appellant has had an unblemished record throughout her 22 years of police service. She also received the Exemplary Service Medal in 2012 and has seven letters of thanks and commendation in her file.

b) The Appellant cooperated fully with the police officers who charged her and took her breath sample. She also cooperated fully throughout the legal process, showing remorse by pleading guilty to both the criminal charge and the allegation of discreditable conduct.

79The Respondent's counsel asked us to consider the Appellant's non-completion of the Homewood Health Centre treatment program as an aggravating factor, which suggests a problem with rehabilitation. But we also note that the Hearing Officer in fact also gave the Appellant the benefit of the doubt regarding her completion of only nine days of the 35 day program. In doing so, he stated on page seven of his decision that there was no evidence she required rehabilitation "from anything other than making an extremely poor decision". We agree that, in the absence of evidence, it would be inappropriate to draw any conclusions or inferences from the Appellant's failure to complete the treatment program.

80As we have concluded, we are of the opinion that the Hearing Officer erred in placing too much emphasis on the need for general deterrence. This was the first instance of a Chatham-Kent police officer being disciplined for impaired driving since the Service was formed. Consequently, on the evidence, general deterrence should not have been overweighted.

81In our view, for the reasons given above, the Hearing Officer failed to distinguish the Appellant's circumstances from more serious cases and failed to apply that principle of sentencing fairly and impartially, giving appropriate weight to all relevant factors.

Evidentiary Findings

82While there is an evidentiary foundation for the finding of guilt, we are not satisfied that the Hearing Officer appropriately considered the weight to be given to general deterrence and particularly his finding that the case law resulted in a range much narrower than appears from a careful analysis of all of the cases presented to him.

Natural Justice and Procedural Fairness

83Having reviewed the reasons for decision, we can find no procedural errors in the manner in which the hearing was conducted.

Logical and Transparency of Reasons

84With the exception of the manner in which the Hearing Officer expressed his reasons on the issue of general deterrence, we find that the reasons were logical, intelligent and transparent.

85We therefore answer the issues set out in paragraph 51 as follows:

a) We answer (a), (b) and (d) in the negative;

b) We answer (c) and (e) in the affirmative, except for our comments about general deterrence as set out above.

86In conclusion:

a) The Hearing Officer's single reference to public opinion did not create a reasonable apprehension of bias;

b) The Hearing Officer did not err in rejecting the joint submission on penalty, as the proposed penalty of forfeiture of 100 hours was too lenient given the Appellant's elevated blood/alcohol level and the case law where there is a criminal conviction for impaired driving;

c) The 15 month demotion imposed by the Hearing Officer was harsh and excessive, given the case law and the factual circumstances of the Appellant's case; and

d) The Hearing Officer erred:

(i) in failing to distinguish the Appellant's circumstances from more serious impaired driving cases that imposed a less harsh penalty;

(ii) in failing to put sufficient weight on the Appellant's exemplary record over 22 years of police service, she was off duty, not driving erratically, did not cause an accident or collision, and her demonstration of remorse by pleading guilty to all charges; and

(iii) in giving too much weight to the need for general deterrence.

87In our considered opinion, with these errors, the Hearing Officer's reasons for decision on penalty do not meet the standard of reasonableness.

88Therefore, we grant the appeal and vary the Hearing Officer's decision on penalty to a demotion from First Class Constable to the rank of Second Class Constable for a period of nine months. After that time and contingent upon receiving a favourable performance appraisal recommending that the Appellant be reinstated to the rank of First Class Constable, she is to be reclassified accordingly. The matter of expunging the record is to be dealt with according to the provisions of the collective agreement.