Ontario Civilian Police Commission
OCPC # 14-07
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
PROVINCIAL CONSTABLE C.J. (CARMEN) BRESSETTE APPELLANT
-and-
ONTARIO PROVINCIAL POLICE RESPONDENT
DECISION
Panel: Roy Conacher Q.C., Vice Chair Jeffrey L.D. King Q.C., Member
Hearing Date: October 25, 2013
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:
James A. Girvin, Counsel for the Appellant
Christopher Diana, Counsel for the Respondent
Introduction
On January 10, 2012 Constable C.J. (Carmen) Bressette (the “Appellant” or “Const. Bressette”), a police officer with the Ontario Provincial Police (the “OPP”), was charged with one count of Discreditable Conduct contrary to s. 2 (1)(a)(xi) of the Code of Conduct (the “Code”) set out as a schedule to 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”).
On October 10, 2012, Const. Bressette pled guilty to the charge. An Agreed Statement of Facts (the “Statement”) was read into the record. After hearing submissions related to the facts, a finding of guilty was rendered by A/Superintendent Stuart McDonald (the “Hearing Officer”).
On January 18, 2013, submissions on penalty were made by the parties. On February 28, 2013, the Hearing Officer issued a decision imposing a penalty upon Const. Bressette of demotion from First Class Constable to Second Class Constable for a period of 16 months effective immediately pursuant to s. 85 (1)(c) of the Act. Upon completion of that time period, the Appellant is to be reinstated to First Class Constable.
Const. Bressette appeals the penalty requesting that instead it be varied to one of demotion for a period of six to 12 months.
Decision
- For the reasons set out herein, the appeal is dismissed.
Background
The particulars of allegations set out in the Notice of Hearing are described in the agreed Statement. It provides that on October 11, 2011, Const. Bressette was off duty and working at his residence. The Appellant acknowledged that while working at his residence, he consumed several beer. He then left his residence in his personal vehicle to attend the Home Depot in Sarnia for some supplies. He had ongoing sleeping problems for which he had been prescribed sleeping pills. The Appellant acknowledged that there is a caution on the prescription that the sleeping pills should not be taken with alcohol. While at the Home Depot he took a sleeping pill. It was Const. Bressette’s experience that these pills normally took quite a while to “kick in”.
The Appellant’s evidence is that from this point forward he had no recollection of events until he met with Provincial Const. Horwood at the Lambton OPP for the purpose of undergoing a breathalyzer analysis. He advised that he had never had this reaction to his prescription medication before this incident or after.
The Appellant was unable to answer any questions regarding his driving, or the subsequent accident and arrest. He had no recollection of these events. Const. Bressette believed that this was due to the effects of the sleeping pills.
The Appellant was driving his vehicle on Ontario St. in Sarnia following a vehicle driven by a civilian, G. M.*, who described the Appellant as tailgating him as though he wanted to pass. G.M. stated that when he came to a stop at the lights at the intersection of Ontario St. and Confederation Rd. his car was rear-ended by Const. Bressette.
- Name anonymized
G.M. stated that after the accident he got out of his vehicle to speak with the driver. The Appellant was seated in his vehicle and the window was open. G.M. asked Const. Bressette if he was aware that he had rear-ended him. Const. Bressette did not respond. G.M. asked a second time, and at this time the Appellant stated “I heard you.”
G.M. returned to his car and called 911 to report the accident. He described Const. Bressette as reversing before pulling around his car and driving away from the scene of the accident. G.M. followed Const. Bressette and relayed to the police dispatch the location and licence plate number of the Appellant’s vehicle.
Const. Jeff Rovers of the Sarnia Police Service was dispatched to the call. He made contact with the Appellant and began to follow him, during which time he observed “driving that is consistent with impairment.” Const. Rovers pulled the Appellant over and immediately recognized Const. Bressette as a member of the OPP.
There is no evidence that in his dealings with Const. Rovers the Appellant attempted to use his position as a police officer in order to gain any advantage for himself.
Const. Rovers described Const. Bressette’s driving and demeanour as being consistent with being impaired by the consumption of alcohol. As a result, he placed him under arrest for impaired driving, read Const. Bressette his rights to counsel and made a breath demand.
Const. Rovers transported the Appellant to the Lambton OPP office for a breath test. Once there, Const. Kent Horwood, the breath technician, encountered a substantial delay in preparing the Intoxilyzer for the test.
Eventually, Const. Horwood obtained two breath samples from the Appellant which registered 75 and 74 mgs of alcohol in 100 ml of blood. These samples were obtained after the expiry of the required two hour time limit due to the delay related to the preparation of the Intoxilyzer. While completing the Alcohol Influence Report, Const. Horwood noted that Provincial Const. Bressette was coherent.
As a result of the Sarnia police investigation Const. Bressette was charged with “Start from Stopped Position Not in Safety contrary to Sec. 142 (2)” and with “Fail to Remain contrary to Sec. 200 (1) (a)”, both pursuant to the Highway Traffic Act, R.S.O 1990, c. H.8. Const. Bressette pleaded guilty to Fail to Remain on March 30, 2012 and was fined $700 plus the standard victim surcharge. The other charge was withdrawn.
During Const. Bressette’s interview with the OPP’s Professional Standards Bureau (“PSB”) he was polite and cooperative; however, he was unable to provide any further information because, he stated, he suffered memory loss.
Appellant’s Submissions
Mr. Girvin submitted that the penalty imposed in this case was harsh and excessive and not consistent with similar cases.
While acknowledging that there is no dispute in relation to the facts as contained in the Statement, and that the Commission ought not to intervene and vary a decision of a Hearing Officer except where there is an error in principle, or relevant facts have been ignored, or the conclusions reached are unreasonable, Mr. Girvin submitted that an analysis of the Hearing Officer’s penalty decision discloses a number of errors in principle.
The Hearing Officer made the statement that impaired driving remains one of the leading criminal causes of death in Canada. However, no evidence was presented to substantiate that statement. Mr. Girvin submitted that the Hearing Officer became focused on impaired driving and appeared to ignore the facts that the Appellant was not charged with impaired driving, that his blood/alcohol readings were low and that no evidence was presented concerning alcohol absorption rates. Mr. Girvin argued that these facts should have been considered as mitigating.
Mr. Girvin argued that the Hearing Officer also ignored the facts that the Appellant was off-duty and driving his personal vehicle when the accident occurred. Mr. Girvin submitted that these facts should also have been viewed as mitigating when determining penalty. While acknowledging that off-duty conduct can be subject to scrutiny, he argued that on-duty transgressions are more serious.
The Appellant submitted that misconduct committed on-duty and particularly misconduct resulting in criminal sanctions, can have an adverse impact on the operations of the police force and constitute aggravating factors warranting an increased penalty. Mr. Girvin argued that these are not the circumstances in this case.
In considering the Appellant’s employment history, Mr. Girvin submitted that the Hearing Officer erred by placing too much emphasis on the three prior informal disciplinary matters and treating them as aggravating factors when there was no evidence that they were similar to this case (particularly the absence of the misuse of alcohol).
It was submitted that in taking into consideration the principle of progressive discipline, the Appellant’s prior misconduct should not have been applied as an aggravating factor.
In his factum, Mr. Girvin submitted that the Hearing Officer did not properly consider the Appellant’s mitigating factors, which included the medical treatment he had been undergoing for stress and anxiety, the breakdown in his personal relationship, his past experience in the taking of the prescribed medication and his financial obligations. He also argued that the Hearing Officer’s statement that Const. Bressette “will still have the ability to supplement his income through other means” was unsupported by any evidence.
Mr. Girvin argued while thirteen cases were submitted to the Hearing Officer by both parties on the issue of penalty, the Hearing Officer focused on one case only, OPP v. Minhas, (April 1, 2011, O.P.P.D.H.) to the exclusion of all others. He submitted that this was unfair and an error.
Mr. Girvin submitted that many of the cases cited involved factual circumstances which had more aggravating factors than this case, yet those officers received lighter penalties. In these cases, some officers were found to be impaired while driving a police vehicle, some had high blood/alcohol readings and some received criminal convictions for impaired driving: see – OPP v. Brack (June 8, 2006, O.P.P.D.H.); OPP v. Brack (June 18, 2012, O.P.P.D.H.); Devine v. OPP (November 26, 2008, OCCPS); OPP v. Rai (February 21, 2011, O.P.P.D.H.); and Schlarbaum and Chatham-Kent Police Service (March 22, 2013, OCPC).
Mr. Girvin argued that the Hearing Officer failed to balance all mitigating and aggravating sentencing factors properly. He overemphasized general deterrence, resulting in inconsistency in the penalty decision in this case with the decisions in the other similar cases. He argued that as a consequence of these errors, the Commission ought to intervene and vary the penalty to one of demotion for a period of between six and 12 months: see – Carson and Pembroke Police Service (2001), 3 O.P.R. 1479; and Schofield and Metropolitan Toronto Police (1984), 2 O.P.R. 613.
Mr. Girvin stated that the Appellant was accepting responsibility for his actions by pleading guilty to the Highway Traffic Act offence and paying the fine, and that he had a 28 year policing career. Both of these factors did not appear to be given any weight by the Hearing Officer in determining penalty and this is an error.
It was submitted that all officers would know that the type of conduct committed by the Appellant was not acceptable. Therefore, there was no need to over-emphasize the need for general deterrence in the circumstances. Mr. Girvin argued that the protection of the public is adequately considered through the criminal and provincial sanctions that are available. Since the misconduct occurred while the Appellant was off-duty, there need not be consideration of public protection in determining penalty. Instead, the focus should have been on specific deterrence.
Mr. Girvin submitted that the totality of the errors committed by the Hearing Officer justify our intervention. He argues that we should allow the appeal and vary the penalty decision to one of demotion for a period of between six and 12 months.
Respondent’s Submissions
Mr. Diana pointed out that there was no issue regarding the facts of the misconduct; the issue on this appeal is solely the penalty imposed.
Mr. Diana referred us to the precedent cases to confirm the principles to be applied on a penalty appeal. Under s. 87 (8) of the Act, the Commission has the authority to confirm, vary or revoke the decision being appealed, and it may substitute its decision for that of the Hearing Officer. However, this appellate authority must be exercised in adherence with a well established standard of review.
The Commission’s role is not to second guess a hearing officer’s decision but rather to review that 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.
In certain limited cases it may be open to the Commission to reach a different conclusion from a hearing officer. However, the Commission should only intervene if there has been an error in principle or relevant sentencing factors have been ignored, or if it finds that the penalty imposed is unreasonable, or demonstrates a manifest error in principle or would amount to an injustice: see – McPhee v. Brantford Police Service, (August 3, 2012, OCPC); Burrows v. Ontario Provincial Police ( August 13, 2012, OCPC); Devine, supra; Schlarbaum, supra; and Pigeau v. Ontario Provincial Police and Taillon, (July 15, 2009, OCCPS).
Mr. Diana also pointed out in his factum that hearing officers are not legally trained and therefore the review of their decisions must not focus on mistakes that do not affect the decision as a whole nor should such review be overly critical of the language used: see – McPhee, supra.
In his argument, Mr. Diana went on to review and emphasize the salient facts as follows. The Appellant admitted driving his vehicle after consuming several beers, and taking a sleeping pill which he knew or ought to have known, by reading the label, was not to be taken in combination with alcohol. He tailgated another vehicle and caused a rear-end collision. He failed to co-operate with the other driver in exchanging information and reporting the accident. He left the scene of the accident and drove home. He was observed by another police officer to be driving erratically, was stopped and arrested for impaired driving.
He submitted to the required breathalyzer. Because of a delay in conducting the test, the readings of 74 and 75mlgs/100 ml of blood were obtained outside the two hour time limit; however, they were still close to the legal limit. The Appellant had no independent recollection of the accident, his arrest or any related circumstances.
Mr. Diana noted that the Appellant was subsequently charged with two Provincial offences under the Highway Traffic Act and pleaded guilty to failing to remain.
Mr. Diana submitted that the Appellant brought discredit upon the OPP because his conduct was observed by both the civilian whose vehicle he struck as well as the Sarnia police officer who investigated the accident.
Mr. Diana submitted that the Hearing Officer considered the relevant case law and applied the proper sentencing factors to reach a penalty consistent with the seriousness of the offence. He pointed out that the Appellant agreed that the Hearing Officer identified the appropriate sentencing factors set out in Williams and Ontario Provincial Police (December 4, 1995, OCCPS).
Mr. Diana argued that the fact that the Appellant was not charged with or convicted of the criminal offence of impaired driving ought not to be considered mitigating to penalty. Instead Mr. Diana argued that one must examine all of the surrounding factual circumstances. In this case, the lack of a criminal conviction was only one of many facts to be considered: see – Schlarbaum, supra.
Mr. Diana refuted the Appellant’s assertion that the Hearing Officer treated the matter as if the Appellant had been convicted of a criminal offence. He pointed to the Hearing Officer’s statement that Const. Bressette faced no criminal charges. The Hearing Officer clearly did not accept the Appellant’s argument that the absence of a criminal conviction should be seen as a mitigating factor: see – Decision, page 13.
Mr. Diana submitted that different legal requirements apply in establishing criminal responsibility as opposed to a disciplinary offence. Further, there must be consideration of the totality of the evidence in determining whether there has been misconduct in employment and, if so, the appropriate penalty to be applied.
Mr. Diana argued that the Hearing Officer’s references to impaired driving are not a flawed analysis but are consistent with the evidence contained in the Statement. The Appellant was impaired during his operation of his vehicle. The fact that he was not charged or convicted of a criminal offence does not mean he was not impaired nor that the circumstances should be considered less serious.
In response to the Appellant’s submission, Mr. Diana disputed the Appellant’s argument that the Hearing Officer failed to give effect to the fact that the misconduct occurred off-duty. He referred to OPP policies and prior memoranda issued by several Commissioners that clearly set out the expectation that members of the OPP who conduct themselves in a manner that brings discredit upon the force and, specifically, who drink and drive, shall be subject to serious penalties up to and including dismissal.
Mr. Diana asserted that the Appellant’s conduct fell well below that expected of members, and the fact that this conduct occurred while off-duty was not to be considered a mitigating factor. If the conduct had taken place while on duty, the Hearing Officer would have been justified in imposing a much higher penalty than demotion for 16 months: see – Ontario Provincial Police v. Duignan, (May 25, 2010, O.P.P.D.H.).
Mr. Diana also took issue with the Appellant’s submission that the Hearing Officer did not properly weigh Const. Bressette’s employment history. The past incidents of discipline were reviewed. The Hearing Officer was aware of the most serious offences involving discharge of firearms and misuse of alcohol and but excluded them because of the significant passage of time. The Hearing Officer appropriately considered the three more recent incidents of misconduct resulting in informal discipline as an aggravating factor.
Mr. Diana submitted that the history of previous discipline indicated that the Appellant clearly had behavioural problems.
Contrary to the position of the Appellant, Mr. Diana argued that both general as well as specific deterrence should always be considered in determining penalty. He pointed to the OPP memoranda issued by the Commissioners as setting the expected standard of conduct by members and he submitted that general deterrence was rightly emphasized by the Hearing Officer, particularly in cases like this one. That such serious misbehaviour is not acceptable must be brought to the attention of all members and the public through a substantial penalty.
Mr. Diana argued that the Respondent’s position is that protection of the public from this type of conduct by officers, both on and off-duty, is extremely important in order to inspire public confidence in policing. Accordingly, the Hearing Officer did not err in finding the Appellant’s behaviour serious.
Mr. Diana dealt with the issue of consistency in penalty for driving while impaired by stating that the range of penalties varies depending upon the factual circumstances. Demotion is generally found to be an appropriate sanction, and ranges from six to 24 months. He reviewed the mitigating and aggravating factors in the previous cases and compared them to the present case. While this case is not at the extreme end, he submitted that 16 months is within the range and is reasonable: see – Ontario Provincial Police v. Dejong (March 31, 2008, O.P.P.D.H.); Ontario Provincial Police v. Minhas, supra; and Ontario Provincial Police v. Paul, (May 14, 2009, O.P.P.D.H.).
Mr. Diana pointed out that the Appellant had three disciplinary proceedings in the two years leading up to the events in this case. Apparently the previous discipline did not deter further misconduct, and therefore the Hearing Officer was entitled to consider specific deterrence as a factor to be weighed.
Mr. Diana submitted that the Hearing Officer correctly reviewed and weighed all of the sentencing factors in Williams, supra, and did not commit any errors either in accepting the facts as set out in the Statement or in applying the appropriate sentencing principles to those facts in a reasonable, transparent, intelligible and logical manner.
Mr. Diana submitted that the appeal should be dismissed.
Decision
This is an appeal on the record and the principles of appellate review are well established.
The standard of review with respect to factual findings is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9.
The Supreme Court of Canada described the reasonableness standard as being 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: see – Dunsmuir, supra, at p. 47; and Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
The role of the Commission 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: see – Precious and Hamilton Police (2002), 3 O.P.R. 1561 (OCCPS); and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div. Ct.).
It may be open to the Commission, 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: see – Williams and Ontario Provincial Police (1995) 2 O.P.R. 1047 (OCCPS); 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).
Deference must be accorded to a hearing officer’s findings unless an examination of the record shows that the conclusions reached cannot reasonably be supported by the evidence: see – Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont 1583 (Div. Ct.).
A hearing officer’s reasons should be read as a whole and not be subject to microscopic examination see – Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] 1 S.C.R. 247. In addition, on an appeal, the Commission must be mindful of the fact that the hearing officer may not be legally trained and must not focus on mistakes that do not affect the decision as a whole: see – McPhee v. Brantford Police Service, (August 3, 2012, OCPC);and Burrows v. Ontario Provincial Police, (August 13, 2012, OCPC).
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: see – Carson and Pembroke Police Service (2001) 3 O.P.R. 1479.
The issues on this penalty appeal are:
(a) Did the Hearing Officer fairly and impartially apply the principles and consider all appropriate and relevant sentencing factors in imposing the penalty?
(b) Were there such manifest errors committed by Hearing Officer in his weighing of the sentencing factors requiring the intervention of the Commission?
(c) Were the Hearing Officer’s findings reasonable?
(d) Was the penalty imposed harsh and excessive and unjust in the circumstances?
(e) Were the reasons for decision expressed in an intelligible, transparent and logical manner?
From our review of the record on this Appeal, we find that the Hearing Officer’s factual findings are consistent with the Statement and are reasonable. We also find that his decision on penalty, when read as a whole, is justifiable, transparent, intelligible and is expressed in a logical manner.
It is the Appellant’s position that the Hearing Officer made a variety of errors, including, conflating the criminal law and administrative law, considered facts and allegations not presented in evidence, gave insufficient or no weight to mitigating factors and rendered a decision inconsistent with existing case law.
The Hearing Officer stated at page 13 of his decision:
“The public has a clear expectation that no one should operate a vehicle after consuming alcohol and drugs to a level of impairment as demonstrated by the various laws and controls put in place to combat this behaviour. Impaired driving remains one of the leading criminal causes of death in Canada”.
We do not accept the Appellant’s contention that the above statement indicates the Hearing Officer’s inappropriate focus on the criminal aspect of the charge against the Appellant. The Hearing Officer is entitled to rely on his personal knowledge and professional experience in considering information that is widely available and well known to the public. The evidence before the Hearing Officer as contained in the Statement clearly establishes that Const. Bressette was impaired when operating his vehicle on the date of the occurrence.
The Hearing Officer recognized that the breathalyzer readings obtained from the Appellant were below the legal limit. In comparing the factual circumstances of the Appellant’s case to that of Minhas, supra, he observed that “both officers were observed driving erratically by the arresting officer. Both officers had similar breath readings near or at the legal limit resulting in no impaired driving charges. [pg.15] (emphasis added).
Although there was no evidence presented concerning alcohol absorption rates, in our opinion, taking into account the facts of the delay in the taking of the breathalyzer readings, the Hearing Officer was entitled to consider the readings to be corroboration of the impairment, as opposed to a mitigating factor as urged by the Appellant.
We cannot agree with the Appellant’s argument that the Hearing Officer mistakenly focussed on the criminal aspect of the Appellant’s behaviour and did not properly weigh the fact that Const. Bressette was charged with two offences under the Highway Traffic Act as opposed to a Criminal Code charge. At page 13 of his decision, the Hearing Officer stated:
“There were no criminal charges against Provincial Constable Bressette”.
Again, at page 15 of his decision, the Hearing Officer indicated:
“There was not a dangerous driving charge but there was a collision and a fail to remain charge under the Highway Traffic Act in the matter involving Provincial Constable Bressette”.
Clearly, the Hearing Officer understood this factual distinction. As the Commission has stated previously, the absence of a criminal charge or conviction does not necessarily mitigate the seriousness of misconduct. The standards of proof are different between criminal and administrative disciplinary proceedings. The factual circumstances have to be considered in context and totality in determining whether the factors are mitigating or aggravating and whether the conduct warrants a more serious penalty.
The Appellant submitted that the misconduct was committed while off-duty and, therefore, should be considered as less serious since there was not the same need to be concerned about the protection of the public nor, it is argued, would the reputation of the Service be detrimentally affected.
With respect, we cannot agree. The evidence at the discipline hearing consisted of documents filed in support of the penalty submissions made by the prosecution. These documents included a series of memoranda issued by various Commissioners to all members of the OPP from 1996 through 2009 setting out the serious consequences of impaired driving by members.
These memoranda unequivocally point out the negative impact upon the reputation of the OPP that results from inappropriate alcohol related conduct by officers and the risks to the safety of individual members and others. They also expressly state that the officers who serve the public must lead by example and the Service maintains a zero tolerance in relation to alcohol/motor vehicle related misconduct. The memoranda also contain an express warning to all officers that if a misconduct charge is laid for such misbehaviour, the OPP would be seeking demotion in rank at a minimum. Reference is made throughout these documents to Directives which provide, in essence, that the conduct of a member, both on and off duty, is scrutinized and applied to the OPP as a whole.
The misconduct of the Appellant in issue here was observed by a member of the public and by another police officer. We agree with the Respondent that, notwithstanding the misconduct occurred while off duty, the reputation of the OPP was discredited. This Service has made significant efforts to draw to the attention of the public and of its members the risks of operating a motor vehicle while impaired. To have one of their members commit such observable misconduct calls the reputation of the Service into disrepute. Based on the facts the Hearing Officer was entitled to conclude that the Appellant’s conduct fell well below the standard of conduct expected of members of the OPP. He was also entitled to find that the penalty must reassure the public that such conduct is unacceptable and will be subject a significant penalty.
We concur with the finding of the Hearing Officer that this type of misconduct is very serious.
The fact that this incident occurred within a reasonably short time after three other disciplinary offences supports the Hearing Officer’s conclusion that the Appellant’s career is going in the wrong direction, and calls into question Const. Bressette’s ability to reform or be rehabilitated. It also supports the need for specific deterrence directed to Const. Bressette and general deterrence directed to all officers that there are serious consequences for this type of behaviour. The Hearing Officer’s findings on the weight to be given to each of these penalty factors are reasonable.
The Appellant submitted that the Hearing Officer gave little or no weight to the mitigating factors arising from Const. Bressette’s personal and employment circumstances. Mr. Girvin pointed out that the Appellant was under stress and was receiving medical care for sleep deprivation, that there had been an abnormal reaction to the medication, that there was a twenty-eight year policing career with a number of commendations and awards, that there had been a guilty plea and an expression of remorse by the Appellant. Mr. Girvin emphasized that there was little evidence that the Hearing Officer gave due consideration and proper weight to these mitigating factors.
We note however, that the Hearing Officer did specifically acknowledge these mitigating factors. He referred to the Appellant’s lengthy employment history, the guilty pleas to both the Highway Traffic Act and disciplinary offences, the payment of a fine, the medical treatment medication he was receiving and the fact of the Appellant’s recent separation from his family. He also acknowledged the financial hardship that the penalty would impose. [Decision-page 13-14]
Mr. Girvin submitted that the Hearing Officer’s comment that the Appellant would still have the ability to supplement his income through other means was not supported by any evidence.
We agree that this statement has no evidentiary foundation; however, when reviewed in totality, this error does not undermine the reasons and conclusions reached on the substantive issue of the proper application of sentencing principles: see – McPhee, supra; and Burrows, supra.
The Appellant argued that the Hearing Officer failed to apply the principle of consistency in penalties for similar fact situations, emphasizing that there was only one case relied upon in assessing the length of demotion while ignoring many others with similar facts which had resulted in a shorter periods of demotion.
The cases presented to the Hearing Officer contained a range of penalties from six to 24 months demotion. The Hearing Officer stated that he had read all of the cases and found one case which he concluded was of assistance in terms of similarity of facts. The decision indicates that he considered the mitigating and aggravating factors in each one of the referenced cases submitted to him and accepted Minhas, supra, as providing the most appropriate guidance. We find nothing wrong with his analysis of the sentencing factors.
We find that the Hearing Officer properly applied the sentencing principles as set forth in Williams, supra, including carefully considering the weight to be applied to each factor, and we find no manifest error in the reasoning and conclusions set out in the decision.
We answer the issues outlined in paragraph 64 as follows: (a), (c) and (e) in the affirmative; and, (b) and (d) in the negative.
The appeal is therefore dismissed.
DATED AT TORONTO, THIS 3rd DAY OF JUNE, 2014
Roy B. Conacher Q.C. Jeffrey L.D. King Q.C.
Vice Chair, OCPC Member, OCPC