Mulholland v. Peel Regional Police Service, 2014 CanLII 100628

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 8

CONSTABLE LANCE MULHOLLAND APPELLANT (MOVING PARTY)

and

PEEL REGIONAL POLICE SERVICE RESPONDENT (RESPONDING PARTY)

RULING ON MOTION

Panel: Jacqueline Castel, Member Zahra Dhanani, Member

Hearing Date: May 8, 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 Moving Party Joel Dubois, Counsel for the Responding Party

Application of Law

The Panel notes that some of the dates giving rise to the Notices of Hearing in this case were before October 19, 2009 and some after. In either case, the wording of the sections of the Police Services Act, R.S.O. 1990, c. P.15 (the “Act”) applicable to motions for permission to adduce new or additional evidence are identical – section70(5) for an event that occurred before October 19, 2009, and s. 87(5) for an event that occurred on or after October 19, 2009. It is therefore irrelevant which section applies to this Ruling on the Motion.

Introduction

1. Constable Lance Mulholland (the “Appellant” or “Const. Mulholland”) 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 of each of deceit, insubordination, and discreditable conduct.

2. The Hearing Officer imposed the penalty of:

a) demotion to 4th class constable for six months;

b) after which point he would be elevated to 3rd class constable for six months;

c) after which he would be elevated to the rank of second class constable for one year; and

d) there were other conditions imposed for the period of the demotion including requirements for further counselling.

3. The Appellant brings a Motion for an order that the Commission receive new or additional evidence on this appeal.

4. The proposed new or additional evidence is:

a) a letter from Dr. William R. Jacyk (“Dr. Jacyk”) to the Disability Management Supervisor of the Peel Regional Police Service (the “Service”), dated September 9, 2013, concerning the Appellant’s prognosis; and

b) internal correspondence from Sergeant Thomas Warfield to Sergeant Christopher Sajben dated April 15, 2014, nominating the Appellant for the Peel Regional Police Officer of the Month Award; a series of emails dated April 16, 2014 to and from Sergeant Thomas Warfield, Sergeant Sajben, Acting Staff Sergeant Hubert Hiltz, Inspector Anthony Roselli and Superintendent Kimberly Whyte indicating support for the Appellant’s nomination; and an email from Inspector Roselli to Sergeant Vernon Reynolds dated April 16, 2014 indicating that the Appellant’s nomination has the full support of himself and the officer in charge of 21 Division, Superintendent Whyte (“Internal Correspondence and Emails”).

5. The Responding Party is opposing the Motion on the ground that the evidence does not meet the test set out in R. v. Palmer, 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 (SCC) for admitting new or additional evidence on appeal.

Decision

6. The Appellant’s Motion is denied for the reasons which follow.

Preliminary Matters

7. Mr. Black filed a Supplementary Motion Record on May 2, 2014 (five days before the Motion was heard), adding the Internal Correspondence and Emails, to the proposed new or additional evidence.

8. Rule 10.3 (f) of the Commission’s Rules of Practice provides that a party bringing a motion must file all materials it intends to rely on at least fourteen days before the motion.

9. Mr. Dubois indicated that he has had an opportunity to review the Supplementary Motion Record and is prepared to address its content in oral submissions, notwithstanding that he has not had an opportunity to file a supplementary factum.

10. Given Mr. Dubois’ consent, the Panel agreed to consider the Supplementary Motion Record and hear oral submissions on the merits of the Motion.

Background

11. At the penalty hearing on May 2, 2013, Const. Mulholland submitted a document entitled “Medical History of Constable Lance Mulholland”, which included medical documents between 2005 and 2012. The documents indicated that he had been diagnosed with alcohol dependence and Post-Traumatic Stress Disorder (“PTSD”), and had also received treatment for both.

12. The medical documents included:

a) Discharge Summary from Homewood Health Centre (Substance Abuse and Trauma Safety Program) dated July 20, 2010 and authored by Dr. Jacyk. The Appellant was diagnosed as having alcohol dependence and PTSD. His prognosis was: “Guarded – requires further treatment but also needs a period of sobriety.”

b) Discharge Summary from Homewood Health Centre (Substance Abuse and Trauma Safety Program) dated December 6, 2010 and authored by Dr. Jacyk. The Appellant was diagnosed as having alcohol dependence and PTSD. His prognosis was: “Guarded – still has not accepted the significance of his alcohol dependence and the need for an active recovery program.”

c) Discharge Summary from LaPaloma Treatment Centre (“LaPaloma”) dated March 11, 2012 and authored by Dr. Robert Murray. The “Continuing Care Recommendation” was for an intensive outpatient treatment program and individual therapy with a therapist proficient in cognitive behavior therapy (“CBT”). The Discharge Summary indicated that Const. Mulholland’s prognosis was good.

d) Letter from Dr. Mardi Smith, Clinical Director of LaPaloma, dated July 12, 2012, which indicated that after completing a Residential Treatment Program from 1/20/2012 to 3/11/2012, “Lance’s symptoms had subsided and he no longer met criteria for Post-Traumatic Stress Disorder diagnosis”. In the addendum to this letter (requested by Const. Mulholland’s legal representative) dated August 20, 2012, Dr. Smith stated:

“When Lance completed treatment at LaPaloma Treatment Centre, he had been abstinent from alcohol for over 40 days and his symptoms of PTSD had remitted to the point where he no longer met diagnostic criteria for PTSD. Due to treatment of both disorders, life-long recovery is attainable. However, it is advisable to continue to monitor for relapse in both disorders, i.e. random drug screens and mental health screenings, to monitor for continued remission, and or relapse of symptoms.”

13. Const. Mulholland testified at the penalty hearing on May 2, 2013 that his abuse of alcohol was directly linked to his PTSD diagnosis. He also testified that his “injury” was the cause of his misconduct and that it was “beyond his control”.

14. Further, Const. Mulholland testified that his PTSD had been cured and that he did not consider himself to be an alcoholic or feel the need for on-going counseling.

15. On July 29, 2013, the Hearing Officer imposed a penalty on Const. Mulholland which included the following condition:

“In accordance with the recommendations of Drs. Murray and LaPaloma, Constable Mulholland will at the earliest opportunity, and in any event within six (6) months of this Order commence an “intensive outpatient treatment program” and with the assistance of the Peel Regional Police Organizational Wellness Bureau, make reasonable efforts to locate an appropriate Therapist and undergo “individual therapy with a CBT proficient therapist” (Cognitive Behavioural Therapy). The particulars of such therapy shall be confirmed to Peel Regional Police Human Resources Department by a qualified medical practitioner.”

16. In accordance with the penalty imposed by the Hearing Officer, the Appellant met with Dr. Jacyk on August 26 and 27, 2013 and Dr. Jacyk forwarded a letter outlining the Appellant’s prognosis to the Service on September 9, 2013. In the letter Dr. Jacyk stated that Const. Mulholland’s “Traumatic Stress Disorder and Substance Use Disorder are in full remission”. The letter also stated that Const. Mulholland has been provided with a Cognitive Behaviour Workbook entitled “Life After Trauma” and that Dr. Jacyk will assign modules to the Appellant and review them with him on a monthly basis.

Applicant’s Submissions

17. Mr. Black submitted that subsection 87(5) of the Act enables the Commission to receive new or additional evidence “as it considers just”. He submitted that the Commission normally applies the test set out in R v. Palmer, supra, for determining when it is “just” to receive new evidence on appeal, but the Commission has recognized that subsection87(5) authorizes it to admit new evidence on appeal even when the Palmer test is not satisfied. He relied on Provincial Constable I.Q. Aujla and Ontario Provincial Police (October 7, 1996, OCCPS) to support this submission.

18. However, he submitted that all four branches of the Palmer test are met in relation to the two pieces of evidence he is asking the Commission to receive as new or additional evidence on this appeal.

19. Mr. Black submitted that Dr. Jacyk’s assessment was conducted over a two day period and his report, dated September 9, 2013, was not available at the time of the penalty hearing because he did not learn that Dr. Jacyk was proficient in CBT until after the hearing. He stated that CBT is a new specialty and it is very difficult to find a therapist proficient in CBT. Although Dr. Jacyk treated Const. Mulholland in 2010, the treatment did not involve CBT.

20. Mr. Black argued that the Appellant’s medical condition and treatment were central issues in the evidence presented at the penalty hearing. As such, he submitted that Dr. Jacyk’s letter is directly relevant to the Appellant’s appeal. He argued that the letter relates to many issues with respect to penalty including the public interest, recognition of the seriousness of the misconduct, handicap, the relevant personal circumstances, and the potential to reform or rehabilitate the Appellant.

21. Moreover, Mr. Black submitted, given that the Hearing Officer ordered that the Appellant seek ongoing counseling as part of the penalty, the Appellant’s medical prognosis was clearly a concern.

22. Mr. Black also argued that there can be no doubt as to the credibility of the evidence. Dr. Jacyk has approximately 30 years of experience as a specialist in addiction medicine and is a founder of the Canadian Society of Addiction Medicine. He also has special expertise in PTSD.

23. He submitted that since the penalty imposed by the Hearing Officer on July 29, 2013, the Appellant has been performing at an exceptional level and has demonstrated his dedication to the Peel Regional Police Service and the public through his excellent work performance. The Internal Correspondence and Emails were not created until after the conclusion of the Appellant’s hearing. As such, this evidence could not have been adduced at the hearing despite the due diligence of counsel for the Appellant.

24. Mr. Black submitted that the Internal Correspondence and Emails are directly relevant to issues raised on the appeal including the potential for rehabilitation and the imposition of too harsh a penalty, especially in light of the Appellant’s work related illness.

25. Further, Mr. Black submitted that the Internal Correspondence and Emails are highly credible and, when taken with the other evidence adduced at the hearing, could reasonably be expected to have affected the penalty decision.

26. He argued that the Commission would be without important evidence in assessing the reasonableness of the Hearing Officer’s decision should it decline to receive the proposed new or additional evidence.

Respondent’s Submissions

27. Mr. Dubois agreed that the Palmer test is the appropriate test to be applied when determining whether to admit fresh evidence under subsection 87(5) of the Act.

28. He submitted that in Acton and Durham Regional Police Service, (April 8, 2013, OCPC), the Commission recognized that all four branches of the Palmer test must be met. Similarly, in Mauro and Thunder Bay Police Service, (January 24, 2013, OCPC) at paragraph 27, the Commission held that where the first part of the Palmer test has not been met, the other branches of the test become moot.

29. Mr. Dubois argued that the report of Dr. Jacyk does not meet the first and fourth branches of the Palmer test.

30. He submitted that where the factual information underlying the proposed new evidence was available to the Appellant before the hearing, the first branch of the Palmer test will not be met. He relied on Mauro, supra, Clarke and Peel Regional Police (June 24, 2007, OCCPS) and Williams and Ontario Provincial Police, (June 5, 1995, OCCPS) in support of this argument.

31. Mr. Dubois submitted that the letter of Dr. Jacyk dated September 9, 2013 addresses Const. Mulholland’s recovery from PTSD and Substance Use Disorder, as well as fitness to be a police officer. These topics were discussed at length by Const. Mulholland in his own testimony.

32. He argued that Const. Mulholland could have adduced additional confirmatory medical evidence at the hearing or called viva voce medical evidence. Const. Mulholland was familiar with Dr. Jacyk at the time of his penalty hearing and could have obtained his medical opinion.

33. Mr. Dubois also submitted that the proposed new evidence of Dr. Jacyk would not have an impact on the penalty ordered. Const. Mulholland presented evidence that when he left LaPaloma, his symptoms had subsided and he no longer met the criteria for PTSD. The proposed new or additional evidence provided by Dr. Jacyk reiterates the prognosis set out in the medical evidence that was provided to the Hearing Officer.

34. He also argued that Dr. Jacyk’s September 9, 2013 letter does not address the real concern of the Hearing Officer, namely Const. Mulholland’s repeated statements about his lack of choice in engaging in the misconduct in question. As such, he argued that Dr. Jacyk’s September 9, 2013 letter would have had no impact on the penalty imposed by the Hearing Officer.

35. Mr. Dubois rejected the Appellant’s argument that the proposed new evidence should be received because he was ordered to attend counseling by the Hearing Officer. He argued that the issue of when counseling should end was addressed by the Hearing Officer – i.e., once written confirmation is received by the Service and Const Mulholland that counseling is no longer required.

36. Mr. Dubois also submitted that Dr. Jacyk’s letter dated September 9, 2013 stated that Const. Mulholland has been provided with a Cognitive Behaviour Workbook and that the modules will be reviewed by a therapist (i.e., Dr. Jacyk) on a monthly basis. Mr. Dubois argued that given the on-going therapy Dr. Jacyk recommended, the letter would not have changed the disposition.

37. Mr. Dubois submitted that the Internal Correspondence and Emails do not meet the second and fourth branches of the Palmer test.

38. He argued that Provincial Constable I.Q. Aujla and Ontario Provincial Police, supra, can be distinguished from the present case because in that case the Appellant was dismissed.

39. He submitted that because the present case involves a demotion, post-disposition work performance is not relevant. He relied on Constable Alan Drennan and Hamilton-Wentworth Regional Police Service (January 8, 1996, OCCPS) to support this submission.

Reply Submissions

40. Mr. Black submitted that even if Dr. Jacyk’s September 9, 2013 letter confirms the medical evidence provided at the hearing, as well as Const. Mulholland’s testimony, he should not be limited to one medical opinion. Further, he submitted that Dr. Jacyk’s letter is more current.

41. Mr. Black urged the Panel to consider whether it would be “just” to admit Dr. Jacyk’s letter in light of the fact that the letter was ordered by the Hearing Officer.

42. Mr. Black submitted that the penalty decision makes it sound like Const. Mulholland’s duties, as a result of an accommodation plan, simply involved clerical duties and answering the phone, but the Internal Correspondence and Emails make clear he is doing far more. He argued that it would be a real injustice to deny the Commission the opportunity to see the Internal Correspondence and Emails on appeal.

43. The Panel asked Mr. Black to clarify what evidence he was relying on to back up his statements that CBT is a new specialty and that it is very difficult to find a medical professional proficient in CBT. The Panel also asked Mr. Black to clarify his efforts in obtaining an additional medical assessment from Dr. Jacyk or someone else, at the time of the disposition hearing. Mr. Black stated that he had asked Dr. Mardi Smith to attend the hearing but she was no longer at LaPaloma and could not be compelled to attend. He reiterated that he did not know that Dr. Jacyk was proficient in CBT until after the hearing.

44. Mr. Black asked for an adjournment to produce more information supporting his submissions on CBT being a new specialty and on the difficulties of finding medical professionals proficient in CBT in Ontario. The adjournment request was denied on the ground that the parties had plenty of time to prepare for the Motion. In addition, at the time of the request, the Panel had already heard his submissions, the response and his reply, and were simply giving him an opportunity to clarify a submission, in light of the due diligence requirement under the first branch of the Palmer test, if he was able to do so.

45. Mr. Black also asked for permission to allow his client to address the Panel’s questions on CBT. The Panel denied this request as it does not take viva voce evidence from Appellants at motions for leave to provide new or additional evidence for the appeal.

Reasons

46. Subsection 87(5) of the Act provides:

“A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.”

47. The leading case on whether or not to admit new or additional evidence on appeal is R v. Palmer, supra. In this case, the Supreme Court of Canada set out a four part test which must be met before new or additional evidence is to be admitted. The four part test is as follows:

a) The evidence should generally not be admitted if by due diligence, it could have been adduced at trial, although this principle will not be applied with the same strictness in criminal trials as it would be in a civil trial;

b) The evidence must be relevant in that it bears upon a decisive or potentially decisive issue;

c) The evidence must be credible; and

d) The evidence must be such that if believed, it could, when taken with the other evidence adduced at trial, reasonably be expected to have affected the result.

48. The Commission has adopted this test when interpreting subsection87(5): Acton, supra, and Mauro and Thunder Bay Police Service, supra.

Dr. Jacyk’s Letter dated September 9, 2013

49. We agree with the Responding Party that the new medical evidence the Appellant is seeking to introduce could have been called at the disposition hearing and, therefore, it does not meet the first branch of the Palmer test.

50. Mr. Black argued that Const. Mulholland’s medical condition and treatment were central issues in the evidence presented at the disposition hearing. Const. Mulholland testified that his PTSD was cured and that he no longer considered himself to be an alcoholic. He also submitted medical documents, including a letter from Dr. Mardi Smith of LaPaloma which stated that Const. Mulholland no longer meets the criteria of PTSD and has been successful in resolving his alcohol dependence.

51. We find that Const. Mulholland could have obtained medical evidence from Dr. Jacyk, or another medical professional, before the hearing and introduced it at the hearing to confirm his own testimony and the opinion of Dr. Smith. Alternatively, Const. Mulholland could have called Dr. Jacyk to testify at the hearing. He had received treatment from Dr. Jacyk while a patient of Homewood Health Centre (Substance Abuse and Trauma Safety Program) in 2010. In fact, Dr. Jayck diagnosed him with PTSD and alcohol dependence. As such, Dr. Jacyk was known to him at the time of the hearing. We are not convinced that Const. Mulholland made diligent efforts to adduce additional confirmatory medical evidence from medical professionals.

52. Mr. Black emphasized that CBT is a new specialty and that it is difficult to find a medical professional or therapist proficient in CBT. Mr. Black provided no evidence in support of these assertions. In fact, he provided no evidence of due diligence efforts to find an appropriate medical professional to conduct another assessment of the Appellant that could have been introduced at the hearing.

53. Mr. Black also emphasized that the Appellant was not aware that Dr. Jacyk had expertise in CBT until after the penalty hearing. All the Appellant had to do was ask Dr. Jacyk if he had expertise in CBT. We do not consider simply posing a question to a psychiatrist who had diagnosed him with PTSD and alcohol dependence to be an unreasonable level of due diligence.

54. Moreover, we find that Mr. Black placed too much importance on obtaining a medical assessment from a therapist with CBT expertise. Proficiency in CBT was only relevant, in terms of the on-going treatment the Hearing Officer ordered. It was not necessary for the medical professional to be proficient in CBT to diagnose the Appellant or to confirm whether the Appellant’s PTSD and alcohol addiction was in remission or had been cured.

55. It would not be just to allow Const. Mulholland to adduce on appeal the proposed additional medical evidence which he elected not to obtain before the penalty hearing. This would give Const. Mulholland the opportunity to hold a re-hearing of the issues pertaining to penalty.

56. Given that the first branch of the four part Palmer test has not been satisfied, the other three branches of the test are moot: – see Mauro and Thunder Bay Police Service, supra.

Internal Correspondence and Emails

57. The facts of the Provincial Constable I.Q. Aujla and Ontario Provincial Police, supra, where letters of character evidence were admitted on appeal even though the Palmer test was not satisfied, are distinguishable. The Commission emphasized the seriousness of the penalty – dismissal – in admitting the letters of character reference. Importantly, however, even though the evidence was admitted, the Commission ultimately upheld the Hearing Officer’s decision to dismiss the Appellant.

58. In the present case, the Hearing Officer recognized the potential for rehabilitation and, therefore, chose to demote rather than dismiss the Appellant. This negates the need for or relevance of post-disposition performance records or information: – see Constable Alan Drennan and Hamilton-Wentworth Regional Police Service, supra.

59. Given that all four branches of the Palmer test must be met before new or additional evidence may be admitted on appeal, the Appellant has failed to satisfy the requirement for admitting the Internal Correspondence and Emails.

60. For all of the above reasons, the Appellant’s Motion is denied.

DATED AT TORONTO, THIS 3RD DAY OF JUNE, 2014

Jacqueline Castel Member, OCPC

Zahra Dhanani Member, OCPC