Stock v. Windsor Police Service, 2014 CanLII 100622

ONTARIO CIVILIAN POLICE COMMISSION

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

1990, C.P.15, AS AMENDED

Citation: Stock v. Windsor Police Service, 2014 ONCPC 13

BETWEEN:

CONSTABLE MARK STOCK

APPELLANT

-and-

WINDSOR POLICE SERVICE

RESPONDENT

DECISION

Panel: Jacqueline Castel, Member

Georges Bedard, Member

Hearing Date: September 16, 2014

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:

Maria V. Carroccia for the Appellant, Constable Mark Stock. David M. Amyot for the Respondent, Windsor Police Service. Introduction

1. Constable Mark Stock (“Const. Stock”) was charged with

one count of Discreditable Conduct under section

2(1)(a)(xi) of the Code of Conduct, set out as a Schedule to Ontario Regulation 268/10 enacted under the Police Services Act R.S.O. 1990, c. P.15, as amended, (the “Act” or the “PSA”).

2. The charge pertained to a phrase in an email Const. Stock sent to his ex-wife, Manon Blanchette, while he was off- duty. The email concerned access to their children over Easter weekend. The phrase of the email at issue was:

…also, thank you for costing me 9 days’ pay for sending your lawyer a fax …. THIS WILL NOT BE FORGOTTEN. (bold-face, capitalized text in red lettering)

3. This phrase was referring to an earlier situation where Const. Stock accepted an informal resolution to one count of Discreditable Conduct for misuse of police equipment. Specifically, he used the Respondent’s fax machines to send correspondence to the law firm retained by his ex- wife. He received a penalty of the loss of 9 days’ pay.

4. Ms. Blanchette forwarded the email to her lawyer, Ms. Amy Lavoie. Ms. Lavoie, in turn, forwarded the email to the Professional Standards Branch of the Respondent.

5. The matter proceeded as a Chief’s complaint since neither Ms. Blanchette nor Ms. Lavoie wished to file a public complaint.

6. A hearing into the matter was held before Superintendent Michael Langlois (the “Hearing Officer”), at which Const. Stock pled not guilty to the charge.

7. The Hearing Officer found the email to be threatening and consequently found Const. Stock guilty of one count of Discreditable Conduct. He imposed a penalty of a loss of 5 days’ pay.

8. Const. Stock is appealing the decision on conviction. He is not appealing the penalty.

Decision

9. The appeal is allowed for reasons which follow.

Background

10. The full email exchange between Const. Stock and Ms.

Blanchette reads as follows:

Ms. Blanchette: Good evening Mark

Hope things are well?

Easter is around the corner, and just a reminder that we have always split Easter weekend, you

will have the girls from Thursday

April 5 at 6 pm until Saturday 7 at

6 pm. I will have them from Saturday at 6 pm and on, thanks and have a great night!

Manon

Const. Stock According to the schedule I am to have them this weekend from Fri at 6 until Sun at 6 … so you’re just changing this on your own?

And who would be taking them to Church for Easter, as I am raising my daughters as Catholics?

The week 3 weeks I am taking them this summer as stated in our signed agreement are as followed:

JUNE 30TH – JULY 7TH JULY 28TH – AUG 4TH AUG 25TH – SEPT 1ST

Also, thank you for costing me 9 days’ pay for sending your lawyer a fax … THIS WILL NOT BE FORGOTTEN!!! (Bold-faced and capitalized text in red)

Ms Blanchette This is not changing anything as we have always shared Easter weekend from the past years, nothing new, I will drop them off Thursday at 6 pm at Sobeys and will be back to pick them up Saturday night at 6 pm. Don’t worry I will take them to church like I always have and always will.

Thanks and have a great night.

11. The Hearing Officer heard evidence from Ms. Lavoie, Ms.

Blanchette and Const. Stock.

12. Ms. Lavoie testified that she presented the email to the Respondent because she found it “inappropriate” and “harassing”, but acknowledged that Ms. Blanchette did not express any concern to her about her personal safety as a result of the email.

13. Ms. Lavoie also testified that it is not unusual for both parties to engage in inappropriate conduct during divorce proceedings.

14. Ms. Blanchette testified that her relationship with her ex- husband was acrimonious and that, on one occasion, she left 12 voice mail messages for Const. Stock wherein she called him names and was swearing.

15. Ms. Blanchette also testified that she interpreted the email as “harassment” and “bullying”. She admitted on cross- examination that she did not feel the email was a matter to bring to the attention of the police. Rather, she felt it was a matter to pass on to her lawyer.

16. Const. Stock was cross-examined about the meaning of the words he used. He indicated he was intending to convey that he was not going to continue to change his scheduled access to the children to accommodate Ms. Blanchette.

Appellant’s Submissions

17. Ms. Carroccia submitted that, given the wording of s. 80(2) of the PSA, it was incumbent on the prosecution to establish, on clear and convincing evidence, that there was a connection between Const. Stock’s conduct and the occupational requirement for a police officer or the reputation of the police force. See: James Darryl Monaghan v. Toronto Police Services (2005) CanLII 11796 at p. 7 para. 22 and 26.

18. She argued that no such evidence was called.

19. Ms. Carroccia submitted that the conduct at issue concerned a private email between Const. Stock and his ex-wife. Although he may have known there was a possibility the email would be forwarded to his ex-wife’s lawyer, the email was not meant to be made public and does not interfere with or reflect on his occupation.

20. She also submitted that there was no basis for finding the email threatening given Ms. Blanchette’s evidence that she did not take the email to be threatening and that Const. Stock was not charged with threatening his ex-wife. In making this finding, the Hearing Officer improperly substituted his own opinion of the email message for the evidence of the witnesses. She quoted from the Commission’s decision in Stevenson v. York Regional Police Services (November 7, 2013, OCPC) at para 162 to support her submission:

While adjudicators are permitted to use their experience when assessing the evidence, they are not permitted to use their experience to fill in gaps in the record or to make essential findings of fact. Essential findings of fact must be made on the basis of the evidence: see Sheddy v. Law Society of British Columbia, supra.

21. Ms. Carroccia argued that although the Hearing Officer identified the appropriate test to be considered, he did not properly apply the test to the facts of the case. In determining whether the conduct brought or would likely bring discredit upon the Police Service, the Hearing Officer should have considered what a “reasonable person” would think in the circumstances. She relied on Gilbert Morin v. Ontario Provincial Police (August 29, 1996, OCCPS).

22. Ms. Carroccia submitted that when a Hearing Officer introduces irrelevant or subjective elements into the analysis, he makes an error. She relied on Susan Mancini

and Constable Martin Courage of the Niagara Regional

Police Service (August 12, 2004, OCCPS) at pages 15-16.

23. She argued that in focusing on whether or not Const. Stock accepted full responsibility for his earlier misconduct, the Hearing Officer failed to properly consider the issue of whether the prosecutor had proven, on clear and convincing evidence, that the conduct was discreditable. She highlighted the following passages of Mr. Justice Matlow’s decision in James Darryl Monaghan v. Toronto Police Services, supra, at page 7, paragraph 28:

The Appellant was not charged with rude or overbearing conduct or even with merely engaging in an unfriendly or angry confrontation with the constable. The particulars set out in the notice of hearing had to be considered in light of the substantive allegation in the opening lines of the notice of hearing and the essential elements of the offence alleged and the Tribunal, like the hearing officer earlier, failed to do so. Instead it focused on peripheral issues such as whether or not there had been a reprisal.

24. She submitted that the Commission should intervene and overturn the Hearing Officer’s decision because his findings lack an evidentiary basis.

25. She argued that the following finding by the Hearing Officer was contrary to the evidence: “Stock also had no explanation as to why he mentioned the loss of nine days pay, if indeed the message he was trying to convey was about custody and access to the children. The one has nothing to do with the other.” She submitted that Const. Stock did explain this and was cross-examined extensively on the point.

26. She also submitted that the Hearing Officer failed to give reasons for disbelieving Const. Stock’s explanation of what he meant or intended in sending the email and that this constituted an error.

Respondent’s Submissions

27. Mr. Amyot submitted that there is no merit to the Appellant’s contention that the Hearing Officer’s decision is contrary to s. 80(2) of the PSA. The Hearing Officer’s reasons specifically conclude that the Appellant’s off-duty conduct would negatively affect the Respondent’s reputation should such actions become public knowledge.

28. He disputed the Appellant’s assertion that actual evidence of a negative impact on the police service’s reputation, as a result of the off–duty conduct, is required for there to be a finding of guilt to the charge of Discreditable Conduct. Mr. Amyot relied on the following cases to support his argument that potential damage is sufficient to establish “the connection” or “nexus” between the alleged misconduct and the reputation of the police force: Silverman and Ontario Provincial Police (1997), 3 O.P.R.

1181 (O.C.C.P.S.) at 1887 and Mancini and Constable Martin Courage of the Niagara Regional Police Service, supra.

29. In addition, he rejected the Appellant’s argument that the Hearing Officer committed an error by finding that the email message was threatening when there was no evidence from Ms. Blanchette that she considered it a threat. He submitted that an objective standard should be applied to determine whether the impugned email message could be considered threatening. He relied on Burdett and Guelph Police Service (13 May, 1999, OCCPS) and Mancini and Constable Martin Courage of the Niagara Regional Police Service, supra.

30. Mr. Amyot submitted that the Commission found in Burdett, supra, that a “private communication” by one police officer to a member of the public is sufficient to establish Discreditable Conduct, even though the recipient of the message did not find it threatening.

31. He stated that the Hearing Officer considered the circumstances in which the email was sent (i.e., an acrimonious marital breakdown where the Appellant engaged in prior Discreditable Conduct towards the same individual(s) that resulted in a loss of 9 days’ pay), and properly concluded, on an objective standard, that the message was threatening, or at very least, intimidating, and that if the message were to come to the public’s knowledge, it would likely bring discredit upon the police service.

32. Mr. Amyot submitted that the Hearing Officer’s conclusions, made after explaining and applying the correct legal test, are reasonable and should be accorded a strong presumption of deference.

33. He argued that the evidence supported the Hearing Officer’s factual findings and conclusion. The evidence before the Hearing Officer demonstrated that the Appellant blamed his ex-wife for his prior Discreditable Conduct charge and the resulting penalty of a loss of 9 days’ pay. The conclusion was a finding which was well within the range of possible conclusions the Hearing Officer could make, based on the evidence.

34. Further, Mr. Amyot argued that the Appellant’s acceptance or non-acceptance of responsibility for his prior misconduct was a relevant consideration with respect to assessing his explanation for sending the impugned email message to his ex-wife, as the message specifically blamed her for the loss of pay.

35. He also submitted that the Hearing Officer did not focus on the issue of whether or not Const. Stock accepted full responsibility for his earlier misconduct in reaching his conclusion that the message constituted Discreditable Conduct. He made his finding, that the Appellant did not accept full responsibility for his actions, after he concluded that the Appellant’s explanation for the message was not believable.

36. Mr. Amyot rejected the Appellant’s assertion, that the Hearing Officer misapprehended the evidence with respect to his observation that the Appellant failed to provide an explanation for his reference to his penalty of a loss of 9 days’ pay in the email. He argued instead that the evidence presented to the Hearing Officer provided a sufficient basis for this conclusion.

37. Finally, Mr. Amyot also disputed the Appellant’s argument that the Hearing Officer failed to give adequate reasons for disbelieving the Appellant. He argued that the Hearing Officer’s reasons for disbelieving the Appellant are clear on the face of his decision. Specifically, he found that the justification for sending the message proffered by the Appellant was not credible (compared to the plain meaning of the words and format used), and that the Appellant was evasive when questioned about same. This conclusion was reasonable and supported by the evidence.

Reply Submissions

38. Ms. Carroccia responded that she agrees the Hearing Officer correctly articulated the legal test for finding Discreditable Conduct for off-duty behaviour. However, it is her position that the Hearing Officer did not apply the test he articulated to the facts of the case.

39. She submitted that the Hearing Officer did not apply a reasonable person standard. Instead, he substituted his own personal opinion.

40. She also submitted that the Hearing Officer should have assessed how a reasonable person, knowing all the evidence and surrounding circumstances, would view the email.

Reasons

Standard of Review

41. The Standard of review for the Commission with respect to the Hearing Officer’s factual findings is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 (SCC).

42. The standard of review with respect to the Hearing Officer’s interpretation and application of the general law is correctness: see: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.).

43. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir v. New Brunswick, [2008] 1

S.C.R. 190:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific particular result. Instead, they may give rise to a number of possible reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable rational solutions. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision

falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law.

44. Past Commission decisions have spoken to our role on an appeal, noting that we are 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 a logical manner: see Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div. Ct.).

45. In certain limited cases it may be open to the Panel to reach a different conclusion from the trier of fact. However, the Panel should only intervene if there has been an error in principle, or relevant factors have been ignored: see Williams, 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).

46. 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 the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence: see Blowes-Aybar and Toronto (City) Police Service, supra.

Discreditable Conduct

47. Section 80(2) of the Act provides:

A police officer shall not be found guilty of misconduct under subsection (1) if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force.

48. Misconduct is defined under section (2)(1)(a)(xi) of Ontario

Regulation 268/10 as conduct where a police officer:

Acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force of which the officer is a member.

49. The Appellant and Respondent are agreed that the Hearing Officer correctly identified the legal requirements for a finding of Discreditable Conduct.

Evidentiary Foundation and Reasons

50. The main issue before us turns on how the law was applied to the facts of the case. Specifically, did the Hearing Officer have an evidentiary foundation and provide adequate reasons to support his findings that (1) the email was threatening, and (2) there was a connection between the email and the reputation of the Respondent?

51. We agree with the Respondent that it would not have been appropriate for the Hearing Officer to rely solely on Ms. Blanchette’s subjective perception of the email. The test is an objective one. See: Morrin v. Ontario Provincial Police, supra, and Burdett and Guelph Police Service, supra.

52. In applying an objective test, the Hearing Officer needed to consider the evidence, give reasons and explain why, in the context of this evidence, the reasonable person would find the email (a) to be threatening and (b) to be likely to bring discredit upon the reputation of the Respondent if it were made public.

53. The oral evidence before the Hearing Officer was from Ms.

Blanchette, Ms. Lavoie and Const. Stock. Ms. Blanchette and Ms. Lavoie both testified that they did not find the email to be threatening. Ms. Blanchette testified that she

felt the email was something to bring to the attention of her lawyer, but not something worthy of police attention. Const. Stock was not charged with threatening Ms. Blanchette. He testified that the email was intended to convey that he would not continue to change the scheduled access to his children to accommodate Ms. Blanchette, and the impugned phrase was part of a longer email concerning a real or perceived change to the access schedule over Easter weekend. Ms. Blanchette and Const. Stock both testified that their divorce had been acrimonious. Ms. Lavoie further testified that it is not unusual for both parties to engage in inappropriate conduct during divorce proceedings.

54. The Hearing Officer did not provide reasons or an explanation to support the conclusions he reached, in the context of the evidence before him. He also did not provide any type of analysis as to how, in the circumstances of this case, the reputation of the police force was likely to be adversely affected, if the email were to be made public. He simply concluded that “in his opinion” the email was threatening, most people would view it as threatening, and this brought discredit to the police service. There was no explanation of “why” and “how”, given the evidence.

55. As the Divisional Court made clear in Monaghan v. Toronto

Police Services, supra, at page 7:

…it was necessary for the prosecutor to prove that the appellant’s conduct would likely bring discredit upon the police force and that it was not sufficient for the prosecutor to prove that it was only a possibility.

56. We agree with Ms. Carroccia that the issue of whether or not Const. Stock accepted responsibility for his previous misconduct was peripheral to the allegation of Discreditable

Conduct and that the Hearing Officer placed too much emphasis on this issue. He stated at page 11 of the Decision,

I find it particularly egregious that despite pleading guilty to misconduct and indicating remorse on his part, Constable Stock clearly did not accept full responsibility for his actions. To make matters worse, he cast blame on his estranged wife who had nothing to do with it.

57. Based on a plain language reading of the above phrase, the most serious or “egregious” thing about the email, in the opinion of the Hearing Officer, was that it conveyed that Const. Stock did not take responsibility for his prior misconduct.

58. As in James Darryl Monaghan v. Toronto Police Services, supra, in focusing on this peripheral issue, the Hearing Officer failed to properly assess whether the prosecutor had proven, on a balance of probabilities supported by clear and convincing evidence, that the conduct was discreditable.

59. Considering the evidence before the Hearing Officer, we find that the Decision does not fall into the range of possible or acceptable outcomes which are defensible in respect of facts and law. There is no evidentiary basis to support the finding that the email was threatening and that it would likely bring discredit upon the Respondent, if it were made public. There were also no reasons, explanation or discussion as to how the email would likely bring discredit upon the Respondent, in the circumstances of this case if it were made public.

60. Given the aforementioned findings, it is not necessary for us to address counsels’ submissions on the misapprehension of evidence and adequacy of reasons for disbelieving the Appellant’s explanation.

61. Therefore, for the above reasons, the appeal is allowed.

DATED AT TORONTO, THIS 15TH DAY OF OCTOBER, 2014

Jacqueline Castel Georges Bedard

Member, OCPC Member, OCPC