Power v. London Police Service, 2014 CanLII 100624

ONTARIO CIVILIAN POLICE COMMISSION

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

1990, C.P.15, AS AMENDED

Citation: Power v. London Police Service, 2014 ONCPC 9

BETWEEN:

CONSTABLE CHAD POWER

APPELLANT

-and-

LONDON POLICE SERVICE

RESPONDENT

DECISION

Panel: Roy Conacher Q.C., Vice Chair

Jeffrey L.D. King Q.C., Member

Hearing Date: June 13, 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:

Sam Walker, Counsel for the Appellant. Bruce Brown, Counsel for the Respondent.

Introduction

1. On September 12, 2012, Constable Chad Power (the

“Appellant” or “Const. Power”), a police officer with the London Police Service (the “Service” or “LPS”), was charged with two counts of discreditable conduct contrary to S. 2 (1)(a)(xi) of the Code of Conduct (the “Code”) set out in Ontario Regulation 268/10, as amended, and therefore contrary to s. 80(1) of the Police Services Act, R.S.O., 1990,c.P.15, as amended (the “Act”).

2. On April 18, 2013, Const. Power was found guilty on one count of discreditable conduct by a decision issued by Staff Inspector Brian Fazackerley (the “Hearing Officer”). The other count was withdrawn.

3. On September 13, 2013, the Hearing Officer issued his decision on penalty imposing the following penalty upon Const. Power: “forfeiture of 48 hours [6 days] time off to be scheduled in the discretion of PC Power’s unit commander within 6 weeks of his return to the workplace. I would further direct that PC Power forthwith write a sincere letter of apology directly to the Chief of Police for the St. Thomas Police Service in relation to his actions on June 17, 2012. That letter should be c.c’d to the Chief of the London Police Service.”

4. The Appellant had been the subject of a prior disciplinary hearing before Hearing Officer M. P. B. Elbers. In that prior unrelated proceeding Hearing Officer Elbers convicted the Appellant (decision issued on August 31, 2012), and imposed a penalty (decision issued on November 30,

2012). The Appellant appealed that decision to the

Commission.

5. During the penalty phase in this proceeding the parties brought a motion before the Hearing Officer to determine whether in deciding the appropriate penalty, he could consider the Appellant’s prior conviction and penalty by Hearing Officer Elbers which were still under appeal to the Commission. In his ruling on that motion issued on July

25, 2013 the Hearing Officer found that in determining an appropriate penalty in this Hearing he was entitled to consider the Appellant’s conviction and penalty in the prior disciplinary hearing. In his ruling on the motion he stated: “the automatic stay, provided by s.25(1) SPPA [Statutory Powers Procedure Act] presumptively stops the forward progress of any penalty assessed or other action taken under s.85 PSA [the Act] from being implemented or carried out, but does not forestall a ‘reference to the allegations of complaint or hearing’ from being made in the employment record and does not foreclose the facts of the hearing and finding of guilt from being considered in sentencing in any subsequent Part V hearing.”

6. The Hearing Officer concluded his penalty decision issued on September 13, 2013 by adding the following:

“Finally, in consideration of my earlier Ruling regarding the pending appeal of the prior discipline conviction and the possibility it might be revoked by the Commission, I can indicate that, absent that prior discipline, I would have found that 24 hours [3 days] forfeiture of time off would have been a fit and appropriate disposition in addition to the letter of apology as above”.

7. In a decision issued on December 23, 2013, the Commission granted the Appellant’s appeal from the decision of Hearing Officer M. P. B. Elbers, setting aside the decision and staying all disciplinary charges against the Appellant in that proceeding.

8. Const. Power appeals the penalty issued September 13,

2013 and requests an order setting aside that decision and, in its place, substituting an order imposing a penalty of forfeiture of 24 hours off to be scheduled at the discretion of PC Power’s unit commander and a requirement that Const. Power write a letter of apology to the Chief of Police for the St. Thomas Police Service in relation to his actions on June 17, 2012.

9. The Commission has received, in essence a joint submission from the Parties to implement the alternative decision of the Hearing Officer (referenced in paragraph 6 above).

Decision

10. For the reason set out herein, the appeal is allowed and the penalty decision is varied to forfeiture of 24 hours [3 days] off to be scheduled at the discretion of Const. Power’s Unit Commander. Further, Const. Power is required to write a letter of apology forthwith to the Chief of Police of the St. Thomas Police Service relating to his conduct on June 17,

11. A copy of that letter is to be delivered to the Chief of the London Police Service.

Background

11. The facts giving rise to the misconduct charges against the Appellant are not in dispute. On June 16, 2012, members of the St. Thomas Police Service were called to an address in that City regarding a domestic dispute between the Appellant and a female police officer, who was also

employed with the LPS, and with whom the Appellant was involved in an intimate relationship.

12. The following day, June 17, 2012, members of the St. Thomas Police Service were called a second time to the same address as the result of a further domestic problem between the Appellant and the same female officer. It was determined that the Appellant, realizing that his entry into the residence was blocked and his belongings placed in the garage, forced his entry into the residence by breaking through the inner garage door. The female was on the telephone to the St. Thomas Police Service and its officers arrived very shortly thereafter.

13. The Appellant confronted the officers at the front door and there were profanities directed towards them at the time and during their attendance at the residence. The Appellant’s behaviour was disrespectful, unprofessional, condescending and aggressive towards the St. Thomas police officers and was disdainful and dismissive at times when the Appellant was requested and ultimately ordered to comply with their demands.

14. The Appellant was arrested and charged with forcible entry and mischief under $5,000.00 contrary to sections 72(1) and 430 (4) respectively of the Criminal Code of Canada. Those charges were withdrawn within a month.

15. A subsequent Professional Standards investigation by the

Service led to the misconduct charges herein.

Appellant’s Position

16. Mr. Walker submitted that, in view of the Hearing Officer’s own finding as to the “appropriate alternate penalty” should the Commission have dismissed or varied the prior misconduct charge on appeal, the forfeiture of time off

should be reduced to 24 hours or 3 days from 48 hours or

6 days with the balance of the penalty to remain.

17. He advised that the Respondent was in agreement with the submission on penalty and it could be considered a joint submission.

18. No further submissions were made by the Appellant.

Respondent’s Position

19. Mr. Brown concurred that, in view of the circumstances and what he termed as the “conditional decision of the Hearing Officer”, the most appropriate penalty was to implement the “alternative decision” of the Hearing Officer. The issue of a prior discipline record is now moot.

20. He made no further submissions.

Reasons

21. Const. Power was appointed as a sworn police office with the Service on May 14, 2003. The Appellant’s Performance Assessments for the period May 2009 to May 2011 include a number of commendations and notations of good performance. The only disciplinary matters during that time period were the ones dealt with in the decision of Hearing Officer Elbers which was set aside on appeal. These matters are now moot. No other prior employment history was introduced in evidence at the disciplinary hearing.

22. The Panel has reviewed the reasons for decision on penalty dated September 13, 2013, and finds that the Hearing Officer has dealt satisfactorily with each of the factors to be considered and weighed when determining penalty as described in Williams and Ontario Provincial Police, (1995)

23. O.P.R. 1047; and Krug and Ottawa Police Service, (January 21, 2003, OCCPS).

24. This is an appeal on the record and the principles of appellate review are well settled. The standard of review with respect to findings of fact is one of reasonableness. Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9. Reasonableness has been stated to be concerned mostly with justification, transparency and intelligibility and also whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board) 2011, S.C.C.

62; Dunsmuir, supra.

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

25. Our role on an appeal is not to second-guess the decision of a hearing officer but 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 transparent, logical and intelligible manner. Precious and Hamilton Police (2002) 3 O.P.R. 1561 (OCCPS).

26. The Commission has stated that it may be open, in limited cases, to reach a different conclusion from the hearing officer. However, there should only be intervention if there has been an error in principle or relevant facts have been ignored. Wilson and Ontario Provincial Police, (November

20, 2006, OCCPS); Karklins and Toronto Police Service, (September 25, 2007, OCCPS).

27. The Commission has jurisdiction to intervene and vary a penalty decision if there has been a failure to weigh sentencing factors appropriately or if a penalty is unreasonable, given all of the circumstances, or would

amount to an injustice or unfairness. Carson and

Pembroke Police Service (2001) 3 O.P.R. 1479.

28. In this case, the Commission has received, in essence, a joint submission to implement the “alternative decision” of the Hearing Officer. The Commission has stated in the past that significant weight must be afforded to a joint submission on penalty, particularly where considerable analysis has been given to all appropriate factors in arriving at the joint submission. Nevertheless, in our view, the Commission ought to satisfy itself that what is being proposed in terms of a joint penalty submission is reasonable in all of the circumstances.

29. Having reviewed the record of proceedings, the Decision and Reasons dated April 18, 2013 and the Decision and Reasons on Penalty dated September 13, 2013 as well as the submissions of the parties, the Panel is satisfied that the Hearing Officer considered and weighed the appropriate sentencing factors, arrived at his conclusion on the “alternative penalty” in a transparent, logical and justifiable manner, and the proposed penalty disposition is reasonable and falls within the range of penalties which is acceptable and defensible in law.

30. While the issue was not raised by either of the parties to this appeal in their Factums or submissions, the panel is concerned with the reasoning of the Hearing Officer in his “Interim Ruling on Procedure for Sentencing Hearing”.

31. In the opinion of this Panel, such interim ruling, which was made after the Hearing Officer’s consideration of the statutory provision Section 25 (1) of the SPPA, is not appropriate or correct in law. The provisions of Section 25 are mandatory and effective for all purposes, in our respectful opinion, and do “forestall” any entry into an officer’s employment record and any reference to the allegations of complaint or hearing from being made in the

officer’s employment record and does prevent the facts of the prior disciplinary hearing and any findings of guilt and penalty from being considered in any sentencing decision in a subsequent Part V hearing.

32. In our view, the procedure that was followed was unfair to the Appellant and any entries in his employment record should not have been made until the final disposition of the prior appeal. However, the fact that neither party has raised the issue related to that ruling on this appeal, the matter is now moot.

33. Therefore, the appeal is allowed and the penalty decision is hereby varied to forfeiture of 24 hours [3 days] time off to be scheduled at the discretion of Const. Power’s Unit Commander. Const. Power is required to write a letter of apology forthwith to the Chief of Police of the St. Thomas Police Service relating to Const. Power’s conduct on June

17, 2012. A copy of such letter is to be delivered to the

Chief of the London Police Service.

DATED AT TORONTO, THIS 16TH DAY OF JULY, 2014

Roy B. Conacher, Q.C. Jeffrey D. King, Q.C.

Vice-Chair, OCPC Member, OCPC