OCPC #13-03

ONTARIO CIVILIAN POLICE COMMISSION

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

P.15, AS AMENDED

Citation: Wolosinovsky v. Toronto Police Service, 2013 ONCPC 3

B E T W E E N:

CONSTABLE ASHLEY WOLOSINOVSKY

APPELLANT

-and-

TORONTO POLICE SERVICE

RESPONDENT

DECISION

Panel:

Hearing Date:

David C. Gavsie, Chair

Roy B. Conacher, Q.C., Member

Zahra Dhanani, Member

October 30, 2012

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances

Andrew P. McKay, Counsel for the Appellant

Ian Solomon, Counsel for the Respondent

Introduction

1. Constable Wolosinovsky (“Const. Wolosinovsky” or the "Appellant") 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 123/98 (now Ontario Regulation 268/10), as amended, and therefore contrary to section 74(1) (now section 80(1)) of the Police Services Act, R.S.O. 1990, c.P.15, as amended (the "Act").

2. Two of the three counts against the Appellant arose from events which occurred after October 19, 2009, on which date the Act was amended. However, none of the provisions of the Act pertinent to this appeal were changed by the amendments. As a result, this appeal will be dealt with under the version of the Act in force since October 19, 2009.

3. It was alleged that on November 30, 2008, March 21, 2010 and again on February 20, 2011, while off duty, Const. Wolosinovsky assisted Police Constable U.M (“Const. No. 2”) in cheating in a promotional examination process. The allegation was that on the dates aforesaid, the Appellant equipped herself and Const. No. 2 with electronic communication equipment including a transmitter and receiver. The Appellant used this electronic equipment to receive questions from Const. No. 2, who was in the process of writing a promotional examination for a Sergeant’s position in the Toronto Police Service (the “Service”), and then transmitted the answers to Const. No. 2. By so doing, it is alleged that Const. Wolosinovsky committed misconduct in that she acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Service.

4. At the disciplinary hearing held on February 16, 2012, Const.

Wolosinovsky pled guilty to the three charges. An Agreed

Statement of Facts (the “Statement”) was read into the record.

5. On April 30, 2012, Supt. Donald Campbell (the "Hearing Officer") imposed a penalty; (i) on the first count, a reduction in gradation of rank from first to second class Constable for a period of six months; (ii) on the second count, a reduction in gradation in rank from first to second class Constable for a period of one year; and, (iii) on the third count, a reduction in gradation in rank from first to third class Constable for a period of six months. The penalties were to be served in the following sequence: the penalty for the third count was to be served first, followed by the penalties on counts one and two, which were to be served concurrently. After serving the demotions, Const. Wolosinovsky would be eligible to progress from third to second and second to first class Constable through the Service’s established reclassification process.

6. Const. Wolosinovsky appeals the penalty disposition. She has requested that the Commission vary the decision and impose a penalty of forfeiture of hours in the range of 40 to 80 hours which she submits is more consistent with case law reflecting similar misconduct.

Decision

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

Background

8. Const. Wolosinovsky began her employment with the Service as a cadet in December, 2005 and has been a sworn police officer in the Service since May 4, 2006 when she was appointed as a Fourth Class Constable.

9. She was assigned to 12 Division working in the Primary Response Unit followed by a brief period at Central Field Office. She then returned to 12 Division and was subsequently assigned to 32

Division. While there, she worked in the Detective Office and as a School Resource Officer. While she was posted to 32 Division, the events leading to the charges herein occurred.

Disciplinary Hearing

10. The Statement was entered as Exhibit Number 3 in the disciplinary hearing.

11. It is not necessary for the purposes of this appeal to quote the entire Statement. The following summarizes the essential facts contained in the Statement:

• On or about November 30, 2008, Const. Wolosinovsky was involved in a dating relationship with Constable No.

• On that date Const. No. 2 was a candidate to take a promotional examination for the rank of Sergeant.

• Both Const. Wolosinovsky and Const. No. 2 had prior discussions concerning a method to cheat during the examination process.

• The Appellant proceeded to obtain electronic communication equipment including an audio receiver ear piece and two portable radios and microphone. This equipment allowed for the transmission and reception of communications between the devices.

• On the examination date, while off duty, the Appellant stationed herself in her own vehicle outside the building where Const. No. 2 was in the process of taking the examination. She had a copy of that year’s Sergeant’s promotional study package with her.

• Each had the electronic equipment for transmitting and receiving in their possession.

• During the examination, Const. No. 2 transmitted a number of questions to the Appellant who then checked the information contained in the study package and transmitted the answers back to Const. No. 2.

• The actions of the Appellant and Const. No. 2 went undetected. However, the latter, although achieving an interview, was unsuccessful in being promoted to the rank of Sergeant.

• On March 21, 2010, Const. No. 2 was again a candidate in an examination for the rank of Sergeant. The Appellant was still in a dating relationship with this other officer.

• The identical process was repeated during this second promotional examination taken by Const. No. 2 with the Appellant obtaining the electronic equipment and, while off duty, stationing herself outside the examination location.

• Const. No. 2 transmitted questions to the Appellant who then provided the answers by transmission back to the other officer.

• The actions of the two officers went undetected and again Const. No. 2, although being granted an interview, was unsuccessful in his attempt to be promoted to Sergeant.

• On February 20, 2011, the Appellant had ceased her dating relationship with Const. No. 2. However, she agreed to assist him in undertaking a similar deception in the course of his taking a third promotional examination for the rank of Sergeant. This time, Const. No. 2 obtained the electronic equipment.

• The Appellant, while off duty, stationed herself outside the building where the examination was being held and repeated the same process of assisting Const. No. 2 by checking the promotional study package and providing the answers to the questions transmitted to her by him.

• During this conduct however, the transmissions were detected by other senior officers of the Service. The

Appellant fled the scene. However, upon investigation the involvement of the Appellant was discovered.

• Const. Wolosinovsky co-operated with Professional Standards and provided statements admitting her involvement in the three separate occurrences.

• She was not a candidate for promotion in the three examinations and did not receive any financial benefit or other consideration from Const. No. 2 for her assistance.

12. The Hearing Officer accepted the Statement and found the facts expressed in it bore clear and convincing evidence which substantiated the allegation as stated in the Notice of Hearing. He also accepted the Appellant’s plea and found her guilty of misconduct on all three counts.

13. The disciplinary hearing took place on February 16, 2012. On April 30, 2012, the Hearing Officer’s decision on penalty was issued.

14. On May 28th, 2012, the Appellant filed a Notice of Appeal with the

Commission appealing the Hearing Officer’s decision on penalty.

Submissions of the Appellant

15. The Appellant submitted the following grounds of appeal:

a) The Hearing Officer misapprehended the evidence contained in the Statement by repeatedly and incorrectly imputing into the Appellant’s conduct the false and unsupported notion that her misconduct was motivated by her own personal gain or professional advancement, contrary to what was specifically established by the Statement;

b) The Hearing Officer misapprehended the law by not giving any weight to, misinterpreting, or not even considering case law provided by the Appellant’s counsel during sentencing submissions; and

c) The penalty imposed by the Hearing Officer was, in all the circumstances, harsh, excessive and inconsistent with the decisions of this Commission and other police services for similar misconduct.

16. In his factum, Mr. McKay outlined the prior personal circumstances of the Appellant which he submitted were relevant to the appeal. Const. Wolosinovsky had a turbulent and unsettling family life. In her early childhood, her mother was diagnosed with cancer resulting in the Appellant spending time with the mother in and out of hospitals and ultimately requiring the family to move from the country into a city for the mother’s care. Const. Wolosinovsky had developed a strong emotional bond and reliance upon her pet dog but was required to leave the pet with a friend when she moved into the city. Unfortunately, the dog was subsequently hit by a car and killed. By age nine, the Appellant’s mother had died. Her father remarried but the relationship with the stepmother was not good. At aged nineteen, the Appellant left home and at age twenty-two she joined the Service.

17. While assigned to 12 Division, there was a serious incident between Const. Wolosinovsky and another officer that caused a great deal of dissension within the Division. The Appellant was ostracized by members of the unit and the only person who supported the Appellant through that difficult time was Const. No.

18. As a result, a bond and ultimately a romantic relationship developed between the two.

19. The Appellant alleges that, while there were issues in their relationship, she felt that she owed Const. No. 2 an obligation to assist him in the examination process and agreed to do so with some reluctance.

20. The Appellant submitted that this background provided the context to the motivation for her agreement to participate in the scheme. Mr. McKay submitted that she did not receive any compensation nor was there any intent to obtain a career advancement on her behalf.

opportunity, co-operated with the Professional Standards investigation and has expressed genuine remorse for her role. He also stated that her prior employment history with the Service is exemplary and that she has taken positive steps towards rehabilitation. A number of character reference letters were submitted at the disciplinary hearing and are contained in the record of those proceedings.

21. In addition to restating the grounds of appeal, Mr. McKay also submitted that the Hearing Officer failed to distinguish properly the Appellant’s case from those of similar cases and that he failed to apply the relevant sentencing principles by basing his penalty decision upon conclusions which were not supported by clear and convincing evidence. The result was a penalty that was harsh, excessive and extreme under all the circumstances.

22. Counsel referred to the provisions of Section 87 of the Act which provides authority to the Commission to vary or revoke the penalty imposed and substitute its own decision.

23. Mr. McKay pointed to prior decisions that expressed the conclusions that the Commission will only intervene if the conclusions of the Hearing Officer are void of evidentiary foundation, if the penalty is unreasonable or amounts to an injustice or if all relevant matters have not been fairly and impartially considered. He also submitted that the Commission has held that it will only intervene if the Hearing Officer made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drew erroneous conclusions from it: see Williams and Ontario Provincial Police, (1995), 2 O.P.R.

1047, (OCCPS); Carson and Pembroke Police Service, March 26, (July 27, 2001, OCCPS); Mowers and Hamilton-Wentworth Police Service, (March 18, 1999, OCCPS).

24. Mr. McKay submitted that the standard of review with respect to the interpretation of relevant aspects of the law is one of correctness: see Watters and Ontario Provincial Police, (February

1, 2011, OCPC). He argued that the Hearing Officer formed erroneous conclusions and drew inferences that were unsupported from the evidence and thereby misapprehended the

law. He pointed to the Hearing Officer’s statement that what he found to be an aggravating factor was that, while the Appellant was in a new Division that gave her opportunities for advancement and accepted her as a valued member, she was committing this misconduct.

25. Mr. McKay asserted that this statement, among others made by the Hearing Officer, confirmed the drawing of erroneous inferences that the Appellant, by participating, was seeking a personal benefit or professional advancement to herself, or was an “equal partner” in cheating, contrary to the evidence in the Statement. He submitted this unsupported inference amounts to an error in law.

26. He argued that the record shows the Appellant was never a candidate in the promotional examinations, and received no compensation or any other benefit for her participation. Const. No.

2 clearly took the lead in arranging for the actions of both officers.

27. The Appellant argued that the psychological issues she was going through in her relationship with Const. No. 2 at the time of these events provided the background and motivation for her involvement but these were not considered by the Hearing Officer.

28. Mr. McKay submitted that for all of these reasons, the Hearing Officer had misconstrued, failed to consider or misapprehended the evidence.

29. The Appellant also argued that the Hearing Officer had not fairly weighed and considered the cases presented by both parties. Mr. McKay alleged that more weight was given to the cases submitted by the prosecution and that is an error in law entitling the Commission to reverse the decision.

30. He argued that, while the Hearing Officer had stated that none of the cases presented mirrored similar facts of cheating or assisting in cheating on promotional examinations, nevertheless, many of the cases referred to by the Prosecutor involved the type of conduct which did not bear any resemblance to the Appellant’s situation and ought not to have been considered. He argued that

the Hearing Officer inappropriately gave those cases disproportionate weight and discounted the cases presented by the Appellant in determining the penalty.

31. The Appellant therefore argued that the principle of consistency in sentencing was subverted. This constitutes an error in law and should not be accepted by the Commission.

Submissions of the Respondent

32. On behalf of the Respondent, Mr. Solomon began his submissions by referring to the principles to be applied in the context of an appeal review. These are:

• The standard of review on an appeal of a penalty decision is one of reasonableness: see Bovell and Toronto Police Service, (July 9, 2012, OCPC); Chan v. Toronto Police Service, (December 10, 2010, OCPC); Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9;

• Significant weight should be accorded to a Hearing Officer’s penalty decision particularly where the Hearing Officer has carefully and thoroughly analysed the evidence. The Hearing Officer’s penalty decision should only be varied if there is a manifest error in principle or if the penalty is unreasonable, amounts to an injustice or if all relevant factors have not been fairly and impartially considered: see Allen and Hamilton-Wentworth Police Services, (May 4, 1995, OCCPS); Carson and Pembroke Police Service, (July 27, 2001, OCCPS);

• A penalty should not be varied merely because the Commission might have reached a different conclusion since the Hearing Officer heard the evidence and is closest to the needs of the police force and needs of the community: see Gibson and Waterloo Regional Police Service, (June 5, 1986, OPC);

• A penalty should not be varied if it falls within the range of reasonable penalties appropriate to the particular circumstances. The Commission’s role is not to second-

guess a Hearing Officer’s decision in that regard: see

Walker and Peel Regional Police Service, (November 6,

2000, OCCPS); Gibson, supra;

• It is important to keep in mind in reviewing the reasons of a lay tribunal, the task of the Commission is not to be overly critical of the language used nor to focus on mistakes that do not affect the decision as a whole. This approach must be kept in mind when the reasons of the hearing officer are examined as he is not legally trained: see Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301.

33. Applying these principles, Mr. Solomon submitted that the Hearing Officer’s decision provided a clear line of analysis and cited the evidence to support the reasoning leading to his conclusions. Therefore the decision meets the standard of reasonableness and ought not to be varied.

34. Mr. Solomon then referred to the factors to be considered in sentencing as applied in Williams, supra, and Reilly and Brockville Police Service, (May 12, 1997, OCCPS).

35. He pointed out how the Hearing Officer had considered each factor and properly noted that the facts underscored that the misconduct was very serious, that it had occurred not once but on three separate promotional processes over a period of more than two years, that the acts of the Appellant were deliberate and planned enabling another member of the Service to cheat on the examinations thus negatively impacting other members of the Service taking such examinations. By doing so, the Appellant chose to disregard her professional obligations by breaching the stated Core Values of the Service and violating the trust placed in her by the Service and the public.

36. He submitted that the Hearing Officer properly found that the Appellant was a willing participant, knew exactly what she was doing and took no action to stop, prevent or report the misconduct of the other member of the Service although having many opportunities to do so. The Hearing Officer properly found that the

reputation of the Service was adversely affected by the publication of an article in a national newspaper.

37. Mr. Solomon stated that the Hearing Officer appropriately noted that both specific and general deterrence played a prominent role in his deliberations on penalty. The Hearing Officer noted that the purpose of the discipline process is to correct behaviour, deter others from similar type behaviour and to assure the public that the police are accountable for their misconduct.

38. Mr. Solomon pointed out that the Hearing Officer gave consideration to the Appellant’s prior unblemished employment history, and her achievements and commendations. He stated, however, that while the Appellant was receiving more opportunities and trust by the Service, at the same time, she was betraying that trust by participating in the cheating by the other member of the Service. The Hearing Officer was entitled to consider that betrayal as an aggravating factor.

39. In his factum, Mr. Solomon noted the comments of the Hearing Officer confirming consideration of the Appellant’s difficult personal circumstances both before and after entering the Service and that her unblemished record affirmed her potential for rehabilitation.

40. Mr. Solomon pointed to the Hearing Officer’s comments that, were it not for her recognition of the seriousness of her misconduct, the guilty plea, her co-operation with investigators, that she did not receive any compensation for her involvement and her expressed apology, he would have imposed a harsher penalty. These mitigating factors are reflected in his penalty.

41. The Respondent refuted the Appellant’s argument that the Hearing Officer misapprehended the evidence by apparently inferring that the Appellant participated in the misconduct for personal gain or career advancement. Mr. Solomon vigorously argued that a common sense reading of the statements contained in the decision does not support such inferences.

42. Similarly, the Respondent contested the inferences the Appellant tried to draw from the comments of the Hearing Officer. Mr.

Officer inferred that the Appellant and Const. No. 2 were equal partners in the cheating or that he failed to take into account the psychological issues faced by the Appellant in forming his conclusions on her motivation for participation.

43. Once again, Mr. Solomon asserted that the Appellant was imputing to the Hearing Officer conclusions which were totally unsupportable on a proper review of his statements. The Hearing Officer was entitled to find that there was little or no evidence of a medical or psychological nature to support the Appellant’s contention that she was rendered incapable of deciding not to participate in the cheating.

44. The Respondent refuted the Appellant’s submission that the Hearing Officer gave disproportionate weight to the cases provided by the Respondent and asserted that there was a detailed analysis of all cases submitted by both parties.

45. Mr. Solomon rejected as totally false and an outrageous, offensive impugning of the Hearing Officer’s integrity, the Appellant’s argument that the Hearing Officer determined the penalty in order to influence the disposition of any disciplinary matter regarding Const. No. 2.

46. It was submitted that the Hearing Officer reviewed the cases presented to him by both parties and correctly concluded that none were similar to the circumstances of this case. He acknowledged, however, that they did provide helpful context to assess the Appellant’s misconduct and establish a suitable framework for deciding upon a penalty.

47. Mr. Solomon submitted that although consistency is an important principle in sentencing, he referred to the Gibson case, supra, in which the Commission stated that there are reasons why a province-wide uniformity is not always an appropriate objective. Police forces are each entitled to emphasize corrective measures for problems which may be of particular concern and these concerns may change from year to year, and community demands and standards may differ from one to another.

Officer, the one that was the most analogous to the facts of this case is Kennedy and Toronto Police Service, January, 1994, case No. 30-1993, Metropolitan Toronto Police Services Board. In that case, the officer pled guilty to three charges of discreditable conduct. He had cheated on a promotional examination by providing a forged document indicating he had a university degree. He was dismissed by a disciplinary tribunal but appealed and the sentence varied to one of demotion from Sergeant to Second Class Constable.

49. Mr. Solomon referred to the other cases filed by the Appellant and went on to distinguish each one. He submitted that the Hearing Officer correctly determined that there was insufficient information upon which he could rely regarding Niagara Police Service cases referred to by Mr. McKay.

50. Mr. Solomon argued that the principle of totality did not apply, as argued by the Appellant, to the facts of this case. He referred to the comments of the Commission in More and York Regional Police Service, (March 26, 2001, OCCPS) where it was held that acts which are sufficiently distinct and separated by time warrant cumulative penalties.

51. Finally, Mr. Solomon submitted that the Hearing Officer fairly and impartially considered and appropriately weighed all of the relevant sentencing factors, both mitigating and aggravating, and the penalty was reasonable and within the range of accepted penalties and should not be varied. He urged that the penalty of forfeiture of 40 to 80 hours was totally inadequate to impart deterrence and to repair the damage to the reputation of the Service. He requested that the appeal be dismissed.

Reasons for Decision

52. The principles to be applied by the Commission on an appellate review of a disciplinary decision are well settled.

53. The standard of review is clear. A hearing officer must interpret and apply the law correctly. His/her findings of fact, and a decision as to penalty, must be reasonable: see Dunsmuir, supra:

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

54. The 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 a range of possible acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir, supra.

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

56. In certain limited cases it may be open to the Commission to reach a different conclusion than that reached by the Hearing Officer. However, we should only intervene if there has been an error in principle, or relevant factors have been ignored: see Williams supra; Wilson and Ontario Provincial Police (November

20, 2006, OCCPS); Favretto and Ontario Provincial Police, (February 13, 2002, OCCPS); Karklins and Toronto Police Service (September 25, 2007, OCCPS) and Quintieri and Toronto Police Service (2002) 3 O.P.R. 1509 (OCCPS).

57. An appeal to the Commission is an appeal on the record. Unlike the Hearing Officer, we do not have the advantage of hearing and observing any 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: see Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont. 1583 (Div. Ct.).

58. The issues before the panel are:

misapprehending the evidence and imputing into the Appellant’s conduct the false and unsupported notion that that she was motivated to participate in the cheating by a desire for personal gain or professional advancement?

b) Did the Hearing Officer err by misapprehending or misapplying the law by not affording any weight to or misinterpreting or failing to consider the case law submitted by Appellant’s counsel?

c) Considering the circumstances in totality, is the penalty imposed harsh, excessive and inconsistent with other penalties for similar misconduct?

59. Having reviewed the record of the disciplinary proceedings, the reasons for decision, the grounds of appeal and the submissions of the Appellant and Respondent, we are respectfully unable to agree that the Hearing Officer committed manifest error by misapprehending the evidence or the law or misapplying the law to the factual circumstances as submitted by the Appellant. We find that the reasons for decision are articulated in a logical, intelligent and transparent manner and therefore meet the standard of reasonableness. In such circumstances, we find no reason to intervene.

60. Specifically, we have reviewed the statements of the Hearing Officer which the Appellant claims indicate that the Hearing Officer repeatedly and incorrectly imputed a motivation of personal gain of professional advancement to the Appellant’s conduct. These statements refer to the Appellant having been placed in a new Division and given opportunities for advancement in the Service at the same time she was participating in the scheme to cheat. This was considered an aggravating factor. The Appellant also referenced the statement by the Hearing Officer that during the time the Appellant was involved in the scheme, she was given the opportunity of assignment to the detective office and subsequently commended for an arrest.

61. The Appellant’s argument that these statements support her contention of the Hearing Officer’s erroneous theory must be

respect, we cannot agree with the Appellant’s argument.

62. The facts set out in the Statement and Exhibits filed at the disciplinary hearing support the Hearing Officer’s conclusion that, during the time she was being given opportunities for professional advancement, the Appellant was undermining the core values of the Service. It is important to note these comments were made in the context of considering the aggravating factors of her misconduct.

63. Similarly, we cannot agree with Const. Wolosinovsky’s assertion that the Hearing Officer’s comment that both she and Const.No.2 decided to cheat on the promotional exams confirms his having drawn an erroneous inference that they were equal partners in the scheme. That inference is clearly not supported by examining the context. In fact, the Hearing Officer prefaces those comments by stating at page 17 of his decision that there was no evidence before him as to who came up with the idea of using electronic equipment to cheat and he concluded that it was Const. No. 2 who took the lead.

64. The evidence also supports the Hearing Officer’s finding that the Appellant was a willing participant in all three occurrences and knew exactly what she was doing. The statements that the Appellant “could have refused at anytime or simply said “no” ” was an entirely reasonable conclusion the Hearing Officer could make in the context of weighing the evidence.

65. The Appellant submitted that there was no consideration given to her personal circumstances and the psychological issues she was dealing with when considering her involvement in the cheating. However, we note that the Hearing Officer clearly weighs these issues when he states:

I have taken into consideration the personal situations that Const. Wolosinovsky was going through, including her circumstances before and after she joined the Toronto Police Service, and her face to face counselling sessions throughout 2011.

expressed his considerations differently, we can find no reason to be critical of his analysis of these factors. Earlier in his decision, there is an analysis of the Appellant’s personal history, the workplace stresses she faced at 12 Division, and in her later need to seek counselling.

67. The Hearing Officer received presentations of 11 cases from each of the prosecution and defence for his consideration of penalty. Opportunity was afforded to each to refer to those cases most closely analogous to this one. None involved identical or similar factual circumstances. He indicated that they were helpful in providing context to assess the Appellant’s misconduct and a framework for determining penalty.

68. The Hearing Officer determined that he would address some of the cases he considered most relevant to the circumstances and he undertook a comparative analysis of each. He noted that the penalties ranged from forfeiture of between 15 to 40 days, to demotion of several classifications and up to dismissal at the highest end. That analysis appeared to result in a conclusion that demotion was within the range of acceptable penalties and was consistent with the cases examined. He expressed his views on the Appellant’s cases and set out his reasons for distinguishing them.

69. There was no fundamental error in the logic of such analysis and we do not find compelling the assertion that there was a weighting of such cases in favour of the prosecution.

70. As has been expressed many times by this Commission, consistency is the hallmark of fairness: see Buckle and Ontario Provincial Police (May 11, 2005, OCCPS) and Schofield and Metropolitan Toronto Police (1984) 2 O.P.R. 613 (O.P.C.). We find that there is consistency of the penalty imposed here with prior cases, and that the penalty clearly falls within the range of acceptable outcomes.

71. The Appellant alleged that the Hearing Officer failed to apply the principle of totality in deciding penalty as expressed in More, supra, particularly where there are multiple disciplinary charges

that such failure resulted in the penalty imposed consisting of consecutive rather than concurrent sentences.

72. In this case, however, there were three separate charges arising from three separate distinct occurrences committed several years apart and involving deliberate acts of misconduct. In such circumstances, we concur with and adopt the Commission’s statement in More, that it would be incorrect to apply the totality principle in such circumstances.

73. We have also reviewed the reasons for decision to determine whether the Hearing Officer considered all of the relevant sentencing factors, including, the nature and seriousness of the misconduct, the damage to the reputation of the Service, the need for specific and general deterrence, the officer’s ability to reform or rehabilitate, the employment history and experience, the officer’s recognition of the seriousness of the misconduct, any personal handicap or hardship and management’s approach to such misconduct.

74. The Hearing Officer extensively reviewed and considered each of these factors. He found that the misconduct was very serious and was a violation of the policies and values established for the Service.

75. In addition, he found that the actions of the Appellant violated the trust placed in the police force not only by members of the public but also by other members of the Service. Such actions thereby damaged the reputation of the Service.

76. He clearly expressed the view that her involvement in the misconduct with another member of the Service made the need for specific and general deterrence a priority. He expressed the need to send a clear message to members of the Service and the public that such misconduct will not be tolerated.

77. After reviewing the Appellant’s employment history and experience, her co-operation in the investigation, her guilty plea and expression of remorse and apology, he was satisfied that she recognized the seriousness of her misconduct, that she could

reform and be rehabilitated and continue to be a valued member of the Service.

78. There was no evidence presented that provocation, procedural fairness or economic hardship were relevant factors in this case.

79. We find the extensive consideration of these sentencing factors to be reasonable.

80. The Appellant participated in a deliberate and planned scheme to permit another member to cheat on promotional examinations. These actions on her part were surreptitious and committed over a period of two years. Such conduct calls into question her honesty and ability to uphold the responsibilities placed upon her as a sworn member of the Service under the Act and the policies of the Service.

81. Aside from these unfortunate events, the Appellant’s employment record is exemplary, and her prospects for rehabilitation and reinstatement to her former classification are encouraging. From her record, she has exhibited very positive behaviour to the point of being considered one of the strongest officers in her platoon, respected by her peers, well able to work without supervision and to problem solve quickly and safely.

82. She was given increased responsibilities and responded to the challenges in a very positive manner and received commendations.

83. Those evaluations will no doubt be tempered as a result of this proceeding.

84. Considering the reasons for decision in totality, we can find no manifest errors in principle in the interpretation and application of the facts or law in determining the penalty herein. The Hearing Officer’s analysis is transparent, intelligible and logical and the penalty imposed is within the range of penalties for the type of misconduct committed.

85. In summary, on the issues posed in paragraph 58, we would answer all in the negative.

Conclusion

86. For the reasons set out above, the appeal is dismissed.

DATED AT TORONTO THIS 21ST DAY OF FEBRUARY, 2013

David C. Gavsie

Roy B. Conacher Q.C.

Zahra Dhanani

Chair, OCPC

Member, OCPC

Member, OCPC