Nesbeth v. Windsor Police Service, 2015 ONCPC 23

Ontario Civilian Police Commission

DATE:

2015-11-23

FILE:

2015 ONCPC 23

CASE NAME:

Nesbeth and Windsor Police Service

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 87 OF THE police services act, r.s.o. 1990, c.p.15, as amended

BETWEEN:

POLICE CONSTABLE DOROTHY NESBETH

APPELLANT

-and-

THE WINDSOR POLICE SERVICE

ONTARIO CIVILIAN POLICE COMMISSION

RESPONDENT

DECISION

Panel:

Zahra Dhanani, Member

Marie Fortier, Member

Winston Tinglin, Member

Hearing Date:

August 12, 2015

Hearing Location:

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, ON M7A 2T3

Appearances:

Linda McCurdy for the Appellant Dorothy Nesbeth

David Migicovsky for the Windsor Police Service

Introduction

1. On October 17, 2014, Superintendent Robert J. Fitches (the “Hearing Officer”) released a decision (“Conduct Decision”) finding Constable Dorothy Nesbeth (the "Appellant" or “Const. Nesbeth”) guilty on one charge of Deceit and one charge of Discreditable Conduct.

2. On December 19, 2014, the Hearing Officer released a decision (“Penalty Decision”) imposing on Const. Nesbeth a penalty of dismissal from the Windsor Police Service (“WPS” or the “Service”).

3. Const. Nesbeth appealed the Penalty Decision to the Ontario Civilian Police Commission (the “Commission”) and a hearing was held at the Commission on August 12, 2015.

Preliminary Matter

4. At the beginning of the hearing, Const. Nesbeth requested permission to enter new evidence that she had received the previous day.

5. It was submitted by the Appellant that a psychologist‘s report had been requested months prior to the hearing and had not been received despite attempts in advance to arrange for it. The report finally came in at 3:30 pm the day before the hearing.

6. Counsel for the WPS was not advised prior to the commencement of the proceedings that the Appellant would be requesting the introduction of the psychologist’s report nor had he received a copy. After some deliberation, we decided not to accept the report. We found that admitting the report at that stage of the hearing would not be fair to the Service and was not required to ensure procedural fairness for the Appellant.

Decision

7. For the reasons set out below, the decision of the hearing officer is confirmed.

Background

8. The Appellant has been employed as a police officer with the WPS since 1993.

9. The events giving rise to the Appellant’s conviction began on July 28, 2010 when she was returning from a shopping trip in Detroit, Michigan, with her mother and young daughter. The Appellant purchased $213.86 worth of goods at a Target Store as well as $219.52 worth of groceries and alcohol at a Meijer Store. The Appellant went to the stores’ checkouts and paid for the purchases with cash. The purchase included 102 cans/bottles of beer, 2 bottles of rum and 2 five-litre boxes of wine.

10. Upon the Appellant’s return to Windsor, she was initially questioned by Officer Smith of the Border Service, who asked the Appellant if any alcohol had been purchased. She replied that only groceries had been purchased. Officer Smith asked the Appellant to open her trunk, but before she did so, Const. Nesbeth mentioned that she worked in law enforcement.

11. Officer Smith filled out a form recording all of the information the Appellant had provided and then directed her to go to the Secondary Inspection area. At the Secondary Inspection, the officers initially did a cursory examination of the trunk of the Appellant’s car. They only saw the undeclared merchandise from Target. When questioned, the Appellant stated she had “forgotten” making those purchases. She told the border officers she was a police officer. She was given a warning and allowed to leave.

12. However, before the Appellant could leave, Officer Smith approached and told the other officers she had seen alcohol in the trunk. The contents of the trunk, including the alcohol that was at the back of the trunk, were removed. The Appellant at first told the officers that she did not know how the alcohol got there. When questioned in the Canadian Border Services Agency (“CBSA”) office by Officer Kirwan, the Appellant stated that she did not put the alcohol in the trunk, indicated it was her mother’s, and that her mother put it there. The undeclared alcohol was seized, the Appellant paid duty on the items she had purchased and she was then allowed to leave.

13. As she left, the Appellant stated, “what goes around, comes around.” Later she asked co-workers to look for infractions committed by CBSA officers because she had been “jammed” at the border. The Hearing Officer described this as an “apparent desire to exact some sort of revenge”.

14. A letter of complaint was sent to the Chief of the Service from the CBSA, stating that the Appellant’s behaviour was unprofessional and disrespectful, and was harmful to the relationship between the CBSA and the Service.

15. An investigation was held into Const. Nesbeth`s conduct at the border and as a result, she was suspended from the Service on August 23, 2010 and charged with misconduct.

16. Following a lengthy hearing into the allegations of misconduct against her, Const. Nesbeth was found guilty of Deceit, by knowingly making or signing a false statement in a record, contrary to Section 2(1)(d)(i) of the Code of Conduct and of Discreditable Conduct by failing to report the importation of all goods when entering Canada from the United States.

17. For the reasons outlined in the Hearing Officer’s Penalty Decision, dated December 19, 2014, Const. Nesbeth was dismissed from the Windsor Police Service.

18. Const. Nesbeth is appealing the Penalty Decision.

Grounds of Appeal

19. The grounds of appeal raised by Const. Nesbeth are:

a) The Hearing Officer unreasonably concluded that Const. Nesbeth’s “post-event conduct” negated her potential for rehabilitation and outweighed important mitigating factors such as letters of good character, employment history, progressive discipline and the effect on Const. Nesbeth and family; and,

b) The Hearing Officer erred in concluding that the reputation of the WPS would be damaged by Const. Nesbeth`s continued employment.

E. Issue

20. The issue on appeal is whether the penalty of dismissal is appropriate in the Appellant’s case.

Reasons and Analysis

21. The Commission is an expert body as noted in the Court of Appeal’s decision in Ontario (Provincial Police) v. Favretto (2004), 2004 CanLII 34173 (ON CA), 72 O.R. (3d) 681, [2004] O.J. No. 4248 (C.A.), at para. 51: “The Commission is a specialized administrative tribunal that has been given broad powers on an appeal from a decision of a hearing officer to "confirm, vary or revoke the devisor being appealed" or to "substitute its own decision for that of the chief of police" which would include a decision by a hearing officer to impose a penalty of dismissal.” In the same decision, the expertise of “Hearing Officers” appointed under the Police Services Act was also recognized at Para. 50.

22. The Commission’s role on appeal is multi-faceted. The Commission has broad powers of review under s. 87 of the Police Services Act including the power to call evidence, to confirm, vary, or revoke the Hearing Officer’s decision, to substitute its own decision or to send the matter back for a hearing. In this case, we have relied solely on the record of the first instance hearing. We did not have the benefit of hearing witnesses, weighing their evidence and assessing their credibility.

23. In most cases, the Commission will decline to interfere with the Hearing Officer’s factual and credibility findings, deferring to the findings of the Hearing Officer. However, the Commission must ensure that the findings involve no errors of principle and that the evidence can support them. However, questions of law are reviewed on a standard of correctness: see Ontario Provincial Police v. Purbrick, 2013 ONSC 2276 (Div. Ct.).

24. The Commission is particularly reluctant to interfere in the selection of an appropriate penalty. In a case like this one, where the Hearing Officer has made extensive findings of fact and credibility in determining that the Appellant is guilty of misconduct, we are mindful that the Hearing Officer has had the benefit of hearing the witnesses and is better able to consider the views of the community in which the Appellant has been working.

25. In a review of a penalty, the Commission reviews the Hearing Officer’s findings and the relevant evidence to ensure that the penalty imposed is supportable by the evidence, is not based on an error in principle and that the penalty is within the appropriate range of penalties for the offence committed.

26. No two cases are exactly alike but the Commission must ensure that a penalty in a case is not disproportionate to the offence by either being too severe or too lenient as the case may be. Public confidence in the oversight of policing in Ontario requires that sentences for disciplinary offences be appropriate and consistent and that the reasons for such decisions are both transparent and compelling.

27. In this case, the decision of the Hearing Officer is detailed, logical, and substantiated by the evidence in the record. After summarizing the positions of both parties including the key points heard in evidence and reviewing the exhibits, he conducted a detailed analysis and properly weighed the relevant evidence and other considerations before him in reaching his conclusion. We accept the findings of fact and credibility made by the Hearing Officer.

28. The Hearing Officer assessed the relevant factors in reaching his decision on penalty: see Williams and Ontario Provincial Police (December 4, 1995, OCCPS) and Legal Aspects of Policing by Paul Ceyssens (2012 ed.). In particular, the Hearing Officer considered:

· the nature and seriousness of the misconduct;

· the officer’s employment history and experience;

· the officer's ability to reform and rehabilitate;

· damage to the reputation of the Service;

· the officer’s recognition of the seriousness of the misconduct;

· the need for general and specific deterrence; and,

· consistency with prior disciplinary decisions.

29. Upon reviewing the evidence in this case, we find that the evidence supported the Hearing Officer’s findings, his reasons reveal no error in principle and the decision to dismiss the Appellant, while at the more extreme end, was within the range of appropriate penalties.

30. The Appellant argued that the Hearing Officer unreasonably concluded that her “post-event conduct” negated her potential for rehabilitation and outweighed important mitigating factors such as letters of good character, employment history, progressive discipline and the effect on her and her family. We disagree. In the circumstances of this case the post-event conduct was precisely what made this a case of serious misconduct that warranted dismissal.

31. Upon reviewing the evidence, we find that the Appellant’s conduct with respect to the CBSA officers, her pattern of dishonesty and deceit, and her refusal to accept responsibility for her actions support the finding that her conduct was at the more serious end of the misconduct spectrum and as such warranted a significant penalty. We agree that the Hearing Officer was correct to consider the substantial evidence of the Appellant’s consistent attempts to prevaricate, deny, and mislead during and after the seizure of the alcohol at the border as being serious enough to warrant dismissal.

32. Police Officers are not held to a standard of perfection. They will make errors of judgment and make mistakes – some of which will be serious – which will not result in dismissal. However, because of their unique role in the administration of justice and the critical importance in maintaining public confidence in policing, a consistent pattern of deceit and dishonesty directed towards avoiding responsibility is a significant aggravating factor. Undermining the efforts of another law enforcement agency to conduct its mandate, as in this case, and the willingness of the Appellant to use her office to further her revenge on CBSA officers should also rightly be considered as significant aggravating factors.

33. The Hearing Officer quoted from Bright v. Konkle, 2 P.L.R. 481 ( Bd. of Inq.), where the Board held that:

A finding that in effect an officer is deliberately lying is more than a weighing of evidence in a particular proceeding, it is an indictment of an officer’s character.

Good character in a police officer is essential to both the public’s trust in the officer, and to a police service’s ability to utilize that officer. The public has a right to trust that its police officers are honest and truthful, and that, absent extenuating circumstances, they will not be officers any longer if they breach that trust.

From the point of view of the police service, if it has good reason to distrust that officer’s word, it can never rely on him[/her]. It must keep his[/her] actions under constant surveillance. It may have to constantly double-check everything that [she/]he vouches for. It may be prevented from assigning him[/her] to a position of responsibility. It would have great difficulty asking the public to trust that individual (“her” added).

34. The Commission has also held that a pattern of deceit and discreditable conduct after the core misconduct can justify dismissal: see Kobayashi and Waterloo Police Service, 2015 ONCPC 12. Officers have been dismissed for one-off acts of deceit or discreditable conduct: see Mamak and The Ottawa Police Service, (February 15, 2011, OCPC). The Commission has previously also stated: “that in certain cases, one event, or one instance of a lack of judgment justifies termination” Nothing and Ontario Provincial Police (1996), O.P.R. 1081 (O.C.C.P.S.)

35. Notwithstanding the seriousness of the misconduct, and that it could justify, in and of itself, dismissal, the question remains whether the evidence of Appellant’s work history and reputation for good character, the principle of progressive discipline, and the effect of dismissal on the Appellant and her family should have supported a different and less severe penalty.

36. That the Appellant had an excellent work history and a good reputation is not in question. There were 30 letters of reference entered in evidence as well as 12 different performance-related documents, which we have reviewed. The Hearing Officer clearly canvassed all of this material. He acknowledged that the letters consistently described a person who “has left a very positive impression on people.” He found that the letters suggest Const. Nesbeth was a “remarkable young woman who had contributed a great deal to her family, community and her police service.”

37. However, after considering this evidence carefully, he found that it did not accord with the evidence before him at the hearing, writing the following:

On July 28^th, 2010 and frequently since that date, Constable Nesbeth has been tested. Her courage, honesty, integrity and values have been tested and based on the evidence before this tribunal, she has failed that test. While the individual that is described in the letters of support would be expected to recognize the errors she has committed and immediately set about trying to make the situation right, Dorothy Nesbeth seems to have made a conscious decision to stick by her initial strategy and try to ‘ride it out’ [emphasis added].

38. The Hearing Officer found that Const. Nesbeth’s behaviour demonstrated an inability to practice the core functions of a police officer, which require honesty and integrity. He found that her behaviour contravened all principles of policing that are meant to inspire public confidence in policing. The nature of this behaviour – a repeated pattern of deceit and dishonesty – limited the mitigating effects of the Appellant’s work record and reputation. In this respect the Hearing Officer stated:

Mitigation of matters such as these can often be considered if the officer has made an honest mistake, or the conduct is completely out of character or the officer clearly recognizes the seriousness of the mistake and takes full responsibility for his or her actions. I have great difficulty in accepting that an honest mistake can coexist with conduct that spans a very long period of time, however. It seems to me that if some particular misconduct is as a result of an honest mistake and is completely out of character, the individual would surely reconsider what he or she had done and immediately start to make amends or otherwise begin to correct the error. In the matters before me, I have seen no actions and have heard no words that would lead me to conclude that the misconduct has been recognized for what it was or that Constable Nesbeth has had a change of heart and wants to correct the record and set things right….I remain unconvinced as to her recognition of the seriousness of her behavior over many, many months and there are no indications that I can point to that suggest that reform or rehabilitation is likely or even possible.

39. The weighing of mitigating factors in favour of a person against the aggravating factors of the offence is a delicate balancing act. We are mindful that the Hearing Officer was in a much better position to consider the Appellant’s demeanour and credibility. We find no error in principle with his analysis and, upon reviewing the record, we agree that the evidence did not offer a basis to find the Appellant had demonstrated remorse or accepted responsibility, thus severely limiting the effectiveness of the evidence of her good work history and character.

40. With respect to the issue of progressive discipline and the effect of the dismissal on the Appellant’s family, we again find that the Hearing Officer considered these issues, dealt with them in a balanced and appropriate matter, and that the evidence supported his decision.

41. At the heart of the decision to dismiss the Appellant was the Hearing Officer’s finding that the Appellant’s continued employment would damage the reputation of the WPS. Const. Nesbeth also appeals this aspect of his decision.

42. In coming to this determination the Hearing Officer carefully considered the evidence of the Appellant’s misconduct, the nature of that misconduct, the effect that it would have on her ability to function as a police officer and the evidence of the negative publicity and public opinion in respect of the Appellant’s case. He found that were she to remain employed the discredit she brought upon the WPS “would continue or perhaps increase: at least into the foreseeable future.”

43. Upon reviewing the evidence, we agree with this finding. While the deceit and deception were significant factors to be considered, one of the most troubling elements of the Appellant’s conduct was the comment made to the CBSA officers during the course of their execution of their duties coupled with the evidence that she took steps to gather information about infractions committed by CBSA officers in order to act on her desire for revenge. It is exceedingly difficult to consider that retaining a police officer who took steps to use her office and powers to further a personal grievance against members of another law enforcement agency could not tarnish the reputation of the WPS and undermine public confidence in the professionalism and impartiality of policing in the community.

44. We note that the role of the CBSA in a border city like Windsor is of particular importance to public confidence in policing. The Hearing Officer made similar comments. We would be reluctant to suggest that we are better placed than the Hearing Officer to assess and measure the degree of public confidence in the community in which the offence occurred.

45. While, like the Hearing Officer, we sympathise with the effect that the dismissal will have on the Appellant and her family, we find that the decision to dismiss her in the circumstances of this case was supported by the evidence and within the range of appropriate penalties. It should be noted, however, that the Appellant had plenty of opportunities to demonstrate remorse, accept responsibility, and thus mitigate the most aggravating elements of her conduct. But she consistently chose not to.

Conclusion

46. For the reasons set out above, the decision of the Hearing Officer is confirmed.

Dated at Toronto this 23^rd day of November, 2015

Zahra Dhanani Marie Fortier Winston Tinglin

Member, OCPC Member, OCPC Member, OCPC