ONTARIO CIVILIAN POLICE COMMISSION

DATE: July 27, 2016

FILE: OCPC-15-0574

CASE NAME: UPPAL AND TORONTO POLICE SERVICE

IN THE MATTER OF AN APPEAL UNDER SECTION 87 (1) OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

CONSTABLE VISHAL UPPAL

APPELLANT

-and-

TORONTO POLICE SERVICE

RESPONDENT

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Winston H. Tinglin, Member

Seppo Paivalainen, Member

Hearing Location:

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, ON M7A 2T3

Appearances:

Lawrence Gridin, Counsel for the Appellant Sie-Wing Khow, Counsel for the Respondent

Introduction

1. This decision arises from an Appeal by Constable Vishal Uppal (the Appellant) from his conviction on November 12, 2014 on the following charge:

You are alleged to have committed misconduct in that you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Police Force, contrary to section 2(1)(a)(xi) of the Schedule Code of Conduct Ontario, Regulation 268/10 and therefore, contrary to section 80(1)(a) of the Police Services Act,

R.S.O. 1990, as amended

2. The Appellant also appeals the penalty decision of Hearing Officer Preston (the Hearing Officer) imposing the forfeiture of eight days’ or sixty-four hours’ pay.

3. The Appellant was acquitted of a second charge of misconduct arising from events related to the first charge.

Decision

4. Pursuant to section 87(8)(a) of the Police Services Act (the PSA) the Commission confirms the finding of discreditable conduct and the penalty imposed by the Hearing Officer.

Background

5. The Invictus Bar and Grill was owned by Mr. Evaristo Mountinho (“Mr. Mountinho”) in conjunction with his two sons, Nelson and Pedro. The Appellant attended the restaurant on a number of occasions between 2010 and 2013 during which he received ten to twelve free meals, generally at a value between $10.00 to $20.00 each.

6. The Appellant, on virtually all of these occasions, attended the restaurant while in uniform, often entering through the back door, directly into the kitchen after ordering his meals in advance. The only payment he ever made was when he left a $5.00 tip for a waitress.

7. Nelson and Pedro testified that they were at the restaurant several times when the Appellant phoned in an order for food, picked up the order, but never offered to pay for the meal. Pedro also testified that he observed the Appellant consume alcohol in the kitchen up to five times. Mr. Mountinho, although served with a summons, refused to attend before the Hearing Officer, but a joint agreement was reached to present as evidence a

statement he made to the Respondent’s Professional Standards Division during its investigation of the Appellant’s conduct.

8. The statement indicated that Mr. Mountinho never asked the Appellant to pay for his meals and told all of the restaurant’s employees that the Appellant was to receive his meals for free. Mr. Mountinho also indicated that he never saw the Appellant consume alcohol in the restaurant and had no recollection of one of his sons telling him that the Appellant had done so.

9. The Hearing Officer heard evidence from a number of police officers, including one who was with the Appellant on an occasion when he went to the restaurant. One officer, Constable Simoes, testified that in June 2013, he went to the restaurant, but not with the Appellant, spoke with Mr. Mountinho about the Appellant receiving free food, and formed the impression that Mr. Mountinho was being pushed to give away food to the Appellant. It was Constable Simoes who reported the encounter to his supervisor, which report eventually led to an investigation by the Professional Standards Division and the charges against the Appellant.

10. The evidence of the Appellant will be reviewed below.

The Issues

11. The Appellant stated that the standard of review with respect to a Hearing Officer’s findings of fact is reasonableness and correctness on questions of law, citing Drake v. Toronto Police Service, 2015 ONCPC 5. He does not dispute the findings of fact made by the Hearing Officer, but submits that these facts are not capable of sustaining a finding of discreditable conduct, which he submits is a question of law for which correctness is the appropriate standard of review. He also submits that the Hearing Officer did not explain “why and how” the facts found supported the finding of discreditable conduct.

12. The Respondent submits that the issue in this matter is whether the facts, as found by the Hearing Officer (and now not disputed by the Appellant) amount to discreditable conduct, which is a question of mixed law and fact, which attracts a standard of reasonableness on review.

13. Both parties agree that the standard of review of a penalty imposed by a Hearing Officer was correctly stated in Karklins v. Toronto (City) Police Service, 2010 ONSC 747 (Div. Ct.) at paragraph 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.

14. The Appellant, however, adds the proviso that if there has been an error in principle, a relevant factor or relevant factors have been ignored, such as the penalty falling outside of the acceptable range, then the Commission may substitute the penalty that it thinks is appropriate.

Reasons and Analysis

15. The standard of review issue continues to arise in Appeals to the Commission and from decisions of the Commission. In Ontario Provincial Police v. Purbrick, 2013 ONSC 2276 the Divisional Court, in an Appeal from a Commission decision setting aside a Hearing Officer’s dismissal of a police officer, wrote the following:

10The appellant submits that the applicable standard of review for this Court to apply in considering the decision of the Commission is reasonableness on questions of mixed fact and law and correctness on questions of law. The respondent submits that the standard is reasonableness on both issues.

11The authorities relied on by the appellant with respect to a correctness standard for questions of law, predate the Supreme Court of Canada’s seminal decision in Dunsmuir v. New Brunswick, [2008] S.C.C. 9. In light of Dunsmuir and subsequent decisions, in particular Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 35 C.R. 654, we find

that even on questions of law where

related to interpretations of its home statute, the standard of review may be reasonableness. The one area in which a standard of correctness may apply is on questions of law not within the special area of expertise of the Commission.

12It is not necessary for us to determine precisely what such issues might attract the higher standard of correctness, if any.

13In this case, the appellant is not relying on any errors of law by the Commission. Rather, the appellant takes issue with the Commission’s analysis of questions of mixed fact and law and argues that the Commission’s decision is unreasonable in that regard.

16. In Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61, [2011] 3 S.C.R. 654 at page 34, the Court succinctly summarized when a correctness standard of review should apply as follows:

In other words, since Dunsmuir, for the correctness standard to apply, the question has to not only be one of central importance to the legal system but also outside the adjudicator’s specialized area of expertise.

17. The finding of the Hearing Officer that the Appellant was guilty of discreditable conduct is a question of mixed law and fact, which in our view, is to be reviewed on the basis

of reasonableness. However, even if the decision is reviewed on the basis of correctness, we would not interfere.

18. The Appellant frames the question of whether his conduct was discreditable by asking “the question on this Appeal…is whether it is discreditable for a uniformed police officer to accept free meals from a friend who refuses payment and insists on feeding the officer for free?” He describes his conduct as “borderline at worst” and not as obvious as cases where an officer has “engaged in criminality, acted immorally, or even abused his position.”

19. The Appellant acknowledges that “evidence of discredit is not required” as the test to establish such conduct as discreditable is an objective one, but submits that on the facts of this case, “the issue is far from clear cut.” He cites the evidence of Constable Simoes, whose reporting of the Appellant’s conduct led to the charge. Constable Simoes testified that:

• there was nothing wrong with a business owner supporting police and providing things for free, as it is a common practice that he had seen regularly.

• there was nothing unusual about businesses offering sometimes deep discounts and publicly advertising such discounts to officers on account of their profession.

20. The Appellant equates his conduct of repeatedly accepting free meals, while in uniform, to the “common practice for businesses (restaurants in particular) offering discounts to police.”

21. The Hearing Officer disagreed with the Appellant’s contention that, as he was friends with members of the Mountinho family, and Mr. Mountinho had instructed his staff not to charge him for meals, those “transactions were acceptable.” She stated that “as an organization and a profession, we have progressed far beyond the times where, as professionals, we allow business owners to look after police officers.”

22. The degree of friendship between the Appellant and, in particular, Mr. Mountinho, was stressed by the Appellant, while the Hearing Officer stressed that his actions often took place while he was on duty in uniform and that he did not socialize with the Mountinho family outside of the restaurant.

23. The Appellant submitted that the Hearing Officer did not set out in her reasons the “why and how” to support the finding of discreditable conduct. We disagree. Some of the key points in her decision are as follows:

• I will not cloud the issue with the delivery of pizza, corporate discounts and the explanation that a supervisor did not tell any of the officers that accepting such discounts was wrong. It is an officer’s duty to be cognizant of service governance and to conduct

himself/herself according to community standards.

• The difference between right and wrong is discernable.

• I find that the actions of Constable Uppal in accepting free food over an extended period of time…in his capacity as a police officer, whether a personal friend or a community acquaintance, was wrong.

• [His] behaviour brings the reputation of the Service into disrepute as it demonstrates a high degree of entitlement.

• If the general public knew that police officers, who receive a good salary based on their tax dollars, were continually receiving free meals while on duty in uniform, regardless of their familiarity with the owner, their behaviour would bring discredit to the organization and impact the reputation within the community.

24. In reviewing the reasons of the Hearing Officer, we are guided by the decision of the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) [2011] 3

S.C.R. 768 (“Newfoundland”), where it wrote the following at paragraph 16:

Reasons may not include all arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision- maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion…In other words if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of reasonable outcomes, the Dunsmuir criteria are met.

25. The Dunsmuir “criteria” refers to the existence of justification, transparency and intelligibility within the decision-making process that makes a decision reasonable, i.e. whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. The Court in Newfoundland accepted “perfection is not the standard” for reasons and that a reviewing court should ask whether “when read in light of the evidence before it and the nature of its statutory tasks, the Tribunal’s reasons adequately explain the basis of its decision.”

26. The Court in the Newfoundland decision also adopted the following statement:

When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties’ submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive.

27. In our view, the Hearing Officer conducted a detailed review of the evidence and had an objective basis for concluding that the actions of the Appellant did amount to discreditable conduct. Her decision should be confirmed.

28. The Appellant submitted that the penalty imposed by the Hearing Officer, which equated to the loss of approximately $2,800.00 was outside of the appropriate range, while acknowledging that a range for this type of offence has never been established. He stressed that his conduct should be viewed at the least serious end of the spectrum of misconduct.

29. The Respondent submits that “there is absolutely no basis to interfere” with the penalty imposed given the concept of progressive discipline and the fact that the Appellant had been previously disciplined for refusing to pay a business owner.

30. The Hearing Officer distinguished the conduct of the Appellant and, in particular, his phoning the restaurant in advance to prepare meals for him, then arriving in uniform to pick them up without paying, from the practice

of corporations offering discounts to police officers at large. She cited his expectation that his pre-ordered meals would be ready and free to him. She referred to the Service Governance policy 1.32 which reads, in part, as follows:

Unless authorized by the Chief of Police, members shall not use their official title, rank or membership in the Service, or the name of the Service

(a) to solicit

or accept

a

donation,

reward,

special

favour,

consideration, promise, gift, gratuity or contribution of any kind from any person, organization or corporation.

She found that this type of governance policy should have provided ample notice that police officers may not solicit goods or services and that officers who rely on their uniform to obtain benefits undermine the reputation of the Service.

31. The reasons of the Hearing Officer for imposing the penalty are detailed and reflect a careful review of the Appellant’s history with the restaurant. She reviewed his unit level discipline and his performance appraisals. She noted that these appraisals referred to the Appellant as, on the one hand, putting forward a bare minimum effort, but then, rating him satisfactorily or superior in his personal qualifications and meeting all the core competencies, as well as describing him as being “capable and effective when dealing with the public.”

32. Finally, the Hearing Officer rejected defence counsel’s proposal to convert the cost of the free meals to a forfeiture of hours, thereby depriving the Appellant of any benefit he had received. This was, in the circumstances, more of a quantitative than qualitative difference with the eventual order of the Hearing Officer.

33. The penalty of a forfeiture of eight days’ or sixty-four hours’ pay, in all the circumstances, may at first seem harsh. However, the reasons of the Hearing Officer and her concerns for the integrity of police officers do stand up to a “somewhat probing examination” and are reasonable. There were no errors in principle, and no relevant factors have been ignored. We therefore see no basis to interfere with the penalty imposed by the Hearing Officer.

Disposition

34. Pursuant to section 87(8)(a) of the Police Services Act, the Commission confirms the finding of discreditable conduct and the penalty imposed by the Hearing Officer.

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