Mulholland v. Peel Regional Police Service, 2014 CanLII 100627

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Mulholland v. Peel Regional Police Service, 2014 ONCPC 19

BETWEEN:

CONSTABLE LANCE MULHOLLAND APPELLANT

-and-

PEEL REGIONAL POLICE SERVICE RESPONDENT

DECISION

Panel: Jacqueline Castel, Member Zahra Dhanani, Member

Hearing Date: October 20, 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:

Harry G. Black, Counsel for the Appellant, Constable Mulholland Lynda Bordeleau, Counsel for the Respondent, Peel Regional Police Service

INTRODUCTION

1. Constable Lance Mulholland (the “Appellant” or “Const. Mulholland”), a member of the Peel Regional Police Service (the “Respondent” or sometimes the “Service”), is appealing the penalty imposed on him by Deputy Chief Roselli (the “Hearing Officer”) on July 29, 2013 for four counts of Neglect of Duty and one count each of Deceit, Insubordination, and Discreditable Conduct, all counts being alleged under 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”). Const. Mulholland pled guilty to these charges contained in five different Notices of Hearing.

2. The Hearing Officer imposed a penalty of demotion from the rank of First Class Constable to Fourth Class Constable for a period of six months, after which Const. Mulholland would be elevated to Third Class Constable for a period of six months, then promoted to Second Class Constable for a period of one year, at the end of which he would be elevated to First Class Constable. The Hearing Officer also affixed a number of conditions to the penalty regarding Constable Mulholland’s on-going care for substance abuse and Post Traumatic Stress Disorder (“PTSD”).

3. The Appellant is seeking an order varying the penalty to forfeiture of fifteen to twenty days primarily on the ground that the penalty imposed is harsh and excessive in light of the Appellant’s PTSD, a condition that resulted from trauma he experienced as a police officer for the Respondent.

4. The issues in this appeal are:

1. Did the Hearing Officer err when considering penalty factors?
2. Did the Hearing Officer mischaracterize the evidence on the absence of choice and err in considering the willfulness of the misconduct?
3. Was the penalty harsh, excessive and a violation of the duty to accommodate?

Decision

5. The appeal is dismissed for reasons which follow.

Background

6. Const. Mulholland has been employed by the Respondent since 1989, initially as a full-time cadet and since 1991 as a police officer. In his 25 year career as a police officer he has been an active officer making many important arrests and contributions to public safety. He has also witnessed several fatalities and traumatic events. Since 1992 Const. Mulholland has experienced many mental health related issues.

7. The facts relating to Const. Mulholland’s convictions for Deceit, Insubordination, Discreditable Conduct and Neglect of Duty (4 counts), are summarized below.

Conviction for Deceit

8. Const. Mulholland was suspended from duty on May 27, 2009 and ordered to report to Peel Regional Police, 22 Division, Monday through Friday, between 9 a.m. and 12 p.m. Beginning on August 26 and for a two week period, Const. Mulholland advised his supervisor that he would not be reporting to 22 Division because he needed to be with his grandfather who had been hospitalized in Orillia for a heart condition.

9. On September 16, 2009, Const. Mulholland advised his supervisor that he needed to go to Orillia because he believed his grandfather had died. On September 17, 2009, Const. Mulholland reported to 22 Division and told his supervisors that his grandfather was on life support.

10. Const. Mulholland’s grandfather was never on life support, and Const. Mulholland did not travel to Orillia to be with his grandfather at any time between August 24 and September 17, 2009.

Conviction for Insubordination

11. On February 25, 2010, Const. Mulholland entered into a Memorandum of Agreement between himself, the Chief of the Service and the Peel Regional Police Association to facilitate his return to work pending the outcome of his disciplinary proceedings. One of the conditions of this agreement was that he would not attend work with any alcohol in his system for the remainder of his employment with the Service. Const. Mulholland agreed to random alcohol screening at management’s discretion.

12. On April 1. 2010, Const. Mulholland reported late for his shift and his supervisor detected the odour of alcohol on his breath. He administered an alcohol screening test on which Const. Mulholland registered a reading of 0.26.

Conviction for Discreditable Conduct

13. On December 25, 2010 while off-duty, Const. Mulholland was observed by two members of the public while in his vehicle, which had run off the road and was stuck in the snow. They stopped to help, called the police and told Const. Mulholland that the police were on their way. Const. Mulholland responded something to the effect of “they won’t be here for three or four hours. I know because I am from Peel Regional, I am a Peel Regional Officer.”

14. The two members of the public drove Const. Mulholland into town so that he could seek help. When he entered their car, they smelled alcohol on his breath.

15. OPP Sergeant Jeff Oakley was dispatched to the scene, where he found Const. Mulholland’s car stuck in a snow filled ditch. He described the weather conditions as satisfactory. He seized items of the Service’s clothing from the vehicle and believed them to have been strategically placed to be visible in the vehicle. He also observed both unopened and empty liquor bottles inside the vehicle. The vehicle was seized.

16. Const. Mulholland failed to cooperate with Sergeant Oakley’s investigation. He also brought discredit to the Respondent by identifying himself as a Peel Regional Police Officer after driving while under the influence of alcohol.

Conviction for Neglect of Duty

17. The four counts of neglect of duty related to failure to attend for his scheduled shift on six occasions between March 2, 2009 and March 25, 2010. On three of these occasions, his supervisor attended his residence and determined that he had been consuming alcohol and was unfit for duty.

Prior Disciplinary Record

18. At the time of the proceedings before the Hearing Officer, Const. Mulholland had one prior conviction under the Act on his record. On May 13, 2008 he was found guilty of impaired operation of a motor vehicle contrary to section 253(a) of the Criminal Code. Subsequently, he pled guilty to one count of Discreditable Conduct under the Act relating to this criminal conviction.

Const. Mulholland’s Diagnosis and Treatment for Substance Abuse Disorder and PTSD

19. Const. Mulholland attended Humber River Regional Hospital as an outpatient from January 30 to March 4, 2005 for treatment for his substance abuse.

20. After being charged with impaired driving, Const. Mulholland sought treatment for alcoholism through Bellwood Health Services in Toronto in November 2007.

21. While under discipline charges for Deceit and Neglect of Duty, Const. Mulholland attended the Homewood Health Centre Addictions Division (HADS) program from January 5, 2010 to January 26, 2010. He was diagnosed with alcohol dependence. During this time, he also regularly attended Alcoholics Anonymous.

22. Const. Mulholland re-entered Homewood Health Centre and participated in the Substance Abuse and Trauma Safety (SATS) Program, a 90 day in-patient program, from May 25, 2010 to July 20, 2010. At this time, Dr. Jacyk diagnosed Const. Mulholland with alcohol dependence and PTSD. On Dr. Jacyk’s recommendation, Const. Mulholland was readmitted in the SATS program on October 13, 2010 in which he remained until December 6, 2010. He was treated concurrently for substance abuse and PTSD.

23. Const. Mulholland attended La Paloma Treatment Centre in Memphis, Tennessee from January 1, 2012 to March 11, 2012 where he was treated with Cognitive Behaviour Therapy (“CBT”) for PTSD and substance abuse. Upon discharge, Dr. Jones completed a discharge summary which noted that Const. Mulholland had successfully met all treatment goals but should continue with treatment on an outpatient basis.

24. The Clinical Director of La Paloma, Dr. Smith, wrote a letter explaining that on completion of his therapy, Const. Mulholland’s symptoms had subsided and he no longer met criteria for PTSD. In an addendum to the letter, Dr. Smith opined that since Const. Mulholland had been successful in resolving both his alcohol dependence and PTSD, life-long recovery was attainable.

Reasons and Analysis

Standard of Review

25. The law is clear that the standard of review for a Hearing Officer’s penalty disposition is that of reasonableness. As stated in Karklins v. Toronto (City) Police Service, 2010 Carswell Ont. 567 (Div. Ct.) at para. 9:

[The Commission’s] function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him or her. We can only vary a penalty decision where there is a clear error in principle or relevant material facts are not considered. This is not something done lightly.

26. As such, the Commission is not permitted to reweigh the disposition factors to come to a conclusion on penalty which it believes is more appropriate. Unless there has been an error in principle, the Commission cannot interfere with a decision on penalty even if it might have come to a different conclusion if hearing the matter at first instance: see Groot and Peel Regional Police, (April 5, 2002, OCCPS) at p. 7, and Hassan and Peel Regional Police, (September 8, 2006, OCCPS) at p. 10.

Did the Hearing Officer Err when Considering Penalty Factors

27. There are over 15 factors that a Hearing Officer can examine when addressing penalty: see Legal Aspects of Policing by Paul Ceyssens (2012 ed.) The Hearing Officer is not expected to review all of these factors but to decipher which factors are the most relevant in achieving the appropriate remedy in the case before her or him. There is no requirement to give one factor more weight than another. A hearing officer assigns appropriate weight to the evidence and to the sentencing factors depending upon the circumstances and the factual findings.

28. Counsel for the Appellant, Mr. Black, argued that the Hearing Officer over-emphasized specific deterrence, failed to give adequate weight to the medical evidence that Const. Mulholland had been fully rehabilitated, and inappropriately dealt with prior discipline.

Specific Deterrence

29. We do not find that the Hearing Officer over-emphasized specific deterrence. The reasons for the penalty he imposed are outlined in over seven pages of the penalty decision. Only one sentence of this decision addresses specific deterrence, and it does so in conjunction with general deterrence. The sentence is found at page 10 and reads:

The disposition in this matter must meet the public expectation that it will serve to prevent recurrence and that a strong message be sent to Const. Mulholland and to others that there are considerable sanctions for those who may engage in similar misconduct.

30. Mr. Black submits that it was not appropriate to address specific deterrence in light of Const. Mulholland’s disability (substance abuse and PTSD) and his concerted efforts to overcome his disability through treatment. We do not agree.

31. The Hearing Officer correctly observed that there was no medical evidence to substantiate that Const. Mulholland’s PTSD caused his misconduct, including repeatedly lying about his absences from work, strategically placing his police uniform in his personal vehicle which he abandoned in a ditch, failing to cooperate with an OPP investigator regarding his off-duty car accident, and failing to report for duty and/or be fit for duty.

32. In the absence of medical evidence to substantiate that the disability caused the misconduct and/or prevented Const. Mulholland from deciphering between right and wrong and controlling his behaviour, it was appropriate for the Hearing Officer to consider specific deterrence, among the other dispositional factors. As noted above, however, the Hearing Officer did not put much weight or emphasis on specific deterrence.

Rehabilitation

33. We also do not agree with Mr. Black’s submission that the Hearing Officer failed to give adequate weight to the medical evidence concerning Const. Mulholland’s rehabilitation, after attending an in-patient program at La Paloma.

34. The Hearing Officer deemed Const. Mulholland’s misconduct to be very serious and, even warranting dismissal in the absence of mitigating factors. In this case, the Hearing Officer put considerable weight on the Appellant’s most recent medical diagnosis (La Paloma) and the ability to rehabilitate, which he deemed to be mitigating. At page 12 of the Decision on Penalty, he stated:

With respect to penalty however, handicap or relevant personal circumstances is a valid consideration, and is tied to the ability to reform or rehabilitate. I concur that the medical diagnosis in this case provides considerable mitigation. [Emphasis added]

35. At page 13 of the penalty decision, the Hearing Officer considered the medical evidence in detail, particularly the most recent diagnosis from La Paloma:

The medical records contained in Exhibit 5 outline treatments attended by Constable Mulholland at various institutions between 2005 and the end of 2012. The records, while sparse in detail, confirm the first diagnosis of PTSD by the Homewood Health Centre when he was admitted in May 2012. This diagnosis is confirmed by La Paloma where he was admitted on January 20th 2012. In the La Paloma Discharge Summary of March 11th 2012, the “Continuing Care Recommendation” cites an intensive outpatient treatment program, with a CBT proficient therapist. The same report indicates the prognosis for Constable Mulholland is “Good”.

The recommendations of La Paloma are echoed in the agreement tendered as Exhibit 11, which puts Constable Mulholland on notice for a second time that non-compliance with the terms of that agreement will jeopardize his employment. Despite the concerns, the Service is willing to provide an opportunity for further rehabilitation, and asks for a substantial period of demotion.

Constable Mulholland testified that presently he is attending Alcoholics Anonymous irregularly, and attended four counselling sessions in the first quarter of 2012. He has been unsuccessful in locating a counsellor proficient in Cognitive Behavioural Therapy, but no longer feels the need for it, and has followed up with his general practitioner. While the information leading to the recommendation from La Paloma is limited, in my view the measures undertaken to date do not constitute an intensive program as recommended. While the treatments he has sought in the past, the present prognosis, together with his past work history bodes well for rehabilitative prospects, the lack of intensive continuing care is of serious concern.

36. As such, the Hearing Officer recognized that the Appellant’s rehabilitative potential was favourable, based on Const. Mulholland’s most recent diagnosis. However, the Hearing Officer expressed a concern that Const. Mulholland was not following the recommendation of La Paloma for on-going outpatient treatment with a CBT proficient therapist.

37. We disagree with Mr. Black’s submission that in characterizing the misconduct as “egregious”, the Hearing Officer failed to consider the Appellant’s confirmed medical diagnosis for substance abuse and PTSD. Seriousness of misconduct and disability are two separate penalty factors. The Hearing Officer properly considered each of these penalty factors, and provided clear reasons for the weight he accorded to the seriousness of the misconduct and the Appellant’s disability and rehabilitation potential.

38. The Hearing Officer considered the misconduct to be very serious because of the nature of the misconduct and the fact that there were multiple acts of misconduct as opposed to an isolated incident. He found that in the absence of the disability and rehabilitation potential of the Appellant, to which he accorded considerable mitigation, the multiple acts of misconduct were serious enough to justify dismissal.

Prior Misconduct

39. Mr. Black argued that the Hearing Officer erred in referring to the “nexus” between the Appellant’s prior misconduct and the matter before him, and referred the Panel to the following passage at page 9 of the decision on penalty:

The officer’s previous work history is worthy of considerable weight as a mitigating factor, however the previous discipline detracts from an otherwise unblemished career. Given the totality of the circumstances of the present case however, there would seem to be a nexus between the previous misconduct and the present circumstances the officer finds himself in, and I consider the previous disciplinary record in that regard, and related to the ongoing PTSD and related substance abuse.

40. Based on the wording of the above paragraph, we find that the Hearing Officer considered the Appellant’s prior disciplinary record to be related to his PTSD and substance abuse. As such, the Hearing Officer placed less weight on the prior disciplinary record than he might otherwise have, in the absence of a disability (i.e., in this case, PTSD and substance abuse). This interpretation was beneficial to the Appellant. We find no error here.

41. We find that the Hearing Officer assessed relevant penalty factors and accorded them the appropriate weight based on the evidence before him. We find no error in his assessment of the penalty factors.

Did the Hearing Officer Mischaracterize the Evidence on the Absence of Choice and Err in Considering the Wilfulness of the Misconduct?

42. Mr. Black argued that the Hearing Officer mischaracterized the Appellant’s evidence and the medical evidence on the absence of choice and erred in considering the “wilfulness” of the Appellant’s conduct as a factor which detracted from the mitigation of the guilty plea.

43. At page 43 of the transcript of the hearing on May 2, 2013, the Appellant testified as follows at the sentencing hearing:

Without sounding like an excuse I was unfit for duty. I was unfit to participate in anything including my own personal life. It wasn’t for a wish or want – desire. It was I was unable to. I have acknowledged the – my guilt before this court. I’m not able to explain or excuse my actions or my behaviour. I understand why it occurred now. That it was beyond my control, that it was in fact an injury, not a choice. I am aware that my behaviour and my abuse of alcohol was directly linked to the PTSD… I just wanted to make it clear that it was not by choice that those were my actions.

44. We do not find that the Hearing Officer mischaracterized the above evidence or the medical evidence. The Hearing Officer correctly understood this testimony to mean that Const. Mulholland believed that his actions and behaviour were beyond his control and he had no choice with respect of them because of the PTSD. There was no medical evidence which addressed or substantiated Const. Mulholland’s testimony that he could not control his conduct because of his PTSD or that the misconduct was a result of his PTSD.

45. The Hearing Officer stated at page 13 of the Decision on Penalty:

The officer has plead guilty and admits to the facts as alleged … I take this into consideration, and credit the officer for acceptance of responsibility, however this is tempered by the testimony with respect to the absence of choice, which is unsupported by medical evidence, and the elements of wilfulness apparent with respect to several of the counts.

46. A guilty plea, in and of itself, is not always sufficient to demonstrate acceptance of responsibility: see Vaughan-Evans and Toronto Police Service, (April 2, 2008, OCCPS) and Seamons and Durham Regional Police Service, (September 28, 2006, OCCPS).

47. The word “tempered” does not mean that the Hearing Officer did not consider the guilty plea to be mitigating or take it into consideration. It means he did not give as much weight to it as he might otherwise have, in the absence of Const. Mulholland’s unsubstantiated testimony that he could not control his behaviour because of his PTSD.

48. The Hearing Officer explained, at page 12 of the decision on penalty, why he had a problem with Const. Mulholland’s assertion that the PTSD caused both his substance abuse and his misconduct and that he was powerless to control his behaviour:

While I see a nexus between his PTSD and related substance abuse and the misconduct in question, Constable Mulholland’s characterization that his alcohol consumption was directly linked to his PTSD and that he had no choice in his actions, is, in my view, highly questionable. While the underlying condition was the apparent driver, there is some volition by Constable Mulholland in the measures he took to deal with it. There is evidence of wilfulness on his part while engaging in deceit with respect to his grandfather’s condition, the “strategic placement” of police related items in his vehicle located by the Ontario Provincial Police, and in his failure to co-operate with their investigation. Other than his own testimony, Constable Mulholland has provided no confirmatory medical evidence of this aspect of his condition, and leaves me in considerable doubt.

49. In the circumstances of this case, it was reasonable for the Hearing Officer to consider Const. Mulholland’s assertion that he had no control over his actions when determining what level of mitigation to accord to the guilty plea. While we may have weighed the assertion differently, we are satisfied that there was not an error in principle, evidence was not mischaracterized and no material facts were overlooked. As such, we have no jurisdiction to intervene on this point.

Was the Penalty Harsh, Excessive and a Violation of the Duty to Accommodate?

50. Mr. Black argued that the penalty was harsh and excessive given Const. Mulholland’s disability, which was not properly diagnosed until May 2010 (Homewood Health Centre), his on-going efforts to overcome his disability through treatment, and the fact that there has been no further misconduct since Const. Mulholland attended the in-patient program at La Paloma and received effective treatment for both his PTSD and substance abuse. He also argued that the imposition of such a harsh penalty, in Const. Mulholland’s circumstances, violated the duty to accommodate.

51. We find that the penalty imposed by the Hearing Officer was within the range of reasonable outcomes, defensible in respect of the facts and law. The Hearing Officer gave clear reasons why he considered Const. Mulholland’s misconduct to be very serious, including the nature of the misconduct (especially the deceit) and the fact that there were multiple acts of misconduct, as opposed to an isolated incident of human frailty.

52. While the Hearing Officer accorded considerable mitigating weight to Const. Mulholland’s PTSD and substance abuse, these conditions could not excuse the serious and multiple acts of misconduct, particularly given that there was no medical evidence to substantiate that the PTSD and substance abuse caused the misconduct or precluded the Appellant from deciphering between right and wrong and controlling his behaviour.

53. We disagree with Mr. Black that the misconduct of the police officer in Toronto (City) Police Service v. Kelly, 2006 CanLII 14403 (ON SCDC), [2006] O.J. No. 1758 (Div. Ct.) was more serious and, therefore, the penalty Const. Mulholland receives should be less harsh a penalty than in that case. The type of penalty imposed in the two cases was similar. While the type of misconduct committed by Const. Kelly and Const. Mulholland differed, both cases involved very serious misconduct.

54. Const. Kelly’s misconduct involved drugs and an addiction to cocaine. He pled guilty to two counts of possession and received a suspended sentence under the Criminal Code. Subsequently he pled guilty to and was convicted of two counts of misconduct under the Act associated with the criminal matter. Otherwise, Const. Kelly had an exemplary performance record. He filed twenty-six letters of reference in the criminal proceeding and before the hearing officer attesting to how well he was thought of by his colleagues and to the fact that his misconduct was out of character. In addition, his drug addiction did not result in any work-related misconduct or performance issues.

55. Const. Mulholland’s misconduct did not involve Criminal Code violations or the use of drugs. However, unlike Const. Kelly, whose prior disciplinary record was unblemished, Const. Mulholland had a prior conviction (2008) under the Act which was related to a Criminal Code violation (impaired driving). We note that Const. Mulholland was suffering from PTSD and substance abuse at the time of this prior conviction. Further, the present case involved seven convictions for misconduct (not two, as in the case of Const. Kelly). Const. Mulholland’s misconduct included Deceit, driving while under the influence of alcohol, failing to cooperate with an OPP investigation, and some of the misconduct directly interfered with his duties, for instance, when he did not attend scheduled shifts and/or was unfit for duty.

56. In these circumstances, we do not find that Const. Mulholland’s misconduct warrants a lesser or substantially different penalty than the penalty imposed on Const. Kelly.

57. It is well settled that disability can offer an explanation but not an excuse for misconduct. A penalty was required in the case before us. The duty to accommodate does not require employers to pardon all misconduct, particularly when there is no medical evidence that the disability caused the misconduct. See: Hall and Ottawa Police Service, December 5, 2007 (OCCPS), aff’d 2008 CanLII 65766 (ON SCDC), 2008 Carswell Ont 7611 (Div. Ct.); leave to appeal refused April 3, 2009 (C.A.)

58. In the present case, the employer gave Const. Mulholland numerous opportunities to obtain treatment for his disability and to rehabilitate, including when he violated a Memorandum of Agreement to not report for duty with alcohol in his system. The record also reveals that numerous adjournments were granted to the Appellant during the proceedings so that he could pursue treatment.

59. The decision on penalty also gives Const. Mulholland the opportunity to return to work, subject to conditions. Given the seriousness of the multiple acts of misconduct, the demotion and conditions imposed were not unreasonable and did not violate the duty to accommodate.

60. In our view, if the acts of misconduct in this case were before a trier of fact, without any evidence of disability, termination would have been a likely outcome. We believe the Hearing Officer in this case accommodated the Appellant resulting in a fair, thoughtful and just disposition and we see no reversible error in the decision on penalty.

Conclusion

61. For the above reasons, we answer questions 1 to 3 in paragraph 4 all in the negative.

62. We find that the Hearing Officer fairly considered all of the penalty factors which were relevant in the circumstances. He provided thorough and clearly articulated reasons, and when they are considered as a whole, these reasons adequately support his decision.

63. The appeal is therefore dismissed.

DATED AT TORONTO, THIS 25TH DAY OF NOVEMBER, 2014

_ Jacqueline Castel Zahra Dhanani Member, OCPC Member, OCPC