ONTARIO CIVILIAN POLICE COMMISSION
FILE: 2015 ONCPC 04
CASE NAME: Markham and Waterloo Regional Police Service
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, as amended
BETWEEN:
Constable Craig Markham APPELLANT
-and-
Waterloo Regional Police Service RESPONDENT
DECISION
Panel: David C. Gavsie, Associate Chair Georges Bedard, Member Zahra Dhanani, Member
Hearing Date: September 26, 2014
Hearing Location: Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3
Appearances
Pamela Machado, Counsel for the Appellant, Constable Craig Markham
Gary V. Melanson and Virginia Torrance, Counsel for the Respondent, Waterloo Regional Police Service
Introduction
1Constable Craig Markham (the “Appellant” or “Const. Markham”), a member of the Waterloo Regional Police Service (the “Respondent” or the “Service”) pled guilty and was found guilty of two counts of Insubordination, two counts of Discreditable Conduct, and one count of Breach of Confidence by Supt. Pat Dietrich (the “Hearing Officer”) in his decision dated January 17, 2014. All counts were made under the Code of Conduct set out as a Schedule to Ontario Regulation 268/10 as amended, and therefore contrary to section 80(1) of the Police Services Act, R.S.O. 1990, as amended (the “Act”).
2The Hearing Officer imposed a sentence giving Const. Markham seven days to resign or he was to be terminated from all employment with the Service.
3The Appellant is seeking that the penalty of dismissal be revoked and that instead, a lesser penalty be imposed.
4The issues raised by the Appellant regarding the Hearing Officer’s decision are:
the Hearing Officer used his experience to fill in gaps in the evidence and, as such, did not make his decision on the evidence adduced, but rather chose to rely on his own presumptions to bolster and give validity to his decision on penalty;
the Hearing Officer engaged in speculation in drawing negative inferences about the motivation of Const. Markham to commit the misconduct, when there was no such evidence regarding any insidious motive before the tribunal. Furthermore, there was no obligation on the defense to proffer an explanation or prove anything;
the Hearing Officer failed to give proper consideration and weight to the aggravating and mitigating factors presented in determining penalty;
the Hearing Officer assigned a penalty that was not proportional to the misconduct at issue, or consistent with the penalties provided in similar circumstances; and
the Hearing Officer failed to assign the proper weight to the legal authorities submitted when determining the most appropriate penalty.
DECISION
5The appeal is dismissed for reasons which follow.
BACKGROUND
6Const. Markham has been a member of the Service since 2002.
7On September 28, 2011, Const. Markham received a text on his personal mobile phone from A.S.1 inquiring about her common law partner N.C.* who had just been arrested and was in police custody facing serious drug related charges. N.C. is an acquaintance of Const. Markham.
8Const. Markham accessed the Service’s internal records system Niche as well as CPIC and searched out information regarding N.C. He then proceeded to the cells where N.C. was being held and had a discussion with him.
9After leaving N.C. the Appellant phoned a mutual acquaintance of theirs, E.C., and advised him that N.C. had been arrested.
10Const. Markham again accessed Niche, then copied the synopsis from the occurrence report pertaining to N.C.’s arrest to his Service email account, from there emailing it to his personal hotmail email account. He then forwarded the information via this email account to E.C.
11The following day Const. Markham again accessed Niche to inquire about E.C. and A.S.
12Const. Markham’s actions were discovered five months later, on February 5, 2012, following the arrest of E.C. on an impaired driving charge. E.C. provided the police with the information leading to the charges laid against Const. Markham.
13On April 16, 2012 Const. Markham was arrested and on October 18, 2012 he pled guilty to the criminal charge of Breach of Trust by a Public Official contrary to section 122 of the Criminal Code. He received a conditional discharge with twelve months of probation.
14During the criminal investigation of Const. Markham, it was further discovered that on different dates in June 2011, Const. Markham queried three other individuals on the Niche system without legitimate investigative or administrative reasons.
15During the Professional Standards investigation Const. Markham was ordered to attend the Service’s Professional Standards Branch office to be interviewed, but he refused.
16An Agreed Statement of Facts (“ASF”) was tendered at the disciplinary hearing which set out the above facts and substantiated all counts of the misconduct.
17Const. Markham’s convictions for Breach of Confidence, Discreditable Conduct (2 counts) and Insubordination (2 counts) are summarised below.
Conviction for Breach of Confidence
18On September 28, 2011, Const. Markham, without proper authority, did copy to his personal email account a confidential police synopsis with respect to an ongoing drug investigation involving N.C. (a person in custody) and then emailing the synopsis to E.C. (a person who is not a member of a police service).
Conviction for Insubordination (1 count)
19Contrary to Service procedure, Const. Markham on June 13 and 26, and on September 29, 2011 searched and accessed the Niche and CPIC, without lawful reason. He accessed various personal particulars, occurrences, police statements and photographs of A.P. (a known associate of a criminal organization), his brother P.P., his common law wife also with initials A.P. and again N.C. There were no notations in Const. Markham's notebook nor any suggestion that the searches related to any current investigation that was being carried out by Const. Markham.
Conviction for Insubordination (1 count)
20On June 27, 2012, without lawful excuse, Const. Markham disobeyed an order of a superior officer to attend and provide a statement regarding his conduct to a Professional Standards Branch investigation.
Conviction for Discreditable Conduct (1 count)
21This charge of Discreditable Conduct stems from the totality of Const. Markham's actions with regard to the matters related to N.C., including: 1) giving N.C. special treatment with respect to the ongoing investigation and charges against him, 2) by breaching his Oath of Office and Oath of Secrecy and 3) by association with known and/or alleged criminals.
Conviction for Discreditable Conduct (1 count)
22The second charge of Discreditable Conduct arose after Const. Markham was convicted of the offence of Breach of Trust by a Public Official, contrary to section 122 of the Criminal Code. Being charged with a criminal offence and then being found guilty of that offence could constitute Discreditable Conduct, as was found in this case.
Reasons and Analysis
23This is an appeal on the record and the principles of appellate review are well established.
24The standard of review with respect to factual findings is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9.
25The Supreme Court of Canada described the reasonableness standard as being concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. This standard is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of facts and law: see Dunsmuir, supra, at p.47; and Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
26The role of the Commission on an appeal is not to second guess the decision of a hearing officer but to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence and are articulated in a transparent, logical and intelligible manner: see Precious and Hamilton Police (2002), 3 O.P.R. 1561 (OCCPS); and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div. Ct.).
27It may be open to the Commission, in certain cases, to reach a different conclusion than that reached by the hearing officer. However, the Commission should only intervene if there has been an error in principle, or if relevant facts have been ignored: see Williams and Ontario Provincial Police (1995) 2 O.P.R. 1047 (OCCPS); Wilson and Ontario Provincial Police, (November 20, 2006, OCCPS); Favretto and Ontario Provincial Police, (February 13, 2002, OCCPS); and Karklins and Toronto Police Service, (September 25, 2007, OCCPS).
28Deference must be accorded to a hearing officer’s findings unless an examination of the record shows that the conclusions reached cannot reasonably be supported by the evidence: see Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont 1583 (Div. Ct.)
29The law is clear that the standard of review for a hearing officer’s penalty disposition is that of reasonableness: Karklins, supra 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.
30As 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, 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 Peel Regional Police, (April 5, 2002, OCCPS) at p. 7, and Hassan and Peel Regional Police, (September 8, 2006, OCCPS) at p. 10.
Issue 1 – Did the Hearing Officer err by using his own experience to interpret gaps in evidence and to validate his decision on penalty?
31The Appellant submitted that the Hearing Officer used his experience to fill in gaps in the evidence, and therefore did not make his decision on the basis of the evidence before him, but instead chose to rely on his own presumptions to bolster and give validity to his decision on penalty.
32We do not agree. We find that the Hearing Officer made his decision based on the facts and the law before him. Const. Markham pled guilty to all five charges laid against him and there was an ASF that verified all of the facts. The Hearing Officer correctly relied on these facts.
33The Appellant chose not to call any witnesses at the hearing on penalty, choosing only to make a statement to the tribunal. Const. Markham was not under oath nor was he subjected to cross-examination which would test the veracity of the statement he made.
34We found the evidence on the record to be sparse with the ASF providing the most fulsome, accurate and relevant evidence. The Hearing Officer however considered all of the evidence available to him in assessing the gravity of the issues.
35The Hearing Officer is tasked with interpreting law, weighing evidence and making factual findings in a matter of professional discipline. He or she is often chosen by a chief of police because they have expertise, experience and an in-depth understanding of policing. It is therefore expected that the Hearing Officer would bring this knowledge to bear when assessing the facts before him or her. This is supported in law: see Allen and Hamilton-Wentworth Regional Police Service, (May 4, 1995, OCCPS), Orr and York Police Service, (March 26, 2001, OCCPS) and McPhee and Brantford Police Service, (August 3, 2012, OCPC).
36The Appellant submitted that the Hearing Officer incorrectly found that Const. Markham “illegitimately queried four individuals” and then “chose not to account for his actions by refusing to attend for a compelled interview.”
37We agree with the Hearing Officer that Const. Markham “illegitimately” queried four individuals. Const. Markham pled guilty to unlawfully searching police information technology about four different individuals. To do something “illegitimately” is to do something outside of prescribed rules or laws. We see no error with this statement.
38There was no lawful reason provided for the Niche and CPIC queries conducted by Const. Markham. It was found that, Const. Markham did not, contrary to police policy, indicate in his notebooks that he queried these individuals on the police information system. It was also found that he was not working on any police matter dealing with these individuals at the time of the searches.
39We also agree with the Hearing Officer’s statement that Const. Markham “chose not to account for his actions by refusing to attend for a compelled interview.” To account for something is to give your explanation and reasons. Const. Markham chose not to attend the compelled interview. He also did not testify at the hearing, therefore he “chose” not to give an “account” for his actions. These are the facts. We do not find that the Hearing Officer has interpreted these facts specific to his own experience or in a way to bolster his decision.
40The Appellant argued that he did not attend the compelled interview because he faced double jeopardy. We do not agree that he did.
41We find from our review of the record that Const. Markham refused to attend a compelled interview, without having a lawful excuse for disobeying the order of a senior officer.
42Const. Markham stated that he was concerned that his statements may be used against him in an impending criminal trial. In Orr, supra, the Commission held that a police officer would not be prejudiced by responding to questions at a compelled disciplinary interview as they could not have been admitted in any criminal proceedings. Moreover it was held that s. 13 and s. 7 of the Charter of Rights and Freedoms does not entitle a police officer to refuse to answer questions at a compelled disciplinary interview – Orr, supra. Finally, the disciplinary interview was delayed until after the trial in the criminal proceeding had been completed.
43Whatever his reason for not attending the compelled interview, it was still his decision. We find no error with the Hearing Officer’s finding pertaining to this.
44The Appellant argued that the Hearing Officer made findings adverse to those made by the criminal court judge, Justice Douglas, when interpreting the facts as presented within the disciplinary hearing. Again we disagree with this submission. The Hearing Officer made the same finding as Justice Douglas. They both found Const. Markham guilty of the offences he had been charged with.
45Justice Douglas used his discretion to give Const. Markham a conditional discharge. He stated that he did this because a more serious penalty would mean that Const. Markham would be most surely found to be unable to keep his job as a police officer. He found that this was better decided by a disciplinary body with expertise in this realm of employment law. In his decision as to sentence, Justice Douglas states:
Therefore it is a rare day that a police officer who breaches his or her oath would receive a conditional discharge, this is one of those cases where I am going to give him the benefit of the doubt and grant him a conditional discharge so that he can fight for his job in another forum where people are better equipped to determine whether he should continue to be a police officer or not and I am going to give him that chance.
46Justice Douglas interpreted Const. Markham’s conduct in one way suggesting that it may have been based on an attempt to gain respect from acquaintances. This is not a finding of “fact”. The Hearing Officer interpreted the conduct another way, this was his prerogative. The Hearing Officer is not bound by the opinion stated by the criminal court judge. In our review of the record, we agree with the Hearing Officer’s interpretation that the actions of Const. Markham were deliberate and not a mistake. We discuss this later in the decision, but in any case, the Hearing Officer is not only entitled but required to make his own judgment based on the facts and the law before him.
47The Appellant questions how the Hearing Officer deduced that Const. Markham knew that N.C. was a high level drug dealer.
48Const. Markham read the synopsis of the investigation that led to the charges against N.C. The synopsis states the police observed N.C. making several exchanges with people in different parking lots. The police searched his car and found 500 Oxycodone and Percocet pills. Finally, the police searched N.C.’s private residence and found a large amount of Oxycodone pills, Percocet pills, steroids, Canadian currency, approximately 2 lbs of dried cannabis marihuana, and a cannabis marihuana grow operation consisting of approximately 191 cannabis marihuana plants.
49The synopsis clearly states that as a result of their findings the police charged N.C. with several drug related charges. Const. Markham read this synopsis and then still went to the cells to speak to N.C. Whether Const. Markham knew conclusively or not that N.C. was a “high level drug dealer” is irrelevant. The fact that he knew that N.C. might be a “high-level drug dealer” should have been enough to stop him from attending at the cells and providing N.C. with confidential information, e.g.: giving N.C. the name of the drug investigator on his case.
50The Appellant argued that the Hearing Officer incorrectly found that Const. Markham deliberately attempted to conceal the transfer of an email. We find that the Hearing Officer was quite correct in this conclusion.
51Const. Markham admitted to searching and accessing the Niche records system and CPIC with respect to the ongoing investigation of N.C. Const. Markham admitted to sending the information to his personal email account and then transferring the email to a person who is not an officer of the law. We find these actions to be deliberate, far from accidental.
52We find that sending the synopsis from his Service email account to his personal email account, then to an acquaintance of his who is not a police officer, clearly would conceal the transfer of this confidential information directly from the Service email account to the civilian account.
53We find no error with the Hearing Officer’s characterization of these facts. The conclusion is what this conduct appears to be on the surface: a deliberate attempt to conceal from the Service that he was sending confidential police information to a civilian. Const. Markham’s intent is not relevant. These are the facts that were before the Hearing Officer.
54Finally, the Appellant made three other arguments suggesting error on the part of the Hearing Officer: (1) he determined that Const. Markham would face difficulties reintegrating back to work, (2) he erred in concluding that Const. Markham's usefulness in future prosecutions is challenged, while other officers who have been convicted criminally are still employed by the Service, and, (3) he erred in conflating the public interest with fairness to the public when the public was not a party to the proceedings.
55It is our view that the reasons taken as a whole support the Hearing Officer’s concern that Const. Markham’s usefulness in the prosecution of future offenses is challenged after being found guilty by a criminal court for being dishonest and breaching the public trust.
56The Appellant claims that the Hearing Officer erred in conflating the public interest with fairness to the public, when the public was not a party to the disciplinary hearing. We find that when it comes to police misconduct the interests of the public must always be considered.
57We agree with the Respondent that the Hearing Officer dealt with the public interest properly given that one of the objectives of the disciplinary process is being mindful of the police officer’s obligation and duty to protect the public.
58The Commission has repeatedly held that the use of CPIC for unauthorized reasons is a serious offence and erodes public trust for which police officers must be held accountable: see Christian and Grbich and Aylmer Police Services, (August 9, 2002, OCCPS).
59In the circumstances of this case, it was reasonable for the Hearing Officer to consider the facts and interpret them the way he did. We are satisfied that there is no error in principle. Evidence was not mischaracterised. His conclusions based on the facts were reasonable and no material facts were overlooked. As such, we will not intervene on this point.
Issue 2 – Did the Hearing Officer err by engaging in speculation as to the motivation behind Const. Markham’s misconduct?
60The Appellant argues that the Hearing Officer erred when he described Const. Markham’s actions as “insidious”. In his decision, at page 24 the Hearing Officer states:
These are not the actions of a carefree or simply careless person, the better descriptor is insidious.
61The 2015 edition of the Merriam-Webster dictionary defines insidious as “causing harm in a way that is gradual or not easily noticed,” and also as “having a gradual and cumulative effect.” We find that these definitions of “insidious” are descriptive of Const. Markham’s conduct.
62The Hearing Officer describes this “insidious” behaviour quite well at page 24 of his decision:
[Const. Markham] looked at the synopsis information involving N.C. before meeting with him. He saw the matter involved confidential informant information and he saw there were two people still outstanding. Although there is no evidence that Constable Markham is aware of E.C.‘s ties to organized crime and the Hell’s Angel’s Motorcycle Club, he knows from the information in the synopsis that N.C. is a high level drug dealer. He went into an area of the building where he was not working to meet with N.C. who was awaiting bail. In the transcript of the criminal matter, N.C. is referenced as a mutual friend of his and E.C.’s...On three occasions he provided N.C. with the name of the investigating drug officer. He returned to a computer and queried the incident, he made an attempt at concealing the transfer of the information by sending it to his personal e-mail prior to sending it outside the Service. The information is then sent to E.C., a friend of N.C. Constable Markham is aware of the risks in cases involving confidential informants.
63To send confidential police information to civilians in and of itself could cause harm. To send such information to the friend of the person who is being investigated could not only lead to an obstruction of justice but could lead to serious harm on many levels.
64The Appellant argues that the conclusion by the Hearing Officer that his motivation was insidious is not based on any evidence before the Hearing Officer. We find this argument to be without merit.
65First, as evidenced from the quote above, the Hearing Officer was speaking of Const. Markham’s “actions” not his “motivations”.
66Const. Markham’s motivations are not relevant to a finding that his behaviour was insidious. There is no doubt that the Appellant’s behaviour has a cumulative effect of being harmful. Const. Markham’s admitted behaviour is what gave rise to the penalty. The Service “victim impact statement” potently describes the impact of Const. Markham’s conduct:
We police only with the consent of our community. When the security and confidentiality of intimate, private information is brought into question we risk such consent being withdrawn.
67The reputational harm caused as a result of Const. Markham’s conduct cannot be understated as it calls into question a fundamental ingredient for effective policing in the Province: namely, public confidence and trust.
68Finally, Const. Markham’s behaviour would have gone completely “unnoticed” had E.C. not been arrested and as a result given information to the police about the actions of Const. Markham.
69The Appellant only took responsibility for his actions once the conduct was revealed to the Service. The fact that this harmful behaviour went unnoticed for over five months is insidious and a serious issue. We find the Hearing Officer’s conclusion on this point to be reasonable.
Issue 3 – Did the Hearing Officer fail to give proper consideration and weight to the aggravating and mitigating factors presented to him?
70Counsel for the Appellant, argued that (i) the Hearing Officer over-emphasized the conversation Const. Markham had with N.C. at the jail cell, (ii) failed to give adequate weight to the evidence of Const. Markham’s personal circumstances (namely the impact of his ill parents), (iii) failed to consider that no “actual” harm resulted from Const. Markham’s misconduct and (iv) failed to give adequate weight to Const. Markham’s positive employment record.
71There are over 15 factors that a Hearing Officer can examine when addressing penalty: see Legal Aspects of Policing by Paul Ceyssens (2012 ed.). The Hearing Officer is not expected to review all of these factors but to determine which factors are the most relevant in achieving the appropriate remedy in the case before her or him. There is no requirement to give one factor more weight than another. A hearing officer assigns appropriate weight to the sentencing factors depending upon the circumstances and the factual findings.
72There is no requirement on a Hearing Officer to give all factors equal weight. Indeed if the seriousness of the misconduct is found to be egregious, this factor alone can lead and has led to the highest range of penalties.
73In reviewing the Hearing Officer’s analysis of the evidence before him, we find that he dealt with all of the relevant factors and assigned appropriate weight to these factors.
74The Hearing Officer dedicated sixteen pages of the Penalty Decision to an analysis of the factors he thought were relevant to the disposition, namely: public interest, seriousness of the misconduct, recognition of the seriousness of the misconduct, handicap and other relevant personal circumstances, employment history, potential to reform or rehabilitate the police officer, effect on the police officer and the police officer’s family, specific deterrence, general deterrence, consistency of disposition and damage to the reputation of the police service.
75The Hearing Officer found that “the seriousness of Constable Markham’s misconduct is at the very high end of the spectrum and this will be weighted accordingly in the disposition.” We find this conclusion to be reasonable.
(i) Conversation with N.C. at the Jail Cell
76We do not find that the Hearing Officer over-emphasized Const. Markham’s conversation with N.C. at the cell.
77Video footage documenting the conversation Const. Markham had with N.C. at his cell was submitted as evidence before the Hearing Officer. The Hearing Officer refers to it two or three times in his 40 page decision.
78The Appellant submits that it was not appropriate for the Hearing Officer to put any weight on this evidence because it does not form the “foundation” for any of the charges. We do not agree.
79Section 2(1)(a)(xi) of the Code of Conduct enacted under s. 80(2) of the Act defines Discreditable Conduct as: “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.”
80One of the Discreditable Conduct charges stems from the totality of Const. Markham's actions with regard to the matters related to N.C. including: 1) giving N.C. special treatment with respect to the ongoing investigation and charges against him, 2) by breaching his Oath of Office and Oath of Secrecy, and, 3) by association with known and/or alleged criminals.
81Const. Markham’s conversation at the cell with N.C. provides evidence for all of the above.
82The Hearing Officer particularly comments on the parts of the documented conversation where Const. Markham discloses to N.C. the name of the investigating drug officer on his case. Const. Markham disclosed this information to N.C. three times.
83The Appellant argued that the conversation was a “momentary lapse in judgement.” When you give someone confidential police information three times, this cannot be described as a mistake or a slip. Rather it demonstrates that you want to make sure you have communicated this piece of information.
84The Hearing Officer also commented on the part in the conversation where Const. Markham states to N.C.: “we’ll talk soon.”
85The Appellant argues that this is a “common salutation” and does not impute any future course of action by Const. Markham.
86“We’ll talk soon,” is generally a common salutation but only in instances where you will be talking to someone again soon. It is not generally used in situations where you have decided because of your role as a police officer you should distance yourself from someone who is being investigated.
87The conversation at the cell raises many questions: why would Const. Markham want to disclose confidential police information to someone who is being investigated? Why would he want to act in a way that was contrary to his obligations as a police officer?
88Const. Markham in his statement described his actions as a “simple stupidity”. We agree with the Hearing Officer’s finding that this description does not capture the seriousness of Const. Markham’s conduct.
89We find that the weight accorded by the Hearing Officer to the conversation at the cell between Const. Markham and N.C. was reasonable. This conversation established important elements of the offence of Discreditable Conduct.
(ii) Personal Circumstances
90We do not agree with the Appellant that the Hearing Officer failed to give adequate weight to his personal circumstances both at the time he engaged in the misconduct and as relates to his rehabilitation.
91At the time he committed the misconduct, Const. Markham had severely ill parents, and he was their primary care-giver.
92In 2010, Const. Markham’s mother was diagnosed with cancer. His father suffered from Parkinson’s disease, diabetes and extremely decreased mobility.
93The Hearing Officer viewed these personal circumstances to be relevant and deemed them to be mitigating. He considered this as part of his disposition. At page 27 of his decision the Hearing Officer states:
Constable Markham had the stress of caring for two ill parents and dealt with the pressures the situation presented. Constable Markham emphasizes himself that this was not an excuse for his behaviour but is provided as context.
94In the conclusion of his decision, the Hearing Officer states again that he deemed these personal circumstances to be mitigating. This however did not outweigh the weight the Hearing Officer placed on the seriousness of the Appellant’s offences.
95The Hearing Officer’s decision is primarily based on his finding that the Appellant’s misconduct was “at the high end of the spectrum.” He found Const. Markham’s conduct to be “egregious for a police officer.” Based on our review of the record, we find this conclusion to be reasonable.
96The Hearing Officer concluded that the damage to the reputation of the Service, and the need for specific and general deterrence, outweighed the mitigating factors in this case.
97To demonstrate the seriousness of the Appellant’s misconduct the Hearing Officer quotes from Justice Douglas’s decision in the criminal case:
A police officer has a special place in our society. The role and duty of a police officer is not an easy task. Not many of us are cut out for it...They are one of the few people who are allowed to carry firearms. That is how much we trust them. They have the right to use force, to enter people’s homes, to be in the possession of all kinds of information and sensitive material. And once we lose that confidence in them, in their honesty and integrity, then the entire administration of justice is threatened. It is like a house of cards. They are the front-line people.
98The Appellant argued that he was experiencing significant stress and anxiety at the time of his misconduct, and that these conditions impacted his behaviour.
99We agree with the Respondent that there is no professional medical evidence which could support any argument that the misconduct resulted (even partially) from the stress Const. Markham was experiencing, or from any other circumstances in his life. Without supporting professional medical evidence, these arguments bear little weight.
100In light of the fact that no professional medical evidence was presented that directly correlated the Appellant’s misconduct to the anxiety and stress of his personal circumstances, we believe that the Hearing Officer gave proper weight to this factor.
101The Commission has held that reliable professional medical evidence will be given significant weight when it demonstrates how an officer’s performance was affected by a medical condition they were experiencing at the time of the misconduct: see Constable Mulholland v. The Peel Regional Police, (November 25, 2014, OCPC).
102The Hearing Officer deemed Const. Markham’s misconduct to be very serious, warranting dismissal. In seeking to establish the impact of the stress he was experiencing on his performance, the Appellant relied on a letter from his parents’ home-care provider, his direct work supervisor Sergeant Mark James and a short letter from the centre where Const. Markham received some counselling. With all due respect, this is not reliable professional medical evidence that the Hearing Officer must give considerable weight to.
(iii) Lack of Harm as a Result of the Misconduct
103The Appellant argued that the Hearing Officer erred by giving little weight to the fact that the investigation of N.C. was not jeopardized, “no actual harm” was done to any person and no one’s “life was jeopardized” as a result of his misconduct.
104We agree with the Hearing Officer that this argument does not hold much weight, when you consider it against the harm that was done or could be done by this kind of misconduct on the part of a police officer.
105Const. Markham’s conduct could have jeopardized the investigation of N.C., the lives of officers and the lives of informants. Should another officer consider behaving in this fashion, there should be no confusion that very serious consequences could result.
106The Hearing Officer discussed how the reputation of the Service was seriously affected as a result of the media reports of the Appellant’s misconduct, particularly the unauthorized use of CPIC and divulging confidential police information to unauthorized members of the public.
107The Hearing Officer spoke to the impact of the breach of trust by a public officer. He was guided by the Supreme Court of Canada (“SCC”) decision in R. v. Boulanger, 2006 SCC 32, which establishes why a breach of trust by a public officer is elevated from a disciplinary offence to a criminal offence.
108In addressing the seriousness of a breach of trust by a public officer, the Supreme Court stated:
the s. 122 offence of breach of trust by a public officer, can be traced back to the early authorities that recognize that public officers are entrusted with powers and duties for the public benefit. The public is entitled to expect that public officials entrusted with these powers and responsibilities exercise them for the public benefit. Public officials are therefore made answerable to the public in a way that private actors may not be.
109Const. Markham abused the trust that was placed in him as a police officer. His conduct fell far below acceptable standards of a police officer.
110The Hearing Officer found that Const. Markham’s characterization of his misconduct as “a mistake” and “a simple error in judgment” could not be accepted. We find this conclusion to be reasonable.
(iv) Positive Employment Record
111We find that the Hearing Officer considered the Appellant’s positive employment record. He noted that Const. Markham has no previous disciplinary issues. The Hearing Officer deemed that the Appellant’s positive employment record was a mitigating factor and he counted it as such in his conclusion.
112We find that the Hearing Officer weighed the evidence on this issue appropriately. He found that the random four pages of disparate performance appraisals included in the documentary evidence were not conclusive. He noted that performance appraisals for officers usually assess 14 performance dimensions. While he did not make a negative inference as a result of this, he did note the “paucity of actual evidence that speaks to Constable Markham’s positive performance is apparent.” We agree.
113We also agree that the letter from Const. Markham’s supervisor Sergeant James quoted elements of Const. Markham’s statement at the hearing and it also contained an inaccurate statement, namely that Const. Markham cooperated fully with the police investigation into his conduct. Indeed, Const. Markham did not cooperate. He refused to attend the compelled disciplinary interview. While the Hearing Officer did not dismiss this letter, he gave it less weight. That was his prerogative. We find no fault with this.
114As such, the Hearing Officer placed less weight on the prior disciplinary record than he might otherwise have, but he still found this factor to be mitigating. The Hearing Officer’s conclusion on this issue was beneficial to the Appellant. We find no error here.
115Finally, we find that the Hearing Officer assessed relevant factors as to penalty and accorded them the appropriate weight based on the evidence before him. We find no error in his assessment of the penalty factors.
Issues 4 and 5 – Penalty
116We will deal with the fourth and fifth issues together.
117The fourth issue raised by the Appellant is that the Hearing Officer assigned a penalty that was not proportional to the misconduct at issue, or consistent with the penalties imposed in similar cases: see Williams and Ontario Provincial Police (December 4, 1995, OCCPS), Brudlo and Toronto Police Service (November 23, 2005, OCCPS), and Schofield and Metropolitan Toronto Police (September 11, 1984, OPC).
118The Appellant argued that the penalty is harsh and excessive, given his personal circumstances, his on-going efforts to rehabilitate, and his extreme remorse.
119The Appellant argued that the decision by the Hearing Officer in the matter of Const. Zachary Gent of the Service dated August 10, 2010, the decision being tab 3 in the Appellant’s book of authorities, demonstrated that dismissal is not appropriate in this case. The Appellant argued that each of the cases he presented involves misconduct more serious than in this case, and which did not result in dismissal.
120The Appellant argued that the Hearing Officer failed to give proper effect to the legal authorities when determining the most appropriate penalty. He argued that there is no consistency between the penalty in this case and the penalties in the cases he referred to.
121The Appellant argued that dismissal is disproportionate to both the level of misconduct and the specific circumstances in this case.
122The Appellant argued that therefore the disposition in his case is unjust.
123We do not agree. The factors distinguishing this case from all the other cases presented are two-fold: (1) Const. Markham pled guilty to and was convicted of a criminal Breach of Trust offence, and, (2) Const. Markham refused to attend the Service’s compelled disciplinary interview.
124From pages 30 to 36 of his decision, the Hearing Officer reviewed the relevant authorities presented to him and found it difficult, as we do, to accept the cases put forward by the Appellant as appropriate comparisons. None of those cases involved a conviction of criminal Breach of Trust by a Public Officer.
125The Hearing Officer distinguished Gent, supra, from the facts before him. The appellant in Gent, supra, cooperated with the investigation, was not convicted for criminal Breach of Trust, and, unlike Const. Markham, Const. Gent was a junior officer. Const. Gent did not potentially compromise an investigation, and he was only convicted on one count of misconduct.
126We find the Appellant’s minimization of these differences to be unsatisfactory. In our view, the Hearing Officer’s categorization of the Appellant’s actions at the high or serious end of the spectrum of misconduct is appropriate.
127We have considered the seriousness of the misconduct, the public interest, the relevant personal circumstances, the potential to reform or rehabilitate, the consistency of disposition, and the damage to the Service.
128We agree with the Respondent that this is a unique case with uncommon facts.
129Given the record before the Hearing Officer, we find that his decision falls within the range of possible or acceptable outcomes which are defensible in respect of the facts and the law.
130It is our view that the Hearing Officer clearly took into account the seriousness of the five charges, the Appellant’s ability to rehabilitate, and whether the Appellant’s usefulness to the Service has been annulled. We agree that the Appellant’s course of conduct during the series of events was egregious.
131We believe the Hearing Officer in this case balanced a very hard decision with multiple factors, in a thoughtful and appropriate disposition and we see no reversible error in his decision on penalty.
132We find no manifest error in the Hearing Officer’s 40 page decision on penalty. He thoroughly reviewed the evidence, the law and submissions from counsel. He reviewed and weighed the documentary evidence at some length and presented an accurate, balanced account of the significant evidence. He summarised the case law put before him by counsel and he correctly compared and distinguished the case before him against the most relevant decisions on penalty. Finally, he applied the relevant sentencing principles and applied a penalty that was within the range of possible outcomes.
133We find the Hearing Officer’s decision in this case to be reasonable.
134The appeal is therefore dismissed.
DATED AT TORONTO THIS 13^th^ DAY OF FEBRUARY, 2015
[Original signed by]
David C. Gavsie Associate-Chair, OCPC
Georges Bedard Member, OCPC
Zahra Dhanani Member, OCPC