Constable Graeme Kobayashi, Constable Jeffrey Vongkhamphou and Constable Timothy Green v. Waterloo Regional Police Service, 2015 ONCPC 12

ONTARIO CIVILIAN POLICE COMMISSION

DATE: 2015-06-11

FILE: 2015 ONCPC 12

CASE NAME: Kobayashi and Waterloo Regional Police Service

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

BETWEEN:

Constable Graeme Kobayashi, Constable Jeffrey Vongkhamphou and Constable Timothy Green APPELLANT

-and-

Waterloo Regional Police Service RESPONDENT

DECISION

AMENDED

Panel: Jacqueline Castel, Member Stephen Jovanovic, Member Marie Fortier, Member

Hearing Date: April 29, 2015

Hearing Location: Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3

Appearances

David Butt, Counsel for the Appellants, Constable Graeme Kobayashi and Constable Jeffrey Vongkhamphou

Harry G. Black, Q.C., Counsel for the Appellant, Constable Timothy Green

Lynda A. Bordeleau, Counsel for the Respondent, Waterloo Regional Police Service (the “Service”)

Introduction

1. Constables Graeme Kobayashi (“Const. Kobayashi” or the “Appellant”), Jeffrey Vongkhamphou (“Const. Vongkhamphou” or the “Appellant”) and Timothy Green (“Const. Green” or the “Appellant) (collectively, the “Appellants”) are appealing the penalties imposed on them by Superintendent Robert F. Gould (the “Hearing Officer”) in his decision of March 24, 2014 (the “Penalty Decision”).

2. Const. Kobayashi pled guilty to one count of Deceit, two counts of Discreditable Conduct, and one count of Insubordination under the Code of Conduct (the “Code of Conduct”) set out as a Schedule to Ontario Regulation 268/10 enacted under the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “Act” or the “PSA”).

3. Const. Vongkhamphou pled guilty to ten counts of Discreditable Conduct, one count of Neglect of Duty, and one count of Deceit under the Code of Conduct.

4. Const. Green pled guilty to one count of Deceit, two counts of Discreditable Conduct, and one count of Insubordination under the Code of Conduct.

5. In the Penalty Decision, the Hearing Officer ordered Const. Vongkhamphou dismissed from employment, and he ordered Const. Kobayashi and Const. Green to resign within seven days or have their employment terminated.

6. The Appellants are seeking to have the penalties set aside and replaced with an order that they be demoted to Fourth Class Constables.

7. The main grounds of appeal are:

i) the Hearing Officer misapprehended expert evidence and evidence on the nature of the misconduct;

ii) the Hearing Officer erred in considering penalty factors;

iii) the Hearing Officer applied the wrong test for dismissal; and

iv) the penalties are inconsistent with similar cases.

DECISION

8. The appeals are dismissed for reasons which follow.

BACKGROUND

9. Const. Kobayashi has been a member of the Service since April 2008. He had three years of experience as a police officer at the time that the misconduct became known to his superiors.

10. Const. Vongkhamphou has been a member of the Service since August 2003. He had over seven years of experience as a police officer at the time that the misconduct became known to his superiors.

11. Const. Green has been employed with the Service since August 2009. He had one and a half years of experience as a police officer at the time that the misconduct became known to his superiors.

12. This is the first experience the Appellants have had with the formal discipline system under the Act.

Summary of Misconduct

13. At the penalty hearing, the prosecution submitted an Agreed Statement of Facts (“ASF”) for each of the Appellants.

14. The majority of the misconduct pertained to the Appellants’ involvement in a BlackBerry Messenger Group (“BBM Group”). The BBM Group was used to disseminate photographs, accompanied by degrading and/or discriminatory comments on sex, ethnic origin, sexual orientation and/or disability, between January and December 2011. The photographs and comments were of other members of the Service and members of the public. Some of the photographs of members of the public were taken while the Appellants were on duty. This conduct brought discredit to the reputation of the Service.

15. Const. Kobayashi and Const. Green posted to the members of the BBM Group, for entertainment purposes, information from the Canadian Police Information Centre (“CPIC”) and the Police Automated Registration Information System (“PARIS”), accompanied by comments. This contravened the Service’s procedure which took the form of an order from the Chief of the Service. In failing to comply with the order, Const. Kobayashi and Const. Green were insubordinate.

16. All three Appellants failed to report criminal activities of Constable Christopher Knox (“Const. Knox”), another member of the BBM Group and a member of the Service. The Appellants were aware that Const. Knox had committed criminal offences relating to an assault and to the theft of images and items; they did not report any of these incidents to their supervisors or take appropriate action, as their oaths of office would dictate. This action brought discredit to the reputation of the Service.

17. Const. Kobayashi, Const. Green and Const. Vongkhamphou were deceitful to criminal investigators and the Service’s Professional Standards investigators on three, five and four occasions, respectively, between April and November 2011. The deceit concerned their knowledge of their activities and those of Const. Knox. The activities in question involved the theft of the naked and semi-naked photos of BB from CC’s Blackberry device, the theft of DD’s naked and semi-naked photographs from DD’s residence, the theft of a sex toy from EE, the surreptitious naked photograph of AA, and the assault on FF.¹

18. Const. Vongkhamphou failed to report a subject apprehension pursuit (“SAP”) in which he was involved. He also did not have the authority to initiate that SAP. When questioned about the incident, he lied about his involvement on two occasions to Professional Standards investigators. Const. Vongkhamphou also failed to complete the appropriate reports relating to the SAP, a requirement under the procedures of the Service. In failing to report the SAP and complete the appropriate reports, Const. Vongkhamphou neglected his duty.

19. Const. Vongkhamphou was also found guilty in criminal court on an obstruct justice charge stemming from the removal and destruction of evidence from the locker of Const. Knox. This action brought discredit to the reputation of the Service.

Victim Impact

20. Three victim impact statements were filed and a fourth was read into the record at the hearing. One victim stated that the actions were humiliating, exploitative, and had a dramatic effect on his mental health and personal life. He suffered from PTSD, reactive depression and anxiety, and he attempted suicide.

21. Another victim stated that the actions occurred at a vulnerable time in her life and she has dropped out of a post graduate program, started using alcohol excessively and is incapable of having committed relationships. She is also unable to trust the police and refuses to drive past the police station on the way to work. She worries about the photos resurfacing.

22. A third victim has been diagnosed with a depressive disorder, an anxiety disorder and PTSD and has been declared totally disabled and unable to work by Sun Life. He has never had mental health issues before this incident and, as a result, has no confidence or trust in the police.

23. The fourth victim, JJ, read her statement at the hearing. JJ was a supervisor with the Service who endured 15 surgeries because she was born with a cleft palate that was the subject of derisive comment in the BBM Group. She stated that although she has received some second glances from members of the public, she has never experienced the nastiness exhibited by the Appellants. She has taken pride, for 24 years, in telling people the police could always be trusted to provide help. She is ashamed to say these individuals are police officers.

Dr. Julian Gojer’s Evidence

24. Dr. Julian Gojer was qualified on consent as an expert in forensic psychiatry to present his assessment of all three Appellants. He prepared two reports for each of the Appellants. He determined that none of the Appellants suffered from a mood disorder, thought disorder, psychotic illness, personality disorder, or any other mental illness or pathology that could have contributed to the misconduct. He also determined that there were no substance abuse issues.

25. According to Dr. Gojer, the misconduct was precipitated by psycho-social dynamics in the BBM Group. He indicated that while the group dynamics do not excuse the misconduct, they provide the necessary context for understanding the Appellants’ behaviour. He explained that group dynamics in many contexts (gangs, dysfunctional families, religious extremism) share common features and can influence individuals who do not have any psycho-pathology.

26. Dr. Gojer testified that groups provide identity, acceptance, belonging, but can also lead to a false sense of immunity when individuals suspend judgment and fail to address problematic behaviours. He stated that once the behaviour degenerated to misconduct, the Appellants felt trapped. He explained the lying to investigators about the BBM Group activities in the context of feeling trapped and pressured into conformity. Dr. Gojer described Const. Knox as having a destructive influence over the BBM Group.

27. Dr. Gojer described the therapy he designed and delivered to the Appellants. The therapy included sessions with a clinical psychologist, which addressed the cognitive and emotional elements that went into the offending behaviours, as well as counseling sessions with Dr. Gojer, a social worker, and a priest.

28. Dr. Gojer testified that, in his opinion, reoccurrence of the offending behaviours is “extremely unlikely” for any of the Appellants and did not see any impediments to a successful return to policing. He said:

… I see that these people having been hurt by their own actions, have become wiser. Have become more in tune with their emotions. Have become more sensitive to their thoughts and exquisitely sensitive to the boundaries that exist between them and the public, between them and this police service. They’re individuals that actually can take something back to the police force and contribute to the police service. (Record of Disciplinary Hearing, pp. 97-98.)

29. Dr. Gojer acknowledged that it is not common for him to treat individuals who do not have any psychiatric illnesses. He also acknowledged that of the 500 plus assessments he had done, not many were of police officers, and he did not look at the occupational requirements for police officers before preparing his report. He did not have a job description or any materials about the sensitivity training the Appellants received from the Service, which he acknowledged would have been helpful.

Media Attention

30. This case was reported in local media 16 times between May 2012 and December 2013.

ISSUES

31. The issues before the Panel are:

1. What is the standard of review?

2. Did the Hearing Officer misapprehend the expert evidence of Dr. Gojer?

3. Did the Hearing Officer misapprehend evidence when referring to “targeting” members of the public?

4. Did the Hearing Officer err in considering penalty factors, in particular the guilty pleas, letters of apology, victim impact statements and seriousness of misconduct?

5. Did the Hearing Officer apply the wrong test for dismissal?

6. Was the Hearing Officer’s decision on dismissal inconsistent with other similar cases?

REASONS

What is the Standard of Review?

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

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

33. As such, the Commission is not permitted to reweigh the disposition factors to come to a conclusion on penalty which it believes is more appropriate. Unless there has been an error in principle or relevant factors have been ignored, the Commission cannot interfere with a decision on penalty even if it might have come to a different conclusion if hearing the matter at first instance - see: Groot and The Peel Regional Police Service, (April 5, 2002, OCCPS) at p. 7; Hassan and The Peel Regional Police Service, (September 8, 2006, OCCPS) at p. 10; Williams, Wilson and Ontario Provincial Police, (November 20, 2006, OCCPS), Favretto and Ontario Provincial Police, (February 13, 2002, OCCPS) and Karklins and Toronto Police Service, supra.

Did the Hearing Officer Misapprehend the Evidence of Dr. Gojer?

34. Mr. Butt submitted that the Hearing Officer misapprehended the evidence of Dr. Gojer. He pointed to twelve instances of what he submitted were misapprehensions on the part of the Hearing Officer. He argued that the central misapprehension was that the Hearing Officer ignored all external factors at play and viewed the misconduct solely in terms of one internal factor, which was not in Dr. Gojer’s evidence: a character flaw.

35. Mr. Butt’s submissions focussed on three main themes:

1. The Hearing Officer should have considered the psycho-social dynamics of the BBM Group as mitigating and accorded more weight to Dr. Gojer’s evidence that the Appellants were rehabilitated; and

2. The Hearing Officer misapprehended Dr. Gojer’s evidence in considering it an aggravating factor that there were multiple offences occurring over a period of time, since Dr. Gojer testified that this was caused by the psycho-social dynamics of the group.

3. The Hearing Officer misapprehended the evidence of Dr. Gojer in finding that the Appellants had a “character flaw”.

36. Ultimately, Mr. Butt argued that if the Hearing Officer had properly understood the evidence of Dr. Gojer, he would have reached a different conclusion, namely that dismissal was not warranted.

37. We disagree that the Hearing Office misapprehended Dr. Gojer’s evidence. His reasons demonstrate that he understood the evidence, considered it carefully and choose to rely on some but not all of it, in determining the appropriate penalty in this case. The twelve examples that Mr. Butt pointed to did not, either individually or when considered as a whole, reflect a misapprehension of the evidence. We address the three central themes of Mr. Butt’s submissions in more detail below.

38. A decision-maker is not required to accept evidence of an expert, even when the expert evidence is uncontradicted. It is up to the decision-maker to determine the weight to be accorded to an expert’s evidence. The final decision rests with the decision-maker, not the expert. As the Ontario Court of Appeal stated in R v. M.(R.) 2007 Carswell Ont. 8013 (C.A.) at paragraph 41: “Just as with any other witness, it is open to a trial judge to accept some, all or none of an expert witness’s evidence.” (Leave to appeal to SCC refused 2008 Carswell Ont. 3171)

39. The Hearing Officer relied on Dr. Gojer’s assessment that none of the Appellants had a mental illness, pathology or substance abuse disorder which could have contributed to their misconduct. Reliance on this evidence made sense given that the Hearing Officer was not a psychiatrist and the psychiatric assessments fell squarely within the expertise of Dr. Gojer. Based on Dr. Gojer’s assessment that the Appellants did not have a mental illness, pathology or substance abuse disorder, the Hearing Officer concluded that there was no evidence of disability or handicap which would warrant mitigation.

40. In contrast to the evidence on whether the Appellants had a mental illness or psychiatric condition, the Hearing Officer did not require expert evidence to interpret peer pressure or group dynamics in the police force. The determination of what is a mitigating factor was entirely in the purview of the Hearing Officer. Moreover, Dr. Gojer readily acknowledged that he was not an expert in police culture and had no knowledge of the sensitivity training the Appellants were given.

41. The Hearing Officer clearly explained why he did not consider peer pressure or the psycho-social dynamics of group behavior, as described by Dr. Gojer, to be mitigating. Specifically, the Hearing Officer indicated that police officers, because of the office they hold, are held to a higher standard than members of the general public:

… Police Officers are the gatekeepers to the Justice System and hold an elevated position in the community and, as such, a higher expectation is placed on them. … Police officers must respect the law, their duty, and themselves. Police officers are the keepers of the community trust and are provided with arrest powers and the ability to use force. They are quintessential practitioners of the common good. As such, they must stand for human rights and equality of treatment under the law for all, as these officers swore to do! If not, their behavior will taint the reputation of the police service and likewise the community. (page 28)

42. Given the evidence before him, this was an entirely reasonable determination.

43. We disagree with Mr. Butt that the Hearing Officer misunderstood Dr. Gojer’s evidence when he considered it an aggravating factor that the misconduct was not an isolated incident but a series of acts over a period of time. The Hearing Officer’s reasons demonstrate that he understood Dr. Gojer’s explanation of the psycho-social dynamics of group behavior, but was not prepared to rely on it to overlook or attribute less weight to the fact that there were multiple acts of misconduct over a protracted time period. As the Hearing Officer stated:

These misconducts individually are serious and worthy of higher dispositions. Together in their totality, these complex and connected acts are egregious when considering the vulnerability of the targeted victims. (page 31)

44. Repeated misconduct over time is aggravating and there was no error in principle or misapprehension of evidence in the Hearing Officer treating the multiple acts of misconduct as such.

45. We also disagree that the Hearing Officer misapprehended Dr. Gojer’s evidence when he said that the Appellants had a “character flaw”, were “weak of character and easily swayed”, and either failed to possess or chose to set aside “noble attributes”. When Dr. Gojer testified that the Appellants did not have a character flaw, he was discussing it in the context of a personality disorder, pathology or psychiatric condition. When the prosecution suggested to Dr. Gojer that because the Appellants did not suffer from a psychiatric condition, the misconduct reflected on their character, he responded that it was a “characterological” problem for the time they were involved in the BBM Group.” Dr. Gojer also testified that the officers exhibited “poor judgment”, made “bad mistakes” and “gave themselves permission” to be disrespectful through the BBM Group.

46. We agree with Ms. Bordeleau that the Hearing Officer was using the term “character flaw” as a lay person, and he was by no means suggesting that the Appellants had a character flaw that amounted to a psychiatric condition or mental illness. His reasons make clear that he accepted Dr. Gojer’s evidence that the Appellants did not suffer from a mental illness, pathology or psychiatric condition of any kind. Because the Appellants were swayed into discriminatory behavior, exercised poor judgment, made bad mistakes and gave themselves permission to be disrespectful through the BBM Group, the Hearing Officer found they did not demonstrate the high standards of character required of police officers.

47. Contrary to what was submitted by Mr. Black, the Hearing Officer did not determine that dismissal was warranted because of a “character flaw” on the part of the Appellants. The Hearing Officer determined that dismissal was warranted because he deemed the multiple acts of misconduct over a period of time to be egregious and the damage to the reputation of the Service to be too great, if the Appellants were to remain employed. This was an entirely reasonable conclusion on the evidence before him.

48. While recognizing that no one can predict future behavior with certainty, the Hearing Officer accepted Dr. Gojer’s evidence that the Appellants are different people today than when they belonged to the BBM Group and acknowledged their extensive rehabilitation efforts as mitigating. However the Hearing Officer weighed rehabilitation and other mitigating factors against the seriousness of the misconduct, as it related to the reputation of the police service. He concluded that the misconduct was so egregious, the damage to the reputation of the Service would be too great if the Appellants were permitted to remain on the Service:

[T]he scale is irrevocably tilted towards the seriousness of the misconduct and the negative influence on the reputation of the police service should these three Constables continue. (page 32)

49. The closer an expert’s evidence to the ultimate issue in a case, the greater the scrutiny that should be applied to the evidence - see: R v. Mohan, [1994] 2 S.C.R. 9, 1994 CanLII 80 at paras. 13 & 14.

50. In this case, the ultimate issue was whether the Appellants could still be useful members of the Service. This determination was not one which required Dr. Gojer’s expertise. Rather, the determination fell squarely within the expertise of the Hearing Officer, and the Hearing Officer did not misapprehend any of the expert’s evidence in weighing the disposition factors and concluding that dismissal was warranted.

Did the Hearing Officer Misapprehend Evidence when Referring to “Targeting” Members of the Public?

51. Mr. Black submitted that the Hearing Officer referred to the “targeting” and “victimizing” of members of the public and members of the Service throughout his decision. According to Mr. Black, “targeting” implies knowledge and advance planning, and there was no evidence Const. Green planned in advance to target, victimize, hurt or humiliate the persons he referred to through the BBM Group. Mr. Black stated that the persons who were the butt of mean-spirited and inappropriate comments were not supposed to find out about them, as the contents of the BBM Group were meant to be a secret.

52. At no point in the decision does the Hearing Officer suggest that there was advance planning with respect to the misconduct. We agree with Ms. Bordeleau that the Hearing Officer used the word “target” because the individuals who were the subject of the discriminatory and degrading comments were, for the most part, individuals with mental health problems or disabilities, women who were in a partial or complete state of nudity, or who were ridiculed for their appearance, and men who were ridiculed for their sexuality or perceived sexual orientation. The comments about information found in CPIC and PARIS focused on ethnic origins and names.

53. Const. Green acknowledged to Dr. Gojer that the postings “singled out groups”. (Gojer: Green September 23 Report, p. 3)

54. We find no evidence in the Hearing Officer’s reasons that he disciplined Const. Green for anything other than his actual actions, namely, posting discriminatory and degrading materials to the BBM Group, refraining from reporting Const. Knox’s criminal activities, misusing information from CPIC and PARIS and lying to investigators about his knowledge.

55. On the subject of Const. Green never intending the individuals, who were the subject of the discriminatory and degrading comments, to find out about them, given the medium the BBM Group was using (email carried over the Internet), it should have been apparent that the messages could be forwarded (intentionally or unintentionally) to individuals outside the BBM Group and even end up going viral.

Did the Hearing Officer Err in Considering Penalty Factors?

Guilty Plea and Letter of Apology

56. Mr. Black argued that the Hearing Officer failed to appreciate the significance of Const. Green’s guilty plea, as an unqualified admission of wrongdoing and an acceptance of responsibility. He submitted that the Hearing Officer made only brief reference to the guilty plea and gave no indication that he fully appreciated its significance.

57. He also argued that the Hearing Officer diminished the apology Const. Green wrote to the community and to the Service by stating that the apology occurred late in the process (in the fifth interview) and by asking the question: “what else could [he] do when faced with so much evidence of wrongdoing.”

58. Mr. Black submitted that it is an error in principle to diminish the impact of a guilty plea and apology, in terms of mitigation of penalty, by suggesting the officer could do little else. He relied on Purbrick and the Ontario Provincial Police, (May 25, 2011, OCCPS); [2018] O.J. No. 1821 (Div. Ct.);; and Carson and Pembroke Police Service, (2001) 3 O.P.R. 1479.

59. We disagree. The Hearing Officer stated that the letter of apology was mitigating and found it “laudable that the officers sought a resolution, and pled guilty.” The Hearing Officer did not err in principle, by finding that the level of mitigation was tempered by the circumstances in which the apology and guilty plea were given.

60. The Hearing Officer is entitled to consider the circumstances surrounding the guilty plea and apology when determining what level of mitigation, if any, to attribute to them. Surrounding circumstances include the timing of the apology and the strength of the case against the accused. A guilty plea or apology does not result in automatic and unqualified mitigation. See Nelles and Cobourg Police Service, (May 3, 2007, OCCPS) at para 107; Moore and York Regional Police Service, (March 26, 2001, OCCPS); Lalani v. University of Toronto, 2014 ONSC 644 at para 9; and R v. Haly, 2012 ONSC 2302 at 33.

Victim Impact Statement

61. Mr. Black highlighted the following criminal law cases which point to the fact that a victim impact statement is not for vengeance, emotion or anger: R. v. Gabriel, (1999) 1999 CanLII 15050 (ON SC), 137 C.C.C. (3d) 1 (Ont. Sup. Ct.); R v. Jackson, (2002) 2002 CanLII 41524 (ON CA), 163 C.C.C. (3d) 451 (Ont. C.A.); and R v. Brenner, (2000) 2000 BCCA 345, 146 C.C.C. (3d) 59 (B.C.C.A).

62. He argued that JJ’s letter, which she read aloud at the hearing, exceeded anything that is permissible in a victim impact statement and should not have been allowed or relied upon.

63. Mr. Black submitted that JJ insulted, humiliated and embarrassed Const. Green in her statement. He also submitted that the statement completely ignored the fact that it had never been the intention of the officers that anyone else would become aware of their inappropriate comments about her.

64. Mr. Black submitted that the Hearing Officer found nothing objectionable or excessive in anything said by JJ in her statement, but instead described it in laudable terms:

The impact on four of the victims in this case was well articulated with the reading in of the victim impact statements. One victim addressed this tribunal and the officers by reading her own statement. This took courage, surely, but more so this speaks to the deep impact the actions of the officers had on that victim. These victim impact statements are considered aggravating in this matter. (page 19)

65. We agree with Ms. Bordeleau that the Criminal Code provisions relating to victim impact statements, and the criminal case law interpreting them, are not relevant to proceedings under the Act. The Hearing Officer had broad discretion under section 15 of the Statutory Powers Procedure Act R.S.O. 1990, c. S-22 to accept relevant evidence. In addition, we note that the defence did not object to JJ reading her victim impact statement at the hearing or to any portion of the statement.

66. We found no evidence that the Hearing Officer used JJ’s victim impact statement for any purpose other than to assess the impact of the misconduct on her. The Hearing Officer specifically noted and took into consideration that victims’ emotions were involved in preparing the statements:

This tribunal can appreciate that they [victim impact statements] are emotional and that this emotion can magnify the actual impact as identified by Mr. Butt, however, they do identify for this tribunal the harm done to the victims. (page 19)

67. The Hearing Officer reached the conclusion that dismissal was warranted based on the seriousness of the misconduct and the impact on the reputation of the Service. He relied on the victim impact statements solely for the purpose of assessing the harm which the Appellants’ misconduct caused to the victims. He did not rely on JJ’s opinion that the Appellants are not worthy of being police officers in reaching his decision as to the appropriate penalty.

Seriousness of Misconduct

68. Mr. Black submitted that the Hearing Officer stated at the beginning of his reasons that the photographs could be considered obscene and his denunciation of the Appellants grossly exaggerated the potential impact of the photographs.

69. According to Mr. Black, it was appropriate not to publish the photographs to avoid further embarrassment to the victims, but to suggest that publication of the photographs would be “harmful to the morals of the community”, as the Hearing Officer stated at page 29 of the Decision, was a “huge exaggeration”, “incorrect” and “baseless”.

70. Mr. Black stated that some of the photographs included persons in various stages of nudity and others showed persons in “pathetic circumstances”, but none of the photographs showed sexual contact or intercourse, and none were “remotely as graphic or sexually revealing” as the photographs anyone can access on the internet.

71. We find no error in principle in the Hearing Officer’s characterization of the seriousness of the photographs and misconduct. Mr. Black’s client, Const. Green, admitted to the seriousness of the postings, and characterized them as “offensive, degrading and demeaning and singled out groups”. (Gojer: Green September 23 Report, p. 3)

72. According to the ASF signed by Const. Green, he took photographs of and used offensive and inappropriate language in reference to members of the public and the Service, and then posted them to the BBM Group as set out in the ASF as follows:

22. Attached as Photograph 9, Appendix F to this Agreed Statement of Fact is a photograph taken by Constable Green on December 15th, 2011 of G.G., a male with mental health issues, as he lay on a gurney at Grand River Hospital awaiting medical attention. Constable Green posted the image to the P4Div3 BBM Group with the caption: “I look pretty good…”

23. On December 16th, 2011, Constable Green took a photograph of H.H., as he lay on a gurney at Hamilton hospital in critical condition from multiple stab wounds. Constable Green posted the image to the P4Div3 BBM Group with the caption: “Stabby McStabby … unfortunately not VSA.” Attached as Photograph 10, Appendix F to this Agreed Statement of Fact is the photograph.

24. On January 4th, 2011, Constable Green took three photographs of pornographic material and the medical emergency scene involving I.I. Constable Green posted the images to the P4Div3 BBM Group with the caption: “969 call – took a header down stairs after lookin at titties”, “Blood everywhere,” and “And more”. Attached as Photographs 11, 12 and 13, Appendix F to this Agreed Statement of Fact are the Photographs.

25. On February 20th, 2011, Constable Green took a photograph of Constable Knox asleep, on duty, behind the wheel of a cruiser. Constable Green posted the image to the P4Div3 BBM Group with the caption: “I thought he was dead when I drove by”. Attached as Photograph 14, Appendix F to this Agreed Statement of Fact is the photograph.

26. While Constable Green didn’t send any messages or post pictures in this regard, he stated that as a member of the PDiv3 BBM Group he and the other members referred to J.J. by the name “Whistle Lips” due to J.J.’s cleft lip. They also marginalized K.K. because of their perceived sexual orientation of K.K.

73. The Hearing Officer did not say that the photographs were serious or harmful to the morals of the community simply because some of them were “sexual” or showed nudity. The seriousness of the photographs and the harm to the community related not just to what they depicted, but also to the fact that many of them were taken while the officers were on duty, without the consent of the subjects and included captions which were offensive, discriminatory and ridiculed the subjects of the photographs, citizens these officers were supposed to be “serving and protecting.” The Appellants took an oath to serve the public, and they put aside this oath to degrade members of the public through the photographs and captions, violating the trust that the public places in the police. It was this violation of the public trust which also made the photographs harmful to the morals of the community.

74. What is more, the overall seriousness of the Appellants’ misconduct did not relate exclusively to the posting of photographs to the BBM Group. In the case of Const. Green, the misconduct had three other dimensions to it, each one of which was very serious.

75. First, Const. Green was on duty with Const. Knox when Const. Knox assaulted two different citizens. Const. Green was also on duty with Const. Knox when Const. Knox stole intimate photographs from a suspect’s cell phone. Further, Const. Green also became aware of other thefts by Const. Knox of photographs and a sex toy. Nevertheless, Const. Green failed to notify a supervisory member of the Service of Const. Green’s criminal activities.

76. Second, Const. Green took and posted data from CPIC and PARIS to the BBM Group for entertainment purposes.

77. Third, Const. Green engaged in ongoing deceitful behavior over several months. Specifically, he lied to both criminal and Professional Standards investigators on five separate occasions between April and September 2011, including one occasion on which he took a polygraph.

Did the Hearing Officer apply the wrong test for dismissal?

78. Mr. Black submitted that the test for dismissal, as set out in Favretto, supra, and approved by the Ontario Court of Appeal at [2004] O.J. No. 4248, 2004 CanLII 34173 (ON CA), was completely ignored by the Hearing Officer. In the Favretto case, supra, the Commission held:

A penalty must be tailored to both punish and deter while not causing undue or excessive hardship. The penalty of dismissal is the ultimate penalty. It should be reserved for the most serious offences committed by a police officer where there is no hope for rehabilitation, there are no significant mitigating factors and where the police officer is of no further value to the police service or the community in general.

79. Mr. Black argued that the Hearing Officer clearly failed to apply this test when he accepted Dr. Gojer’s evidence that the Appellants were rehabilitated and that they have “realized their mistakes and taken corrective action”.

80. Ms. Bordeleau argued that rehabilitation is an important consideration in the context of determining the appropriate disposition for police misconduct but it is not a “trump card”. She submitted that rehabilitation is only one of the three key factors identified in Williams and Ontario Provincial Police, supra. The other factors are seriousness of the offence and the damage to the reputation of the police force.

81. Ms. Bordeleau relied on the following cases to emphasize her point that even where a police officer can demonstrate steps taken towards rehabilitation or successful treatment, dismissal may be appropriate for serious misconduct: Williams, supra; Hall and Ottawa Police Service, (December 5, 2007, OCCPS) aff’d 2008 CanLII 65766 (ON SCDC), 2008 CarswellOnt 7611 (Div. Ct); leave to appeal refused April 3, 2009 (C.A.); Venables and York Regional Police Service, (October 3, 2008, OCCPS); and Bovell and Toronto Police Service, (July 9, 2012, OCPC).

82. We agree with Ms. Bordeleau that the Hearing Officer did not err in applying the test in Williams, supra, which is consistent with the approach taken in other dismissal cases since Farvetto including Hall and Ottawa Police Service, supra; Venables and York Regional Police Service, supra; and Bovell and Toronto Police Service, supra.

83. The Hearing Officer weighed the rehabilitation of the officers and other mitigating factors, such as the guilty pleas, the letters of apology, the character references, and their work history, against the seriousness of the misconduct and the damage to the reputation of the service. He concluded that the seriousness of the multiple acts of misconduct over a protracted time period and the damage to the reputation of the Service, should the Appellants continue in their employment, outweighed the rehabilitation efforts and other mitigating factors. He explained why he considered the misconduct to be egregious and the Appellants to be of no value to the Service, notwithstanding their rehabilitation, as follows:

These officers have clearly violated the trust their office provides; they put aside their own values, their training, and their oath to serve, in order to belong to a “BBM” group that turned to degrading, mocking and disgusting behavior. They committed crimes or stood by while others did, they targeted their own and then if that was not enough lied about their involvement, repeatedly. These officers are compromised in any future efforts to assist victims, after creating victims themselves. … They have violated the public trust to such a degree that they are unworthy of that trust. The rehabilitation efforts do not tip the scale from the aggravating severity of the misconduct to the mitigating rehabilitation. The misconducts are much too serious to allow them to stay employed with the Service…. (page 33) (emphasis added)

Was the Hearing Officer’s decision on dismissal inconsistent with other similar cases?

84. Mr. Black argued that the Hearing Officer’s erroneous approach to consistency of disposition can be seen in his analysis of the decisions of Constable Robert Coon and the Toronto Police Service, (April 10, 2003, OCCPS); Sergeant Ronald Delano and the Niagara Regional Police Service, (December 4, 1998, OCCPS); Constable Williams, supra, and Senior Constable Alexander Krug and the Ottawa Police Service, (January 21, 2003, OCCPS). According to Mr. Black, all of these cases are distinguishable on the facts.

85. We agree with Mr. Black that the facts of the aforementioned cases are different. However, the Hearing Officer noted these differences. In fact, the Hearing Officer specifically acknowledged with respect to Coon and Williams, supra, that the “differences outweigh the similarities” between these cases and the present cases. The Hearing Officer also acknowledged with respect Delano and Krug, supra, that the facts of these cases and the present case are dissimilar. Nevertheless, the Hearing Officer found that the cases provided some guidance to him.

86. The guidance he took from the cases was as follows:

• In Coon, supra, the adjudicator considered multiple breaches of the use of CPIC and records information to be aggravating and also recognized that police officers need to be better than ordinary citizens.
• In Delano, supra, the officer had a good work history, no prior discipline and pled guilty to the misconduct, but the misconduct occurred over a period of time and was not an isolated, compulsive act.
• In Williams, supra, the reference to the Oath of Office taken is similar to the concerns voiced in the present case.
• In Krug, supra, the Commission stated that aggravating factors can diminish mitigating factors and emphasized the importance of police officers respecting and assisting victims of crime.

87. We do not find that the Hearing Officer erred in seeking guidance from these dismissal cases, particularly when he explicitly recognized that the facts of these cases and the present case are not analogous.

88. Mr. Black also argued that the Hearing Officer’s decision in this case cannot be reconciled with the dispositions he imposed on other officers in the BBM Group, specifically Const. Mahn and the Waterloo Regional Police Service, (December 31, 2012); Const. Mast and the Waterloo Regional Police Service, (December 17, 2012) and Const. Vanderheide and the Waterloo Regional Police Service, (December 17, 2012).

89. We have reviewed the facts of the cases involving the other officers in the BBM Group and find that there were a number of points on which it was reasonable for the Hearing Officer to dispose of the Appellants’ cases differently.

90. In particular, Const. Green and Const. Kobayashi were convicted of deceit and their behaviour reflected a long pattern of deceit that was not present in the cases of Const. Mahn, Const. Mast and Const. Vanderheide. Const. Kobayashi was deceitful to criminal and Professional Standards investigators on three separate occasions and Const. Green was deceitful to criminal and Professionals standards investigators on five separate occasions. The ongoing deceit, on multiple occasions over the course of several months, made the misconduct of Const. Green and Const. Kobayashi more serious than the misconduct of the other BBM Group officers and was a reasonable basis on which to justify the more severe penalty of dismissal.

91. Const. Vongkamphou’s misconduct was much more extensive and serious than all of the other officers. Not only did he plead guilty to ten counts of Discreditable Conduct, one count of Neglect of Duty and one count of Deceit, but he was also convicted criminally for obstructing justice (removing and destroying evidence from Const. Knox’s locker). Again, the Hearing Officer’s disposition was entirely reasonable based on the facts before him.

92. In reaching the decision that dismissal was warranted, the Hearing Officer considered the elements of the Williams case, supra, and the appropriate principles with respect to aggravation and mitigation in a number of cases. His decision was supported by the evidence and within the range of appropriate sentences. There is no basis on which to interfere with his conclusions.

CONCLUSION

93. For the above reasons, we answer questions 2 to 6 in paragraph 31 in the negative.

94. We find that the Hearing Officer fairly and impartially applied the relevant dispositional principles to the present case. He provided thorough and clearly articulated reasons for the penalty he imposed, and when they are considered as a whole, these reasons adequately support his decision.

95. The appeals are therefore dismissed.

DATED AT TORONTO THIS 11th DAY OF JUNE, 2015

[Original signed by]

Jacqueline Castel Member, OCPC

Stephen Jovanovic Member, OCPC

Marie Fortier Member, OCPC

Footnotes

1. 1Initials are used for anonymization purposes