Horton v. Ontario Provincial Police, 2015 ONCPC 16

ONTARIO CIVILIAN POLICE COMMISSION

DATE: 2015-09-15

FILE: 2015 ONCPC 16

CASE NAME: Horton and Ontario Provincial Police

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

BETWEEN:

POLICE CONSTABLE (ROBERT) BRYAN HORTON APPELLANT

-and-

ONTARIO PROVINCIAL POLICE RESPONDENT

DECISION

Panel: Roy Conacher, Q.C., Vice-Chair Winston Tinglin, Member

Hearing Date: May 8, 2015

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

APPEARANCES: James A. Girvin, Counsel for the Appellant Christopher Diana, Counsel for the Respondent

Introduction

1. Provincial Constable Robert Bryan Horton (“Const. Horton” or the “Appellant”) is a police officer employed by the Ontario Provincial Police (the “OPP” or “Respondent”) and appeals to the Commission from a disciplinary decision made by Inspector P.L. Barager, (the “Hearing Officer”) dated March 3, 2014, finding the Appellant guilty of misconduct, namely Discreditable Conduct, contrary to section 2 (1)(a)(xi) of the Code of Conduct, Ontario Regulation 268/10 and therefore contrary to section 80 (1) of the Police Services Act (the “Act”).

2. The Appellant also appeals the penalty issued by the Hearing Officer on August 20, 2014 imposing a demotion from First Class Constable to Second Class Constable for a period of one (1) year pursuant to Section 85 (1) (c) of the Act. Upon successful completion of the demotion the Appellant was to be re-instated to the position of First Class Constable.

3. The particulars of the charge against Const. Horton are that he acted in a manner likely to bring discredit upon the reputation of the OPP in that, while off-duty, on or about May 19, 2012, he removed material, commonly referred to as mulch or wood chips, from the property of Westlane Secondary School, (the ”school”), Niagara Falls, Ontario without proper or appropriate authority and while off duty on or about June 8, 2012, he approached Constable Leslie Bittman of the Niagara Regional Police Service ( the NRP”), the officer assigned to investigate the incident, and told her words to the effect “I just took the left overs that were lying in the road”.

Decision

4. The appeals of the finding of guilt and penalty are dismissed.

Background

5. Const. Horton has been a police officer with the OPP for almost 27 years. While off-duty on or about May 19, 2012, he removed a load of wood chips, commonly called mulch, from the property of the school without permission and spread it in the garden of his personal residence.

6. The Principal of the school received information that someone had taken mulch from the school property and she subsequently made a complaint to the NRP and an investigation into the incident was initiated. The Principal did not know at the time who had removed the mulch.

7. In the course of the ensuing investigation, Const. Horton acknowledged that he was the person who had removed the mulch. According to the investigating officer, Const. Leslie Bittman, the Appellant volunteered, at first, that “I just took the leftovers that were lying in the road.” However, when challenged about the accuracy of that comment, he said “the Principal let me take some mulch last year” and further, “I thought it would just be okay and I would give him some more later”. Based upon these remarks, Const. Bittman formed the impression that the Appellant may have received permission to take the mulch from the school but on further investigation with the Principal and other witnesses, she concluded that was not the case.

8. In August of 2012, the Niagara Region Detachment Commander of the OPP received information that the NRP had commenced an investigation into an alleged theft of mulch involving Const. Horton. As a result of this information the OPP initiated an internal complaint but held that complaint process pending the conclusion of the NRP’s criminal investigation.

9. In September 2012, at the request of the NRP, Const. Horton voluntarily attended an interview, which was videotaped and transcribed. At that time, he also submitted a pre-prepared written statement of his own outlining his description of the circumstances. In the interview and in the statement, he acknowledged responsibility for removing the mulch from the school premises. He took the position that he had simply taken back some of the mulch that he had placed on the school property several days earlier. He believed that he had the right to enter upon the property and retrieve some of the mulch that he had previously donated or gifted to the school. His position appeared to be that he was entitled to remove it until the school actually placed the mulch in the garden or flowerbeds of the school. He stated that he had donated mulch to the school in previous years with the prior knowledge and permission of the person he believed was the Principal.

10. By letter dated October 12, 2012, the NRP Chief of Police advised the Commissioner of the OPP of the results of the NRP criminal investigation. The letter noted that Const. Horton was confirmed as the person who took the mulch from the school property. It also noted that a Crown Attorney had been consulted and had advised that there was a reasonable prospect of obtaining a conviction for theft but diversion to direct accountability was recommended.

11. The OPP’s Professional Standards Bureau followed up with their own investigation and Const. Horton was subsequently charged with misconduct, namely, the count of Discreditable Conduct, as outlined above.

12. Const. Horton pled not guilty and after a disciplinary hearing, was found guilty and sentenced as previously described.

13. In her twenty-five page decision, the Hearing Officer extensively reviewed the evidence, noting that certain facts were not disputed, namely, that Const. Horton had received free mulch from the City of Niagara Falls and after using most of it on his own property, took and donated an amount to the Westlane Secondary School, that he subsequently realized that he needed more mulch and several days later re-entered upon the school property without obtaining permission from the existing school authorities, and retrieved one garden trailer and one wheelbarrow full of the mulch and used it on his own yard. It was also not disputed that he spoke to officers from NRP, including Const. Bittman.

Appellant’s Submissions

14. Mr. Girvin made the following submissions:

• The decision of the Hearing Officer is fundamentally flawed by being void of evidentiary foundation, and the evidence that was presented is neither weighty, cogent, reliable nor clear and convincing to support a finding of misconduct.
• The assessment of witnesses’ credibility by the Hearing Officer, the findings of fact and the reasoning in her decision contained legal errors and cannot reasonably be accepted.
• While it is not the role of the Commission to second- guess the decision of a hearing officer, it is open to the Commission to reach a different conclusion and vary a decision if there is no evidentiary foundation for the findings or if clear and convincing evidence has not been presented or if there has been a misapprehension or misinterpretation of the factual evidence or the applicable law. Lloyd v. London Police Service (1990) O.P.R. 1345 (OCCPS) 1351, Blowes-Aybar and Toronto (City) Police Service 2004 CanLII 34451 (ON SCDC), [2004] O.J. No. 1655.
• The Hearing Officer misunderstood and misapplied the test for determining issues of credibility, commonly referred to as the ‘O’Halloran test’. She relied upon a few of the factors in Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) but failed to consider the more recent description of the test as set out in Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services 1985 CanLII 2053 (ON HCJ), [1985] O.J. No. 2578. She failed to apply the test consistently and fairly to all witnesses.
• By allowing the prosecution to submit the Appellant’s video and written statement into evidence after the completion of the testimony of the Appellant, including his cross-examination, for the purpose of highlighting the inconsistencies or contradictions in his evidence, that action of the Hearing Officer contravened the well-established rule in Browne and Dunn, (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) since the Appellant was not advised nor cross-examined on the inconsistencies nor allowed to respond. That evidence undermined the fairness of the hearing. Gottschalk and Toronto Police Service, January 29, 2003 (OCCPS#03-12).
• The Hearing Officer failed to properly assess the credibility of Const. Bittman and specifically, the influence of her superiors on her investigation, the inconsistencies in her testimony, her evasiveness, defensiveness and lack of forthrightness in relation to her note-taking. The Hearing Officer’s lack of any critical analysis of Const. Bittman’s note-taking and the over-reliance upon her testimony, including reliance on her notes and the information from anonymous persons, raises concerns about the accuracy and reliability of such evidence.
• The Hearing Officer accepted hearsay evidence, namely, the letter from the Chief of NRP and the information received by Const. Bittman from two anonymous persons, without indicating the weight, if any, given to such evidence in reaching her decision. This evidence does not meet the clear and convincing standard. Milton and Toronto Police Service, April 7, 2004 (OCCPS #04-06).
• The Hearing Officer failed to make any finding that the Appellant needed permission to retrieve the mulch and therefore lacked the evidentiary basis to make a finding against him.
• The decision is fraught with misapprehensions of the evidence and legal analysis and therefore lacks the proper foundation to fairly assess an appropriate penalty.
• The Hearing Officer acted unfairly as she had no documentary evidence before her that the Appellant had been served with the required Notice under section 85 (4) of the Act that the Respondent intended to seek a demotion as a possible penalty and therefore the imposition of a demotion was void ab initio. Andrews and Midland Police Service May 1, 2003 (OCCPS).
• Lastly, the Hearing Officer misstated and misapplied the factors to be considered in assessing penalty with the result that the penalty was harsh and excessive. Krug and Ottawa Police Service, January 21, 2003 (OCCPS); Deviney and Toronto Police Service, February 10, 1999 (OCCPS).
• Mr. Girvin requested that the finding of guilty be revoked and replaced by a finding of not guilty or alternatively, that the one year demotion from First Class Constable to Second Class Constable be found void and replaced with forfeiture of 20 to 40 hours pay.

Respondent’s Submissions

15. Mr. Diana, for the Respondent, made the following submissions:

• The Appellant was found guilty of Discreditable conduct for doing two acts, namely, (i) removing mulch from the school property without permission and (ii) trying to mislead the investigating officer, Const. Bittman, by stating he only took leftover mulch lying in the road.
• It was uncontested that the Appellant removed the mulch from the school property without permission. There was no need to make a separate finding of fact that permission was needed as the mulch had been donated to the school, was on the school property and Const. Horton had no permission to enter and retrieve what he had donated. The Appellant’s theory of ownership is without merit legally and once the mulch was donated, it became the school’s property.
• The Hearing Officer’s finding that the Appellant did not have permission was reasonable.
• Regarding the Appellant’s alleged attempt to mislead Const. Bittman, Mr. Diana argued that the Hearing Officer made a reasonable finding in accepting the investigating officer’s testimony in reliance upon her notes which the Hearing Officer accepted as having been made contemporaneously to the conversation with the Appellant. That evidence was reasonably accepted and preferred over the Appellant’s recollections, which were not supported by any such contemporaneous notes.
• On the issue of findings of credibility, the Hearing Officer neither erred in the application of the O’Halloran test nor in accepting hearsay evidence. While making no explicit reference to factors, beyond those in the excerpt referenced in the Faryna v. Chorny case, the Hearing Officer did apply the proper principles and carefully reviewed the testimony of each of the witnesses indicating to what extent she accepted or rejected their evidence and gave clear reasons for so doing.
• The Hearing Officer was entitled to receive and admit relevant hearsay evidence. She did not give such evidence significant weight in concluding that the Appellant took the mulch without permission.
• The Hearing Officer’s finding of guilt is reasonable and based upon clear, cogent and convincing evidence appropriately analyzed and weighed and with extensive reasons that are tenable, logically articulated which support the conclusions reached.
• The standard of review with respect to findings of fact and credibility is reasonableness. The standard of review with respect to the interpretation and application of the law is correctness. McCormick v. Greater Sudbury Police Service [2010] O.J. No. 793 (Div. Ct.); McPhee v. Brantford Police Service , August 3, 2012(OCPC); Burrows v. Ontario Provincial Police, August 13, 2012 (OCPC);
• Considerable deference is to be given to the decision of a hearing officer on findings of fact and credibility. Blowes-Aybar, supra.
• The Hearing Officer did not allow a contravention of the rule in Browne v. Dunn. The Appellant’s video interview, the transcript and Appellant’s written statement were introduced and entered as exhibits through the testimony of Det/Sgt. Kevin Connor, the OPP Professional Standards officer, prior to the Appellant’s testimony. The Appellant was, therefore, afforded the opportunity to address any inconsistencies in the evidence and the Hearing Officer was entitled to consider any discrepancies between the written and audio statements and the Appellant’s viva voce evidence.
• The Appellant was served with a Notice and took no issue at the hearing with the fact that he had received a copy of the Notice of Intention to seek a possible demotion. There is no requirement in section 85 of the Act that proof of service of a copy of such Notice must be filed at a disciplinary hearing. It was not raised and if it had been, the prosecution could simply have filed it. The Appellant cannot “lie in the weeds” and raise the argument now, not having raised it before the Hearing Officer.
• In terms of the penalty imposed, the Hearing Officer correctly identified, reviewed and considered each of the appropriate factors as they applied in respect of the Appellant’s misconduct and the effect upon the reputation of the OPP.
• The Respondent requests that the appeals of the Hearing Officer’s decisions on findings and penalty be dismissed.

The Issues

16. The issues on this appeal are:

(a) Did the Hearing Officer misapprehend the evidence or otherwise commit any error of fact or law in determining that the Appellant was guilty of discreditable conduct?

(b) Did the Hearing Officer err in making her findings on credibility of the witnesses?

(c) Specifically, did the Hearing Officer err in her use of the Appellant’s prior statements in assessing his credibility?

(d) Did the Hearing Officer err in her consideration of hearsay evidence?

(e) Did the Hearing Officer err in failing to confirm whether the Appellant received any notice as required under section 85 (4) of the Act of the intention to seek demotion?

(f) Did the Hearing Officer err in her application of the principles of sentencing?

Analysis

17. The standard of review that the Commission is to apply on an appeal is reasonableness for questions of fact and correctness for questions of law: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No.9; Ontario Provincial Police and Purbrick, 2013 ONSC 2276, (Div. Ct.) at para. 15 and Ottawa Police Services v. Diafwila, 2015 ONSC 931 (Div. Ct.).

18. In judicial review, the Supreme Court of Canada has defined reasonableness to be 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. Dunsmuir v. New Brunswick, supra.

19. In certain limited cases, it may be open to the panel to reach a different conclusion from the trier of fact. However, the panel should only intervene if there has been an error in principle, or relevant factors have been ignored. Purbrick, supra; Williams v. Ontario Provincial Police, December 4, 1995 (OCCPS); Favretto and Ontario Provincial Police, February 13, 2002 (OCCPS); Karklins and Toronto Police Service, September 25, 2007 (OCCPS).

20. Our role on appeal is not to second-guess the decision of the 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 an intelligible, transparent and logical manner. Purbrick, supra: Dunsmuir, supra; Precious and Hamilton Police (2002) 3 O.P.R. 1561 (OCCPS).

21. An appeal to the Commission is on the record. We do not have the advantage of hearing and observing the witnesses as they testify. Therefore, deference must be accorded to the Hearing Officer’s findings unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence. Purbrick, supra; Blowes-Aybar, supra.

22. Section 80 (2) of the Act provides that a police officer shall not be found guilty of misconduct under subsection (1) if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force. Misconduct is defined under section 2 (1)(a)(xi) of the Code as conduct where a police officer acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force of which the officer is a member. [emphasis added].

23. It is not disputed that the Appellant was off-duty when the alleged misconduct was committed. It is well settled that a police officer is held to higher standard of conduct than a member of the public not only while being on duty but also when off-duty. That is so by reason of the office held, the powers granted and the need to maintain the public trust in and respect for the police service. Buckle v. Ontario (Provincial Police) [2006] O.J. No. 554 (Div. Ct.) at para.7; Delano and Niagara Regional Police Service, December 4, 1998 (OCPC #98-14); Reilly and Brockville Police Service, May 12, 1997 (OCPC #97-07).

24. In her lengthy decision setting out the findings, the Hearing Officer considered the evidence, which was not in dispute. The Appellant acknowledged taking leftover mulch and giving it to the school for their use. He also acknowledged returning onto the school property sometime afterwards and taking back a quantity of the mulch. He acknowledged that he did not obtain the permission of school authorities at the time to retrieve the mulch.

25. The Appellant’s position that he had received prior approval to donate the mulch on the school property and that he maintained some form of ownership interest until the mulch was placed in the garden or flowerbeds at the school was found to be unsupportable. The Hearing Officer’s findings that the Appellant did not have such permission was reasonable and was clearly supported by the admissions of the Appellant himself and further supported by the testimony of the Principal and Vice Principal.

26. Bearing in mind the Hearing Officer’s findings concerning the conduct of the Appellant, which we conclude were reasonable, does the Appellant’s conduct rise to the level of misconduct, namely discreditable conduct under the Code?

27. The Appellant submitted that it was not sufficient to find the Appellant did not have permission to retrieve the mulch from the schoolyard. Rather, it was necessary to find that the Appellant required permission in order to make a finding of discreditable conduct. Put another way, the Hearing Officer had to find that a theft had occurred in order to find the Appellant guilty of discreditable conduct. We do not agree with that submission.

28. In discreditable conduct cases, the question before the Hearing Officer is whether a course of conduct “is likely to bring discredit upon the police force of which the officer is a member.” (S.2 (1)(a)(xi) of the Code) While a finding that the Appellant required permission, and thus committed an offence, would likely have been a sufficient basis upon which to find the Appellant guilty, the Hearing Officer was required to consider the whole course of the Appellant’s behavior and the context within which it occurred to determine whether it likely brought discredit upon the OPP.

29. In this case the Hearing Officer considered a number of facts upon which her finding was based:

• The lack of permission to enter onto the school property to retrieve mulch;
• The knowledge and reaction of the school authorities to what appeared to be a theft;
• The awareness and reactions of the students of the school in discovering the loss of the mulch, finding out who removed it and their threats to retaliate;
• The concerns and perceptions of the school Principal about the students threats to retaliate;
• The knowledge of the NRP Chief and his officers of the Appellant’s conduct;
• The Appellant’s misleading of the investigating NRP officer about his having permission to retrieve the mulch;
• The fact that the Appellant lied to Const. Bittman when he denied having entered onto the school property, stating that he had just taken leftover mulch from the road.

30. The Appellant’s conduct was found to be serious. While it may not be at the very extreme end of the spectrum, it was open to the Hearing Officer to consider his behavior broadly and make a finding of discreditable conduct under S. 2 (1)(a)(xi) of the Code without a finding that the Appellant required permission to take the mulch. We find the Hearing Officer’s decision was reasonable.

31. With regard to the second issue of whether the Hearing Officer erred in making her credibility findings, such findings are to be assessed on a reasonableness standard; however, whether the Hearing Officer used the proper test for credibility is a legal question that is to be assessed on a standard of correctness.

32. The Appellant argues that the Hearing Officer did not apply the correct factors when assessing credibility. In her decision, the Hearing Officer cited a passage from Faryna v. Chorny, supra, and included only a portion of the citation setting out the test for credibility. Although she did not cite the entire principles of the test, we find that the Hearing Officer applied the correct and appropriate factors of the test.

33. The panel has reviewed the transcripts of evidence contained in the record and compared that evidence to the Hearing Officer’s detailed analysis of the testimony of each of the nine (9) witnesses, including the testimony of the Appellant, as outlined in the decision and we can find no misunderstanding nor misapprehension of their evidence nor in her assessment of their credibility. The evidence was thoroughly and fairly reviewed and considered and an explanation provided where the Hearing Officer accepted the testimony as reliable or rejected it as not credible or unhelpful.

34. In considering the credibility of the testimony of both Appellant and Const. Bittman, the Hearing Officer correctly considered all of the relevant factors as outlined in the O’Halloran test. Const. Bittman had opportunities for additional knowledge, being information imparted to her by the Principal and the Vice Principal and her own physical examination of the site. The Hearing Officer commented on the clarity of the observations of that officer and her clear personal recollection of the events.

35. It is evident from the decision that the Hearing Officer carefully reviewed the process of note taking by Const. Bittman and considered such notes as having been made contemporaneously to the conversations with the Appellant. Const. Bittman had specifically highlighted the Appellant’s verbal direct statements to her by noting such comments in quotation marks. The Appellant, himself, acknowledged that, as a police officer, he also used such technique to show a person’s direct quotes. He had made no such corroborating notes of his discussion with Const. Bittman.

36. We find that the Hearing Officer’s explanation of her preference for the testimony of Const. Bittman over that of the Appellant to be compelling and reasonable in these circumstances. We concur with the Hearing Officer’s finding that Const. Bittman was consistent in her evidence which was given in a conscientious, forthright, sincere, articulate and unbiased manner.

37. Having reviewed the disciplinary hearing transcript and the Hearing Officer’s statements in her decision, we concur with the Hearing Officer’s rejection of the Appellant’s argument that Const. Bittman’s evidence was unreliable by reason of the influence of her superiors, the gaps in her notes and her evasive and defensive responses. Any hesitancy in Const. Bittman’s testimony was related to the issue of her discovery that the subject of her investigation was a police officer and the concerns she expressed about the policies on investigation of other police officers. Furthermore, the Appellant’s concern for the accuracy or lack thereof of the notes of Const. Bittman ignores the testimony that the NRP officer had personal recollections of the events that occurred and the Hearing Officer found those to be reliable.

38. Const. Bittman was cautious in her testimony in relation to statements made to her by anonymous witnesses as they had expressed concerns about possible retribution if they came forward. This was not a central issue in this case and, in our view, the information given by anonymous persons did not derogate from the Hearing Officer’s assessment of the credibility of Const. Bittman’s testimony.

39. In reviewing the decision in totality, we consider the Hearing Officer’s findings on credibility of the witnesses to be reasonable.

40. In respect of the third issue of whether the Hearing Officer erred in her consideration of hearsay evidence, we find that no error was made in admitting the letter from the Chief of the NRP even though it was hearsay. Section 15 of the Statutory Powers Procedure Act, R.S.O., c.S.22. (SPPA) authorizes the admission of hearsay evidence in disciplinary hearings where relevant to the issues to be determined.

41. The Hearing Officer correctly determined that the letter from the NRP Chief of Police was admissible into evidence as being relevant to “close the loop” on the NRP investigation and to explain the reason that no criminal charges were laid against the Appellant.

42. In reviewing the reasons in totality, we conclude that the Hearing Officer assigned proper limited weight to this evidence as corroborative to the other significant evidence before her.

43. Similarly, with respect to the two anonymous statements, the Hearing Officer considered these statements among other pieces of evidence that supported the finding that Constable Horton’s conduct had the potential of negatively impacting the reputation of the Ontario Provincial Police. Although it would have been helpful if the Hearing Officer had stated how much weight she placed on the evidence, we do not find any fatal error in her not doing so.

44. We turn to the fourth issue. Did the Hearing officer err in her use of the Appellant’s prior statements in assessing his credibility. In other words, was there an abrogation of the rule in Browne and Dunn?

45. The Appellant attended at an interview with the Niagara Regional Police, which was videotaped. At the same time, he produced his own prepared written statement. The video interview and the Appellant’s written statement were subsequently produced and entered into evidence through the prosecution’s witness, Det./Sgt. Kevin Connor from the OPP Professional Standards office. This evidence was entered before the Appellant testified. The Hearing Officer appeared to rely upon inconsistencies between these statements and the Appellant’s testimony at the hearing to support findings that he was not a credible witness. The Appellant now objects, submitting that this violated the rule in Browne and Dunn.

46. Administrative tribunals are not subject to the same rules of evidence as the courts. A violation of a common law evidentiary rule such as the rule in Browne and Dunn does not, in and of itself, render evidence inadmissible. In an administrative law context, the relevant consideration is procedural fairness. Was the reliance upon the prior statements of the Appellant without the Appellant being cross-examined on them or being afforded the opportunity to respond, procedurally unfair?

47. It was unfortunate that the Appellant was not provided with the opportunity to respond or clarify or explain any inconsistencies or discrepancies between his prior statements and his testimony at the disciplinary hearing since that would have been preferable and helpful to the Hearing Officer and possibly might have influenced the degree to which she relied on the inconsistencies in assessing the Appellant’s credibility. However, we do not consider this fatal to the proceedings. The Hearing Officer had a number of other pieces of evidence before her when considering the credibility issues. These included the contradictions between the Appellant’s testimony with that of the other witnesses, namely the Principal and Vice Principal, also with that of the prior statements he made to Const. Bittman regarding the location of the mulch he retrieved and, as well, his demeanour in the witness stand.

48. On an appeal, we are mindful of the fact that hearing officers may not be legally trained and, we must not focus upon mistakes that do not affect the decision as a whole. See Bressette and Ontario Provincial Police, June 3, 2014, (OCPC#14-07).

49. While the circumstances were unfortunate, we do not find that this amounted to a denial of procedural fairness.

50. We now turn to the fifth issue: was there a fatal error made in the disciplinary hearing, thereby vitiating these proceedings with respect to penalty, by not insuring that a Notice under Section 85(4) of the Act was filed at the disciplinary hearing? The Appellant raised this issue of the failure of the prosecution to file a copy of the Notice of Intention to seek a demotion as an exhibit at the disciplinary hearing. No issue was raised by the Appellant at the disciplinary hearing that he had failed to receive such prior notice. The issue of the non-filing was first raised on this appeal.

51. Section 85 (4) of the Act does not state that such Notice must be filed. The purpose of the Notice is to advise the subject officer of the possible penalty being sought in order that he or she may prepare a response. We can find no requirement that such notice be filed in evidence. In addition, we concur with the Respondent that the Appellant cannot “lie in the weeds” and wait to raise such argument on appeal. Issues of a procedural nature must be raised at the first opportunity when they arise.

52. The final issue on this appeal is whether the Hearing Officer erred in her application of the principles of sentencing.

53. As has been previously stated by the Commission, we may vary a penalty only if it is unreasonable, fails to consider all relevant factors, demonstrates a manifest error in principle or would amount to an injustice. Pigeau v. Ontario Provincial Police and Taillon, July 15, 2009, (OCCPS).

54. The Hearing Officer conducted a thorough review of the relevant sentencing factors as described in Williams, supra, and other sentencing factors she considered applicable. She set out in clear terms her findings on each factor as being either mitigating or aggravating.

55. There was clear and cogent evidentiary support for her findings:

• that the actions of taking of the mulch without the permission from the school authorities and, at first, attempting to mislead the NRP investigating officer, constituted serious misconduct;
• that there was no sincere expression of remorse or indication of acceptance of responsibility;
• that the Appellant’s employment history included notations of negative, antagonistic and insubordinate behavior in the workplace and a lack of acceptance of responsibility for his actions;
• that the possibility of rehabilitation is unlikely;
• that the sanction imposed must send a message specifically to Const. Horton and also to other officers that they must conduct themselves, at all times, both on and off-duty in a professional and honest manner;
• that members of the community, the Principal, staff and students of the school, and the officers of the NRP were all aware of this conduct of the Appellant;
• that based upon the evidence, the conduct of Const. Horton was likely to bring disrepute to the reputation of the OPP.

56. The Hearing Officer reviewed the case law in depth. She correctly identified the principles that the penalty must be reasonable, consistent with the seriousness of the offence and must be based upon clear and cogent evidence. Schofield and Metropolitan Toronto Police Force, October 29, 1984 (O.P.C.); Williams, supra; F.H. v. McDougall, 2008 SCC 53 at para. 46.

57. The range of penalties for discreditable conduct extends from forfeiture of pay, to demotion and to dismissal. The penalty imposed herein was within that range of penalties.

58. The Hearing Officer extensively reviewed the cases referenced by counsel and concluded that none were identical in factual circumstances. After detailing her consideration of those cases, she determined the penalty herein. We can find no manifest error in principle or failure to consider all relevant penalty factors appropriately. The penalty was reasonable.

59. The questions posed in paragraph 16 are answered in the negative and accordingly, the appeals against conviction and penalty are hereby dismissed.

Dated at Toronto this 15th day of September, 2015

___________________ ___________________

Roy B. Conacher, Q.C. Winston Tinglin Vice Chair and Member Member