Clough v. Peel Regional Police Service, 2014 CanLII 100636

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Clough v. Peel Regional Police Service, 2014 ONCPC 12

BETWEEN:

CONSTABLE CHRISTY CLOUGH APPELLANT

-and-

PEEL REGIONAL POLICE SERVICE RESPONDENT

DECISION

Panel: David C. Gavsie, Associate Chair Roy Conacher, Q.C., Vice-Chair Zahra Dhanani, Member

Hearing Date: July 9, 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:

Maureen Salama, Counsel for the Appellant. Joël Dubois, Counsel for the Respondent.

Introduction

1. On October 6, 2011, a Notice of Hearing (the “First Notice of Hearing”) was issued by the Respondent to Const. Christy Clough (the “Appellant” or “Const. Clough”) alleging eight counts of Breach of Confidence and three counts of Discreditable Conduct, contrary to sections 2(1)(e)(i) and 2 (1)(a)(xi), respectively, of the Code of Conduct (the “Code”) set out as a schedule to Ontario Regulation 268/10 as amended, and therefore all contrary to s. 80(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “Act”).

2. On February 11, 2013 (the “First Hearing”), Const. Clough appeared before Deputy Chief Frank Roselli (the “First Hearing Officer”) and pled guilty to four counts of Breach of Confidence and not guilty on the remaining Breach of Confidence counts and the three Discreditable Conduct counts. The First Hearing Officer in his decision dated April 2, 2013 found Const. Clough guilty of the four counts to which there was a guilty plea and also the remaining four counts of Breach of Confidence, as well as two counts of Discreditable Conduct. Const. Clough was found not guilty of the third count of Discreditable Conduct.

3. On February 23, 2013, a Notice of Hearing (the “Second Notice of Hearing”) was issued by the Respondent to Const. Clough alleging one count of Deceit, contrary to section 2 (1)(d)(ii) of the Code and s. 80(1) of the Act.

4. The second hearing was held on March 26 and 27, 2013 (the “Second Hearing”). In his decision dated November 4, 2013, Supt. Robert Strain (the “Second Hearing Officer”) found Const. Clough guilty of Deceit.

5. In his penalty decision dated September 16, 2013, the First Hearing Officer imposed a penalty of dismissal from the Respondent unless she resigned within seven days of the decision.

6. In his penalty decision dated May 13, 2014, the Second Hearing Officer imposed the same penalty on the Appellant.

7. The Appellant filed Notices of Appeal dated September 20, 2013 and May 19, 2014, respectively, appealing both penalties.

8. The Commission in its Order and Direction dated May 22, 2014 ordered that both appeals be heard together.

Decision

9. For the reasons set out herein, both appeals are dismissed.

Background – First Notice of Hearing

10. The first four paragraphs of the First Hearing Officer’s decision on penalty provide a good summary of the findings arising from the First Hearing:

On October 6th 2011 a Notice of Hearing was issued by Peel Regional Police to Constable Christy Clough #3552 alleging eight counts of Breach of Confidence and three counts of Discreditable Conduct. On February 11th 2013 Constable Clough entered a guilty plea to four counts of Breach of Confidence, those being counts three, four, six and seven on the Notice of Hearing and plead (sic) not guilty to the remaining counts.

An agreed statement of facts was entered as Exhibit four (4), and upon confirmation that the facts were substantially correct, findings of misconduct were registered on counts three, four, six and seven. A Hearing then ensued with respect to the remaining counts, and findings of misconduct were registered on two counts of Discreditable Conduct, being count one and count ten and the remaining counts of Breach of Confidence, being counts two, five, eight and nine. She was found not guilty on the final count of Discreditable Conduct, being count eleven.

The findings of misconduct for eight counts of Breach of Confidence relate to the disclosure by Constable Clough of motor vehicle accident locations received via the Peel Regional Police Computer Aided Dispatch system. The locations of the collisions were disclosed by text messages from Clough to tow truck operator Wayne Isaacs on multiple occasions between December 2010 and March 2011. These disclosures were in contravention of her Oath of Secrecy as a Police Officer, and contrary to Peel Regional Police Directives.

The findings of misconduct for Discreditable Conduct relate to Constable Clough’s inappropriate relationship with tow truck operator Wayne Isaacs. They are based on her assurances that she was willing to further Isaacs’ business interests through providing police information, and her general conduct in contravention of Peel Regional Police Directives which demand that officers be above reproach when dealing with the tow industry. Further misconduct was found in Clough communicating her willingness to research the possibility of having a traffic ticket withdrawn for a third party at Isaac’s request.

11. Const. Clough had met Mr. Isaacs through her acting Sergeant, Const. Matthew Pekeski. She and Const. Pekeski became friends and subsequently had an intimate relationship while Const. Pekeski was separated from his wife who was also a member of the Service. Ultimately they had a child. Subsequently, Const. Pekeski returned to his relationship with his wife. It was a difficult pregnancy for Const. Clough. Const. Pekeski denied paternity and refused to make any support payments. Const. Clough was in financial difficulty while on maternity leave and immediately after. She began to rely upon Mr. Isaacs for moral support and companionship.

12. Const. Clough and Const. Pekeski were separately charged for each sending “heads up” texts to Mr. Isaacs. Const. Pekeski pled guilty to the charges against him and was given a penalty of nine days whereas the result for Const. Clough was an order to resign within a week or be dismissed.

Second Notice of Hearing

13. In the Second Notice of Hearing, it was alleged that during her compelled interview with the Respondent’s Internal Affairs Bureau on August 24, 2011 with regard to the First Notice of Hearing, Const. Clough lied to investigators and had the intention to do so. This was the exchange giving rise to the allegation:

Investigator – Of all the accidents we have discussed so far, how many did you go by and visit Mr. Isaac at?

Clough – Quite a few of them.

Investigator – Quite a few of them are you certain?

Clough- Yeah I’m positive.

14. Const. Clough later admitted the statements she made were not true in that she had only attended a couple of accident scenes. She insisted that there was no intent to deceive the investigators. The Second Hearing Officer made the following finding:

Based upon the evidence presented and considered, the Tribunal is satisfied that there is clear and convincing evidence that Constable Clough intended to mislead Internal Affairs investigators. Therefore Constable Clough is found guilty of the offence of deceit.

Appellant’s Submissions

15. Ms. Salama argued that the penalties imposed were unreasonable. The Hearing Officers did not impartially consider the relevant factors, both aggravating and mitigating. They ascribed too much weight to aggravating factors and not enough weight to mitigating factors.

16. Ms. Salama submitted that the penalties imposed were harsh, excessive and extreme given the misconduct, and that they were inconsistent with prior decisions.

17. Ms. Salama continued that the Respondent submits the proper characterization of this case is fitness which is incorrect. The issue is fairness and if the penalties were not fair, the intervention of the Commission is necessary.

18. She said that she agrees with the Respondent’s assertion that reasons should be read as a whole.

19. Both tribunals found that Const. Clough lacked remorse and did not take responsibility, and therefore, she could not be rehabilitated. In the First Hearing, Ms. Salama submitted that Const. Clough did show remorse by pleading guilty to several charges and by filing an agreed statement of facts. Ms. Salama stated that the First Hearing Officer had the transcripts from the Second Hearing. Const. Clough had written a letter of apology prior to the penalty being handed down.

20. Ms. Salama argued that it was clear that the First Hearing Officer did not believe that Const. Clough showed remorse. Further, he believed she took no responsibility in her evidence during the compelled interview.

21. Ms. Salama stated that in the Second Hearing, Const. Clough denied she intended to mislead investigators even though she provided false information to them.

22. The Second Hearing Officer stated that Const. Clough failed to take responsibility and therefore she was beyond any hope of rehabilitation. Ms. Salama submitted this was an error.

23. Ms. Salama continued that neither Hearing Officer properly took into account Const. Clough’s personal circumstances which were set out on pages 4 to 8 of Appellant’s Factum being paragraphs 13 to 26, inclusive, all under the heading: “Clough Endures Workplace, Emotional, and Financial Stresses”.

24. The Second Hearing Officer heard this evidence from Const. Clough testifying before him. The First Hearing Officer read the transcripts of the Second Hearing.

25. The Second Hearing Officer approached Const. Clough’s circumstances with skepticism. His position was that her poor morals provided her with no ability to rehabilitate. He disregarded her personal circumstances.

26. The First Hearing Officer did find a nexus between Const. Clough’s conduct and her personal circumstances, but stated this does not provide an excuse. Also, he questioned her moral fortitude.

27. The Second Hearing Officer found Const. Clough’s personal circumstances were not sufficient to mitigate. In fact, her stress was used by him to attack her moral fortitude. Ms. Salama submitted that this was not fair due to Const. Clough’s personal circumstances at the time.

28. Ms. Salama argued that the Hearing Officers improperly applied progressive discipline. Progressive discipline should be on a continuum, not “all or nothing”. The First Hearing Officer found that previous findings against Const. Clough were important. The Second Hearing Officer found that previous findings showed a character flaw in Const. Clough.

29. Both Hearing Officers used progressive discipline to bolster their decisions, but, Ms. Salama continued, the seriousness of the charges against Const. Clough should not lead to the penalty of dismissal.

30. Ms. Salama submitted that the penalties imposed were harsh and excessive. The Hearing Officers found the cases to be much more serious than they were. The First Hearing Officer made the following statement at page 12 of his decision dated September 16, 2013:

These actions, when combined with the former, would lead the average person to seriously question Constable Clough’s moral character, and in my opinion the public would view her actions as essentially corrupt.

31. Ms. Salama continued that there was low level information given about accident scenes to the tow truck driver, there was no breach of privacy such as created by a CPIC disclosure. Information on accidents was broadcast over police radio systems and could easily be intercepted by others. Ms. Salama submitted that there had been no breach of privacy in such circumstances. This is not a dismissal penalty case in her view.

32. Regarding the issue concerning the traffic ticket, Const. Clough did not take any steps to obtain withdrawal of the ticket. She received no benefit from her conduct and the First Hearing Officer erred by placing more weight upon the impression that she was willing and able to take care of the ticket and not taking into account the fact that she took no steps and that there was no personal benefit from her conduct.

33. Ms. Salama argued that the charge of Deceit before the Second Hearing Officer was not serious enough to warrant a penalty of dismissal. The Appellant did not have any deliberate intention to mislead the investigators in the answers provided and simply made a mistake.

34. Ms. Salama submitted that the penalties levied in both cases against the Appellant were inconsistent with prior decisions. The Commission has stated in other decisions that there should be consistency in penalty decisions for similar offences – see Carson and Pembroke Police Service (March 9, 2006, OCCPS) and Schofield and Metropolitan Toronto Police (October 29, 1984, OCCPS).

35. Ms. Salama referred to the Pekeski and Peel Regional Police decision which was rendered by Supt. Paul Thorne and is dated December 17, 2012. Const. Pekeski and the Appellant had been in a personal relationship. It had been Const. Pekeski who introduced the Appellant to Wayne Isaacs. The facts of the Pekeski discipline hearing were similar to those in Const. Clough’s hearing. However, Const. Pekeski received a much lower penalty of nine days.

36. Ms. Salama submitted that there were some differences between the Pekeski decision, supra, and that of Const. Clough. She received a much higher penalty. Ms. Salama questioned whether the differences of facts should have led to such a disparity in penalties. She took issue with the Respondent’s position expressed in its Factum where the Respondent states:

…Moreover it should be noted that the Respondent does not agree with the penalty decision in the Pekeski matter and submits that the appropriate penalty in that matter should have been a reduction in rank.

That position is not a relevant consideration in this case.

37. Ms. Salama referred to Dinsdale and Ontario Provincial Police (December 30, 2004, OCCPS) in which, to give effect to the principle of consistency, the Commission reduced a penalty because of the more lenient penalty given to another officer. She asked the Panel to compare the penalties of dismissal given to the Appellant with that given to Const. Pekeski.

38. Ms. Salama said that in the Second Hearing on the Deceit charge, the penalty should have been a couple days based on a review of the cases. The Second Hearing Officer’s decision to dismiss Const. Clough was not consistent with past decisions.

39. The Appellant submitted that both Hearing Officers erred by holding that, while the Appellant may have been under extreme personal stress arising from the circumstances in which she found herself, that was not an excuse for her misconduct and that police officers must “ hew to the line” in following the Directives and their Oath of Office. Ms. Salama argued that the principle outlined in Law Society of Upper Canada v. Aliamisse Omar Mundulai, 2012 ONLSHP 35, that it is exactly when a person in a profession is under great stress that compliance with the rules of the profession must be strictly adhered to otherwise one lacks moral strength and character, should not apply in this case. Ms. Salama acknowledged that while police officers are held to a higher standard of conduct than members of the public, they do suffer human weaknesses and their judgment can be compromised by life’s stresses. The error was not only in discounting this factor in mitigation, but then turning it into an aggravating factor by considering the conduct as displaying an irreparable character flaw. The Appellant also submitted that both of the Hearing Officers ignored the facts that she was subjected to discriminatory and harassing treatment on the job and received no assistance from her employer.

40. The Appellant submitted that she should have been treated as a “first offender” since all of the acts of misconduct occurred at approximately the same time. In this circumstance she should have been given an opportunity to reform and rehabilitate, and it was an error to apply the principle of progressive discipline.

41. Ms. Salama put forward a series of cases for consideration relating to establishing the appropriate range of penalties for similar types of Breach of Confidence. She submitted that these cases speak to the level of seriousness and establish that misconduct, such as disobeying directives or policies, is not so egregious that it demands dismissal. Many of the cases she referred to arose from the same police service as the present case and some resulted in Commission decisions – see Hampel and Toronto Police Service (August 14, 2008, OCCPS); Mikalachi and Toronto Police Service (July 4, 2004, OCCPS); and Morris and Ontario Provincial Police, (July 11, 1992, OCCPS).

42. With regard to the penalty for Deceit, the Appellant argued that there are few cases dealing with an officer lying during a compelled interview and those that do exist suggest a penalty at the low end, being forfeiture of pay – see Betts and Ontario Provincial Police, (June 19, 1997, OCCPS); Allen and Hamilton-Wentworth Regional Police (May 4, 1995, OCCPS); Cristiano and Toronto Police Service, (1997) 3 O.P.R. 1126 (OCCPS); Flaxman and Toronto Police (1974) 1 O.P.R. 156 (O.P.C.); and Stitt and York Regional Police (1997) 3 O.P.R. 1130 (OCCPS).

43. Ms. Salama submitted that the appeal should be allowed and that the Commission should intervene to correct the serious errors of the Hearing Officers, and substitute a penalty consistent with the penalties imposed on other officers for similar misconduct.

Respondent’s Submissions

44. Mr. Dubois submitted that there are two different appeals and the Commission should make two separate decisions. The issue is whether both decisions were reasonable on their own. There is some cross over for example, employment history, and personal circumstances. However, the Respondent submitted that all relevant factors were properly considered and all sentencing principles were applied by each of the Hearing Officers in reaching their decisions.

45. The Respondent submitted that the Appellant is characterizing the appeals using exaggerated and inflammatory language in presenting these appeals as questions of discrimination and harassment by the Respondent. Mr. Dubois stated that the question is: Is the Officer fit to hold the office within the Service. Both Hearing Officers said Const. Clough is no longer fit.

46. In his Factum, Mr. Dubois submitted that, in their respective decisions, each Hearing Officer correctly reviewed and considered all of the relevant evidence, and made findings based upon that evidence. The First Hearing Officer concluded that Const. Clough inappropriately disclosed to a tow truck operator over an extended period, vehicle accident locations obtained via the Computer Aided Dispatch system contrary to the Service Directives and her Oath of Secrecy and that such disclosures were wilful and unethical conduct. He also correctly found that her expression of willingness to assist in obtaining the withdrawal of an issued traffic ticket supported a conclusion that Const. Clough’s moral character was flawed and her actions were essentially corrupt. In addition, he found her credibility lacking.

47. Mr. Dubois submitted that the findings made by the First Hearing Officer supported a conclusion that the Appellant represented such a substantial risk to the reputation and operations of the Service that a forfeiture of pay or a demotion could not be considered an appropriate penalty.

48. Similarly, the Second Hearing Officer, after considering all of the evidence, including the viva voce evidence of Const. Clough, came to the conclusion that the Appellant’s statements made to investigators were a deliberate attempt to mislead. He also found her lacking in credibility. After reviewing the relevant sentencing factors the Second Hearing Officer came to the same conclusion, that the Appellant’s fitness and usefulness as a police officer with the Respondent was spent.

49. Mr. Dubois submitted that the standard of review is one of reasonableness. Have the Hearing Officers considered all relevant factors? The Commission can only intervene in limited circumstances – see Bovell and Toronto Police Service, (July 9, 2012, OCPC); Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (SCC); and Toronto (City) Police Service v. Blowes-Aybar 2004 CanLII 34451 (ON SCDC), [2004] O.J. No. 1655 (Div. Ct.). He submitted that the decisions of the Hearing Officers must be read as a whole and not subjected to microscopic examination or overly critical analysis of the language used, or criticized, because each and every issue or point is not expressly addressed – see Carson and Pembroke Police Service (March 9, 2006, OCCPS), Buckle v. Ontario Provincial Police (2006 Carswell Ont. 815 Div. Ct.); Wowchuk, Bernst and Thunder Bay Police Service (October 30, 2013, OCPC), and Turgeon and Ontario Provincial Police (July 20, 2012, OCPC).

50. Mr. Dubois urged the Panel to look at all of the factual circumstances of the two cases even though the Appellant is only appealing the penalties. But he acknowledged that deference must be afforded to the findings of fact, the credibility of witnesses and the weighing of evidence. These are within the purview of the Hearing Officers and the Commission cannot interfere unless there is a manifest error or the conclusions are unreasonable and are not supported by the evidence.

51. Ceyssens in, Legal Aspects of Policing, at page 5-197 sets out 15 factors to consider when deciding a penalty, each of which may contain aggravating or mitigating elements depending on the particular misconduct.

52. In Williams and Ontario Provincial Police (December 4, 1995, OCCPS), the Commission set out three key elements to be considered in deciding whether the officer has exhausted his or her usefulness to a police service.

53. The Hearing Officers had the list of factors from Legal Aspects of Policing, supra. They were guided by them. 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.

54. Mr. Dubois said it is not to be presumed that if no mitigating weight can be given to a factor, then it is automatically an aggravating factor. He referred to R. v. J.S. 2011 ONSC 4765 (Ont. Sup. Ct. of Justice) at paragraphs 35 and 36.

55. Mr. Dubois continued in saying that regarding the appeal from the First Hearing Officer’s decision, there are six sentencing factors the Respondent is relying on:

(a) the seriousness of the misconduct;

(b) the recognition of the seriousness of the misconduct;

(c) handicap and other relevant personal circumstances;

(d) employment history;

(e) potential to reform or rehabilitate; and

(f) consistency of disposition.

Seriousness of Misconduct

56. In Legal Aspects of Policing, supra, there is a discussion of behaviour which is unethical and deliberate consisting of a series of acts committed over an extended period as amounting to misconduct. Mr. Dubois submitted that all of those factors are present in this case. Const. Clough was charged with eight misconduct breaches committed over a significant period of time. She was found to have divulged valuable commercial information. She used her public position to benefit a friend. This conduct undermined the fairness of the Service to other tow truck drivers, and must undermine public trust in the Service.

57. In addition, he submitted, Const. Clough told the friend she was willing and able to obtain the withdrawal of a traffic ticket. This indicates an intention to interfere with the administration of justice. She did not fix the ticket but she looked into how that could be done. Her explanation was that she only told Mr. Isaacs she could do it to get him off her back. The First Hearing Officer concluded that this left the impression with the friend that she would do so which the First Hearing Officer found was extremely serious.

58. Mr. Dubois submitted that the alleged misconduct took place over four months and the traffic ticket played out over five months. This was not a single act or momentary lapse of judgment. It was an abuse of power. This was much more than simply providing information. Mr. Dubois argued that this is at the extreme end of seriousness. Officers cannot pick and choose when they obey their Oath of Secrecy. The First Hearing Officer placed the proper weight on this factor. There was no error.

Recognition of Seriousness of the Misconduct

59. Mr. Dubois submitted that recognition of the seriousness of the misconduct can be a mitigating factor but lack of such recognition can be an aggravating factor. A hearing officer cannot treat a police officer’s insistence on a full answer and defence as an aggravating factor. The Appellant’s position is that an error occurred because the First Hearing Officer assigned little or no weight to her acknowledgement of the seriousness of some of her misconduct and therefore treated it as an aggravating factor. Mr. Dubois argued that the First Hearing Officer did properly consider the Appellant’s admissions prior to and at the hearing.

60. Mr. Dubois submitted that Const. Clough relies on her partial guilty plea, her admission of certain facts, her letter of apology, and the transcripts from the Second Hearing, all of which were considered by the First Hearing Officer.

61. He argued that at no point did Const. Clough admit that she was responsible for what she did. In her compelled interview, she expressed no responsibility. She said she met Mr. Isaacs at accident scenes to avoid having his jealous wife/girlfriend see her. Both Hearing Officers did not believe her.

62. Mr. Dubois continued that the First Hearing Officer received only a “partial” guilty plea on four counts, with a not guilty plea on the other counts. He found that Const. Clough was seriously lacking in credibility even though Const. Clough did not testify in the First Hearing. He referred to the transcript of her compelled interview and the transcript of the Second Hearing. At the eleventh hour, Const. Clough provided a written apology which the First Hearing Officer found said “rings hollow”.

63. Mr. Dubois submitted that the First Hearing Officer did have the transcript of Const. Clough’s compelled interview as evidence before him. He made proper findings.

64. Mr. Dubois argued that it is not automatic for a hearing officer to find a letter of apology a mitigating factor – see More and York Regional Police Service (March 26, 2001, OCCPS) page 7 and McPhee and Brantford Police Service (August 3, 2012, OCPC) paragraph 97.

65. Mr. Dubois submitted that the Appellant alleges that the First Hearing Officer went further than simply finding that the Appellant did not accept responsibility for her conduct but treated the absence of acceptance of responsibility as an aggravating factor. That was not the case. After reviewing the transcripts of the compelled interview and the second hearing, the First Hearing Officer found her lacking in credibility and he did not accept her position that she accepted responsibility by her partial guilty plea and expressed remorse through her apology. Mr. Dubois submitted that the First Hearing Officer was entitled to make those findings. There was no error.

Handicap and Other Relevant Personal Circumstances

66. Mr. Dubois submitted that the First Hearing Officer did consider the difficult personal circumstances of the Appellant as disclosed in the evidence but found that information of limited value when weighed against the Appellant’s overall course of conduct displaying a lack of moral fortitude required of a police officer.

67. The First Hearing Officer reviewed the transcript of Const. Clough’s compelled interview and the transcript of the second hearing. It was not unreasonable for the First Hearing Officer to make this finding, and the finding should be given considerable deference.

68. Mr. Dubois continued that the First Hearing Officer did not treat the stress Const. Clough was under as an aggravating factor. However on page 10 of his decision, he referred to the decision of a Law Society of Upper Canada Hearing Panel in which that Panel indicated that, “misconduct that occurred during a period of stress caused by financial or matrimonial pressures may also be of doubtful value in mitigation of the penalty. The fact that lawyers yield to temptation under stress may indeed be regarded as a sign that they lack the moral strength necessary to be lawyers” – Law Society of Upper Canada v. Aliamisse Omar Mundulai, supra. He submitted that the stresses and difficult personal circumstances Const. Clough was facing may provide some explanation for the misconduct, but do not provide an excuse.

69. Mr. Dubois argued that no medical evidence was presented regarding the stress Const. Clough testified she was under. Personal circumstances are relevant but not an excuse – see Betts and Ontario Provincial Police, supra, at page 5. The First Hearing Officer found no nexus between Const. Clough’s difficult personal circumstances and her numerous breaches over time of her position as a police officer.

Employment History

70. On page 8 of his decision, the First Hearing Officer referred to Const. Clough’s prior discipline issues. Mr. Dubois submitted it was entirely proper to be looking at her entire employment record including past misconduct.

71. Mr. Dubois argued that there are other disciplinary findings to look at with the conduct decision of the Second Hearing Officer and, also, the penalty decision of Superintendent David Downer dated April 22, 2013 imposing a penalty on the Appellant of suspension without pay for 80 hours for discreditable conduct involving utilizing confidential police information in an unauthorized capacity. These decisions can be taken into account by the First Hearing Officer in determining the Appellant’s prospects for rehabilitation.

72. Mr. Dubois submitted that even if the conduct giving rise to discipline occurred after that which led to the First Hearing, it is appropriate for the First Hearing Officer to take the findings and decisions in subsequent disciplinary proceedings into account – see Galassi v. Hamilton (City) Police Service [2005] O.J. No. 2301 (Div. Ct.). Therefore the Second Hearing Officer’s findings should be considered in determining whether the First Hearing Officer’s decision was reasonable.

73. Regarding the Appellant’s position that discipline should be progressive but was not in Const. Clough’s case, Mr. Dubois submitted that if the matter giving rise to the discipline is serious, it is not necessary that discipline be progressive.

Potential to Reform or Rehabilitate

74. Mr. Dubois submitted that the First Hearing Officer considered more than the lack of remorse shown by Const. Clough. He found her responses in the professional standards interview undermined her credibility. He also considered her whole employment history including how limited it was. The First Hearing Officer referred to the earlier misconduct decision given by Supt. Downer on February 28, 2013 who made an observation about repeated misconduct. He agreed with that observation. The First Hearing Officer looked at past conduct to predict possible future conduct. He found that the Appellant was not forthright. He drew parallels with her earlier discipline record and noted the persistent breaches of trust, breaches of her Oath of Secrecy, and her dishonesty. There was no error.

Consistency of Disposition

75. Mr. Dubois submitted that in Legal Aspects of Policing, supra, it is provided that similar misconduct should be treated in similar fashion. But perfection is not possible. In addressing the Pekeski decision, referred to above, the First Hearing Officer looked at the distinguishing factors. Const. Pekeski was charged with three counts of breach of confidence. He pled guilty to all three. Const. Clough was charged with eight breaches of confidence and three counts of discreditable conduct. There was unethical behavior regarding the traffic ticket. There was a big difference between the two cases. That of Const. Clough was much more serious.

76. Mr. Dubois submitted that the First Hearing Officer stated that the public would see Const. Clough’s behavior as corrupt.

77. Const. Pekeski had served for 12 years, whereas Const. Clough began her career with the Service in 2008. Const. Pekeski had one prior discipline matter which was settled informally. He had positive performance evaluations whereas Const. Clough’s performance evaluations were below average and she had two prior disciplinary matters, one of which was dealt with informally. Const. Clough had a public complaint about her conduct resulting in the decision of Supt. Downer. Const. Pekeski pleaded guilty to the charges against him whereas Const. Clough only pled guilty to some.

78. Mr. Dubois submitted that decided cases show dismissal is within the range of penalties that are reasonably expected in the circumstances of this case – see Coon and Toronto Police Service (April 10, 2003, OCCPS); Eschweiler and Ontario Provincial Police (September 23, 1998, OCCPS); Hassan and Peel Regional Police Service (September 8, 2006, OCCPS); Mamak and Ottawa Police Service (April 13, 2011, OCPC); and MacDonald and Metropolitan Toronto Police (December 17, 1985, OPC).

79. Mr. Dubois also submitted that the First Hearing Officer turned his mind to lesser penalties but properly concluded that a penalty of dismissal was appropriate. He determined that Const. Clough’s usefulness was spent, that she presented a substantial risk to the Service, that she was only a member of the Service for a short time and that she had a history of an inability to maintain confidential information and follow the rules.

80. The First Hearing Officer looked at all of the relevant sentencing factors. The penalty of dismissal falls within the range of acceptable outcomes and his decision was fair. His reasoning was coherent, logical and transparent.

81. Mr. Dubois then presented his submissions regarding the Second Hearing and the appeal of the Second Hearing Officer’s decision. He referred to the same penalty factors set out in paragraph 55 above.

Seriousness of the Misconduct

82. Mr. Dubois submitted that Appellant’s arguments that the Second Hearing Officer treated her misconduct as more than it was, is not correct. He submitted that a charge of Deceit is serious. Trust is key for police officers. The Second Hearing Officer made a finding that Const. Clough’s conduct was deliberate.

83. The allegation of Deceit arose out of Const. Clough’s compelled interview regarding the First Hearing. While Const. Clough took issue with the way the interview was conducted, nevertheless the Second Hearing Officer found that the charge did not arise from a momentary lapse in judgment but was a deliberate act.

84. Mr. Dubois continued that Const. Clough’s deceit struck at the core values of the Service, undermined the trust of the community, and amounted to serious misconduct.

Recognition of Seriousness of the Misconduct

85. Mr. Dubois submitted that the Second Hearing Officer did not treat the Appellant’s not guilty plea as an aggravating factor. He looked at all the evidence including the viva voce evidence of Const. Clough. He reviewed the transcript of the compelled interview. He found her to be lacking in remorse, that Const. Clough showed no recognition of the seriousness of her conduct, and that she has a serious problem with her credibility and honesty.

86. Const. Clough did recognize that her statement was wrong. She said it was inaccurate, but Mr. Dubois argued that she intended to mislead the investigators at her compelled interview. Listening to Const. Clough’s responses during the taped interview, one would conclude that, notwithstanding that she had legal advice, her answers were deliberately misleading and deceitful. She never acknowledged that her conduct was intentional.

Handicap and Other Relevant Personal Circumstances

87. Mr. Dubois stated the Second Hearing Officer did not completely ignore the Appellant’s difficult personal circumstances. He reviewed her evidence about her circumstances. He acknowledged there were personal concerns causing Const. Clough some level of distress, but he wrote at paragraph 58: “this is not an excuse or mitigating factor.” No medical evidence was presented by the Appellant. He was able to observe her as she testified and could make findings regarding her credibility. Mr. Dubois indicated it is up to the Second Hearing Officer to accept or reject Const. Clough’s evidence. Like the First Hearing Officer, he could not find a nexus between her personal circumstances and her misconduct which might support mitigation on this factor.

88. The Second Hearing Officer acknowledged that the appellant found it uncomfortable in the workplace prior to taking maternity leave in April 2010. She also gave evidence that she loved her job earlier in 2010 and that on her return to work following her maternity leave in December 2010, most people on her shift were good but a few were extremely ignorant. Mr. Dubois argued that the Second Hearing Officer found that the Appellant’s evidence on her personal circumstances displayed a number of inconsistencies.

89. Mr. Dubois pointed out that a very different picture is outlined in the Appellant’s factum from what was in her own testimony during the Second Hearing where she said she was fine physically and financially.

90. Regarding her financial situation and how that impacted her, Const. Clough also testified she was fine financially after she returned from maternity leave.

Employment History

91. Mr. Dubois submitted that the Appellant’s employment history was considered by the Second Hearing Officer. In addition, he had both the findings by Supt. Downer and the First Hearing Officer. They were appropriately considered by him. There was no error.

Potential to Reform or Rehabilitate

92. Mr. Dubois submitted that the Second Hearing Officer specifically considered whether Const. Clough could be rehabilitated and decided that training or further experience would not help, that past conduct is the best precursor of future conduct and that there was a fundamental flaw in Const. Clough’s character. The Second Hearing Officer found the deceit not to be out of character and that the incident giving rise to the charge was not an isolated incident.

93. Mr. Dubois stated that a dismissal penalty for a single charge of deceit is consistent with case law: see – Fortner and Goderich Police Force (August 18, 1975, OPC); Wilson and Ontario Provincial Police Force (May 27, 1982, OPC); Parsons and Halton Regional Police Force (May 1, 1989, OCCPS), Martin and Windsor Police Service (August 17, 2009, OCCPS); Delano and Niagara Regional Police Service (December 4, 1998, OCCPS); and Cirillo and York Region Police Force (May 22, 1991, OCCPS).

94. Mr. Dubois argued that consistency does not mean perfection. The question to be asked is, was the penalty an available outcome? In this case, the answer is “yes”. The Second Hearing Officer considered a reduction in rank but found it not to be appropriate.

Analysis

First Hearing Appeal – Issues

95. The issues with regard to the First Hearing Appeal are:

a) What is the standard of review to be applied to the appeal of the penalty? and

b) If the standard is “reasonableness”, was the First Hearing Officer’s penalty decision reasonable?

Standard of Review

96. The Commission has consistently stated that:

a) for a hearing officer’s findings of fact and imposition of a penalty the standard is reasonableness: see Dunsmuir v. New Brunswick supra; and

b) for a hearing officer’s interpretation and application of the general law the standard is correctness: see Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3rd) 1 (Ont. C.A.).

97. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir v. New Brunswick, supra, in the following terms:

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

98. Past Commission decisions have spoken to our role on an appeal, noting that we are not to second-guess the decision of a hearing officer, but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence, and are articulated in a logical manner: see Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div. Ct.).

99. In certain limited cases it may be open to the Panel to reach a different conclusion from the hearing officer. However, the Panel should only intervene if there has been an error in principle, or relevant factors have been ignored: see Williams, Wilson and Ontario Provincial Police (November 20, 2006, OCCPS) affirmed 2004 CanLII 34173 (ONCA), Favretto and Ontario Provincial Police (February 13, 2002, OCCPS), and Karklins and Toronto Police Service (September 25, 2007, OCCPS).

100. An appeal to the Commission is an appeal on the record. Unlike the hearing officer, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to a hearing officer’s findings, unless an examination of the record shows that the hearing officer’s conclusions cannot reasonably be supported by the evidence: see Blowes-Aybar and Toronto (City) Police Service, supra.

Was the First Hearing Officer’s Penalty Reasonable

101. The Commission has often referred to Legal Aspects of Policing, supra, for a list of factors, either mitigating or aggravating, to assist it in determining whether the penalty imposed by a hearing officer is reasonable. We find that the sentencing factors relevant in these appeals are the six identified by Mr. Dubois and listed in paragraph 55 above.

102. The First Hearing Officer begins discussing these factors on page 7 of his decision. The first factor discussed was the Appellant’s employment history with the Service. He finds her career with the Service as being “short, and essentially unremarkable”. He continues by citing previous discipline issues with the Appellant, one for Negligence and another for Discreditable Conduct by utilizing confidential police information for an unofficial and unauthorized purpose.

103. The First Hearing Officer finds the prior discipline history of the Appellant to be “a seriously aggravating factor particularly when, as in the present case, it involved a course of conduct”. This conclusion was within his purview to make.

104. There is no requirement on a hearing officer to give all factors equal weight. Indeed if the seriousness of the misconduct is so egregious, this factor alone can lead and has led to the highest range of penalties.

105. The First Hearing Officer addressed the Appellant’s recognition of the seriousness of her misconduct. She pled guilty to four counts in the Notice of Hearing, she acknowledged an agreed statement of facts, and the First Hearing Officer had her compelled interview to review. On all of these he placed little mitigating value. Weighing evidence is a hearing officer’s job. From our review of the record, we do not find his finding on this factor unreasonable. Const. Clough engaged in unethical behavior repeatedly over five months. Her compelled interview shows a serious lack of understanding of her own behavior, while engaging in continued dishonesty.

106. The First Hearing Officer made the following comment at the bottom of page 9 of his decision:

Despite the partial plea, and acceptance of the facts, I am far from convinced Constable Clough truly understands the seriousness of her misconduct, or has truly taken responsibility. I agree with the prosecution that the compelled interview does not accord with meaningful co- operation, and in my opinion is devoid of any form of acceptance of responsibility, regret or remorse.

107. The First Hearing Officer also downplays the importance of a written apology to him from Const. Clough which, he said, “…rings hollow, and I assign it little weight in terms of mitigation”. Hearing officers are entitled to assess the sincerity of a letter of apology. In our view, the mere existence of a letter of apology does not equate to automatic mitigation.

108. He then discusses Const. Clough’s personal circumstances. As is her right, Const. Clough did not give evidence in her hearing before the First Hearing Officer. However he did have the transcript of her evidence before the Second Hearing Officer.

109. In our review of the record, we could not find any medical evidence or evidence from professionals which could support the Appellant’s arguments that her behavior resulted from the stress she was experiencing or from any other circumstances in her life. Without supporting evidence, these arguments bear little weight.

110. The First Hearing Officer accepts her personal situation but states that Const. Clough had a choice, and in exercising it, “she gave little, or no consideration to the detrimental affect (sic) her actions would have on the public, private commercial interests, and the reputation of the Peel Regional Police”.

111. The First Hearing Officer concludes this factor by stating: The difficulty Constable Clough was facing and the resulting stresses in her personal life provide some explanation for the misconduct, but does not provide an excuse. Indeed, her course of action brings her level of moral fortitude into question.

112. The First Hearing Officer reviewed Const. Clough’s ability to reform or rehabilitate. We agree with his finding that “the aggravating factors in this case heavily outweigh any mitigation, and do not bode well for rehabilitative prospects in light of Constable Clough’s previous record and limited service”.

113. He dealt with the concern of the public if they knew the circumstances of the Appellant’s misconduct, using words such as “appalled” and “outraged”.

114. In the view of the Panel, the First Hearing Officer’s findings regarding the mitigating and aggravating factors relevant in this case are reasonable.

115. The First Hearing Officer also reviewed and distinguished the case law submitted by the Appellant.

116. The First Hearing Officer referred to several cases which he thought assisted him in deciding the issues in this case: see Morden and Peel Regional Police Service (March 20, 1997, OCCPS), Coon and Toronto Police Service (April 10, 2003, OCCPS), and Mamak and Ottawa Police Service (April 13, 2011, OCPC).

All of these cases were appeals from dismissal penalties imposed by hearing officers, and all were upheld on appeal.

117. We find that the case before us is distinguished from Pekeski, supra. In the case before us Const. Clough disclosed tips more than 8 times whereas in Pekeski, it was 3 times. Const. Pekeski was an officer for 12 years with only 1 prior discipline issue in an otherwise good performance record. Const. Clough had been an officer for only two years, with weak evaluations and was the subject of prior disciplinary matters. Finally, Const. Clough pled guilty to four of 11 charges, while Const. Pekeski pled guilty to all the charges against him. In addition, Const. Clough was dishonest in her compelled interview.

118. Consistency is a hallmark of fairness, but an appropriate penalty must be carefully tailored to the individual case, and address all of the distinguishing factors. We find that the First Hearing Officer’s penalty was reasonable in the circumstances and within the range of acceptable outcomes. The appeal from this penalty is dismissed.

Second Hearing Appeal – Issues

119. The issues with respect to the Second Hearing Appeal are the same as those that apply to the First Hearing Appeal, namely:

a) What is the standard of review to be applied to the appeal of the penalty? and

b) If the standard was “reasonableness”, was the Second Hearing Officer’s penalty decision reasonable?

120. The standard of review for this appeal is the same as for the First Appeal, namely, reasonableness.

Was the Second Hearing Officer’s Penalty Reasonable

121. The Second Hearing Officer dealt with the six factors described in paragraph 55 above.

122. Regarding the public interest factor, he stated:

The expectation of the public would be in the core belief that officers would tell the truth and not mislead investigators from their own Service.

123. The Second Hearing Officer addressed the seriousness of the Appellant’s misconduct, and her lack of recognition thereof and found this to be a “key component” of the matter.

124. He reviewed the Appellant’s employment history finding it to be “very limited”. She had one performance appraisal which he described as “unremarkable”, indicating that she needs development in several areas which would be expected of someone at her stage of her career.

125. The Second Hearing Officer addressed specific deterrence, stating that Const. Clough had breached the trust of the Service and the community. This was the third example of such type of misconduct. He indicated that general deterrence only minimally affected his decision. He also found that damage to the reputation of the Service was limited in this case by lack of publicity, but he stated that a larger issue would be the potential damage and risk to the Service should Const. Clough remain an employee.

126. The Second Hearing Officer addressed the personal circumstances of Const. Clough, saying much testimony was heard at the hearing. He accepted Const. Clough had some stress but said “this is not an excuse or mitigating factor in our opinion”. Later in the same paragraph of his penalty decision, he stated: “Her inability to be a professional police officer when needed is telling of her moral character”.

127. Based upon our careful review of the Second Hearing Officer’s decision, his findings of fact and his detailed analysis of the appropriate sentencing factors, we concur that he was entitled to come to the conclusions he expressed regarding her character and the likelihood of future potential harm to the Service if she remained employed.

128. The Second Hearing Officer understood that consistency is an earmark of fairness. A fair penalty has to be based in the facts of the case and consistent with similar cases – see Schofield and Metropolitan Toronto Police, (October 29, 1984, OPC).

129. He distinguished a number of cases in which penalties were either days forfeited or a reduction in rank for a period of time, but maintained that Deceit is serious misconduct.

130. Clearly the Second Hearing Officer was influenced by the two previous serious misconduct findings against Const. Clough. He recognized that Const. Clough’s period of employment was short, but based on the three different sets of misconduct charges against her within that short time, the Second Hearing Officer concluded that “this is not a traditional performance issue that can be corrected with training and experience”. We agree entirely with that conclusion.

131. Const. Clough argued that the First Hearing Officer commented in his decision about her conduct in the compelled interview, and that she should not be punished twice. The Second Hearing Officer did not agree, stating that the Deceit matter was “a separate offence separated in time from the misconduct, heard by” the First Hearing Officer. Again, we concur with that finding. While the deceit occurred in the context of the compelled interview relating to the first set of misconduct charges, the deceit occurred as a separate and distinct incident subsequent to the first series of misconduct.

132. The Second Hearing Officer referred to the case of Trumbley v. Fleming 1986 CanLII 146 (ON CA), 55 O.R. (2nd) 570, in which the Ontario Court of Appeal wrote the following about a police discipline matter:

…A police discipline matter is a purely administrative internal process. It’s most serious possible consequence makes it analogous to a discipline matter in ordinary employer-employee relationships, even though the procedure governing it is clearly more formal. The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform, or possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.

132. The Second Hearing Officer concluded his decision by stating:

In the case here, it is not the one matter of the one count of deceit, while serious enough on its own merits, but when taken into account the previous misconducts and the factors to be assessed in totality leads to only one reasonable conclusion.

The Second Hearing Officer then imposed the dismissal penalty.

133. It may well be, as the Appellant argues, that the case law for a finding of one count of Deceit does not include at the high range of acceptable outcomes a penalty of dismissal.

134. But the Panel is of the view that such a finding cannot be considered in isolation in view of the Appellant’s employment history with the Service and in particular the prior instances of discipline. The Second Hearing Officer clearly took that history into account in considering the Appellant’s ability to rehabilitate, and whether the Appellant’s usefulness to the Service has been annulled. We agree that the Appellant’s whole course of conduct during her relatively short time with the Service must be taken into account.

135. Const. Clough became a member of the Service in April

136. She went on parental leave in April 2010, returning to work in December 2010. She was suspended in May

137. Aside from the disciplinary matters before us, Const. Clough has had other disciplinary issues in her short career with the Service.

138. She received a discipline report in March 2011 for being late for work. She was assessed an informal penalty of eight hours forfeiture for this.

139. In his conduct decision dated February 28, 2013, Supt. Downer found Const. Clough had, on clear and convincing evidence, released confidential information obtained from CPIC and Durham Regional Police Service in an unofficial and unauthorized capacity between February 26, 2010 and February 13, 2011.

140. In his penalty decision dated April 22, 2013, Supt. Downer ordered Const. Clough be suspended without pay for 80 hours.

141. There is a pattern of conduct displayed by Const. Clough throughout the period of her employment that can lead to no other reasonable conclusion but that she is not fit to remain a member of the Service.

142. We find that the conclusions reached by the Second Hearing Officer and the penalty he imposed are reasonable.

143. Accordingly, the Panel dismisses Const. Clough’s appeal of the penalty decision of the Second Hearing Officer.

144. For the reasons set out above, both appeals are dismissed.

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

David C. Gavsie Associate Chair, OCPC

Roy Conacher, Q.C. Vice-Chair, OCPC

Zahra Dhanani Member, OCPC