Howard v. Ontario Provincial Police, 2016 CanLII 53057

ONTARIO CIVILIAN POLICE COMMISSION

DATE: August 16, 2016

FILE: OCPC-15-0683

CASE NAME: HOWARD AND ONTARIO PROVINCIAL POLICE

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

BETWEEN:

ONTARIO PROVINCIAL POLICE SERGEANT CAMERON HOWARD (#9160)

APPELLANT

-and-

ONTARIO PROVINCIAL POLICE

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

Hearing Date: 18 February 2016

Appearances:

Gavin J. May, Counsel for the Appellant Norman W. Feaver, Counsel for the Respondent and Adrien Iafrate, Student-at-Law

Introduction

1. This decision deals with an Appeal by Sergeant Cameron Howard (“the Appellant”) from the penalty imposed by Hearing Officer, Acting Superintendent Greg Walton (“the Hearing Officer”) following his plea of guilty to a charge of Discreditable Conduct, contrary to section 2(1)(a)(xi) of the Code of Conduct, Ontario Regulation 268/10.

2. The Hearing Officer, in his decision dated June 30, 2015, imposed a penalty of a twenty month demotion from Sergeant to First Class Constable with a return to the rank of Sergeant at the conclusion of the demotion period.

Decision

3. Pursuant to section 87(8)(a) of the Police Services Act (“the PSA”) the Commission confirms the penalty imposed by the Hearing Officer following the Appellant’s plea of guilty.

Background

4. An agreed Statement of Facts was filed with the Hearing Officer who summarized the salient facts as follows:

On August 26, 2014, Sergeant Howard consumed alcohol and declined a ride home. Upon driving home, his vehicle struck his residence and he exhibited signs of impairment. When a witness was using a phone to dial 9-1-1, he grabbed his/her wrists and hit the phone from their hand. Sergeant Howard entered his residence, consumed additional alcohol and fell asleep – Thunder Bay Police attended, but did not lay criminal charges.

The “witness” was the Appellant’s daughter.

5. The prosecutor before the Hearing Officer proposed a penalty of a twenty-four month demotion from Sergeant to First Class Constable with an automatic return to the rank of Sergeant thereafter. The defence proposed either a demotion to First Class Constable for a period in the range of nine to twelve months, or a demotion for a longer term from First Class Sergeant to Second Class Sergeant. The Appellant proposed at the hearing of this Appeal that the “longer term” would be for a period of twelve to fifteen months.

The Issues

6. The Appellant submitted that the Hearing Officer made a number of manifest errors in principle and failed to fairly and impartially apply relevant factors and sentencing principles so as to warrant a variation of the penalty by the Commission.

7. The alleged errors were summarized in the Appellant’s factum and his oral argument as follows:

A. Consideration of facts not in evidence;

B. Giving insufficient or no weight to mitigating factors;

C. Misdirecting and/or contradicting himself, and/or erring in law, regarding the application of internal OPP policies on penalties; and,

D. Improperly differentiating prior cases that were based on joint submissions.

Each of these submissions will be dealt with below.

Reasons and Analysis

8. There is no substantive difference between the parties’ positions as to the standard of review to be applied by the Commission in reviewing a penalty decision of a Hearing Officer. As stated in Wong and Toronto Police Service 2015 ONCPC 15:

[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.

See also: Karklins v. Toronto (City) Police Service, 2010 ONSC 747 (Div.Ct).

9. 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.

A. Consideration of Facts Not in Evidence

10. The Appellant’s submission regarding this ground of appeal is two-fold. First, he submits that it was an error for the Hearing Officer to review the current salary structure of the Respondent and second, that in doing so, he drew an erroneous or illogical conclusion. The parties agree that the Respondent’s salary structure was not formally admitted as an Exhibit before the Hearing Officer despite their submissions before him on how a period of demotion either to a First Class Constable or a Second Class Sergeant would financially impact the Appellant.

11. Given the two demotion options presented by the Appellant, it should not have come as a surprise that the Hearing Officer would consider the salary structures. However, the Appellant relies on two decisions in support of his argument that the salary structure ought not to have been considered. In our view, both of these decisions are distinguishable from the present case. In Rusnak and Tillsonburg Police (1980), 1 O.P.R. 457, the Police Chief was both the “complainant and judge”, a practice that the predecessor to the Commission over the objection of Rusnak, found to be acceptable under the provisions of the then Police Act. However, a new Hearing was ordered when the Chief, in his reasons, relied on information gathered in the prior meeting with Rusnak and in meetings with another Sergeant detailing Rusnak’s alleged insubordination. None of this “information” was called by way of evidence at the Hearing which resulted in the dismissal of Rusnak. Obviously, there was no opportunity to cross-examine the information that the Hearing Officer used in his decision to dismiss Rusnak.

12. In Lamirande and Ontario Provincial Police (1970), 1 O.P.R. 34 (O.P.C.), another decision of the predecessor to the Commission, the Hearing Officer placed some weight on a “black book” kept by Lamirande detailing “indiscretions” of other officers in his detachment. It appears from the decision that the “evidence” disclosed the existence of the black book, but it is not clear as to what extent the Hearing Officer used it in his decision. We do not believe that this case assists the Appellant.

13. The salary structure referred to by the Hearing Officer was not provided to us at the hearing of the Appeal so we cannot determine the difference in the financial impact on the Appellant between the two demotion scenarios presented. The Appellant made the following submission before the Hearing Officer, as found at page 70 of the transcript:

…there are two options I’d put forward to you today and one is a bit of an unusual option which I haven’t frankly seen in any cases, which is a demotion within rank of Sergeant one to Sergeant two. That would be, even if it’s for a longer period of time than you would for a demotion to First-Class Constable, it would be less of a cash flow issue for Sergeant Howard…if you go with the more traditional demotion to First Class Constable of course my position would be much lower than what my friend has suggested of two years to something in the nine - in around the nine to twelve month range.

14. The Hearing Officer wrote that a longer demotion within the rank of Sergeant would result in a salary loss disparity that was minimal. The Respondent submitted that the Hearing Officer was correct in his analysis, that the total salary loss disparity was minimal between the options the defence presented. In our view, the issue can be resolved by the Hearing Officer’s ultimate conclusion in rejecting the within rank demotion. He wrote the following at page 14 of his decision:

Demoting Sergeant Howard within the Sergeant rank would satisfy specific deterrence; however, I am not convinced it meets the general deterrence threshold. Rank holds higher expectations. It has been well established, with increased rank and/or responsibility, comes increased sanctions. I find that general deterrence far outweighs negligibly reducing the financial strain.

15. This reference to a financial strain appears to refer to the cash flow issue raised by the Appellant above. The Hearing Officer decided that a within-rank demotion was simply not appropriate in the circumstances so any reliance on the arithmetic involved between the two options appears to be irrelevant. Accordingly, we do not accept this ground of appeal.

B. Giving Insufficient Weight to Mitigating Factors

16. The Appellant submitted that mitigating factors must, by definition, reduce the penalty that might otherwise be imposed and that the penalty should have been lower than the highest penalty imposed for similar conduct in other situations which he submitted would have been a demotion of two years.

17. The Hearing Officer began his consideration of the appropriate penalty by stating that he was required to strike a balance between expectations of the community, the needs of the organization and fairness to the officer. He asked himself first, what was an appropriate duration of a demotion evaluating all aggravating and mitigating factors? Second, was a demotion within the Sergeant rank appropriate given the mitigating circumstances presented by the defence?

18. He then reviewed the following factors:

• Public interest
• Nature and seriousness of the misconduct
• Employment history
• Damage to the Respondent’s reputation
• Need for deterrence
• Ability to reform or rehabilitate the police officer
• Consistency [of penalty]

19. The Appellant submitted that the evidence of mitigating factors included the following:

• He was off duty
• No criminal charges were laid
• He was civil and co-operative with the investigating officers from Thunder Bay
• He pleaded guilty
• His loss of his wife, grandmother and near loss of his mother
• The stress of being a single parent
• Treatment for Post-Traumatic Stress Disorder (PTSD)
• Alcohol addiction
• Good work record with no previous discipline

20. The Appellant also advanced the argument that, after even a cursory review of the cases, penalties imposed on the Respondent`s officers are quite high as compared to other police services and that to maintain the integrity and credibility of the police disciplinary system in Ontario, the Commission should, by its decision, effectively establish province wide standards that do not vary from service to service.

21. We are not satisfied that the Hearing Officer failed to give insufficient weight to mitigating factors. He recognized the treatment being received by the Appellant for his PTSD and his alcohol addiction and considered that the Appellant would bring value in the future to the Respondent. While the reasons of the Hearing Officer could have been somewhat more expansive in his weight of the mitigating factors, we adopt the following statement from the Supreme Court of Canada decision in Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. where it wrote the following:

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.

In our view, the Hearing Officer directed himself to consider the mitigating circumstances presented by the defence. We do not find any demonstrable error in principle in his analysis.

22. The Hearing Officer reviewed the penalties imposed in a number of other cases noting the parallels, as well as the obvious and subtle differences in the facts, and the sanctions imposed. He placed some reliance on Kenney v. O.P.P., cited by the prosecution and O.P.P. v. Pritchard, cited by the defence. In Kenney, there was a two-year demotion, while in Pritchard, there was an eighteen-month demotion.

23. We see no error in principle in the Hearing Officer’s analysis of previous decisions and adopt what appears to be his underlying rationale in deciding the appropriate penalty. As stated by the Commission in Devine and O.P.P., OCCPS, November 26, 2008:

It is clear that drinking and driving is conduct which constitutes serious misconduct. It is conduct which cannot be tolerated and for which a substantial penalty must be assessed. Both the community and police services across Ontario have become increasingly less tolerant of drinking and driving. Police forces have expended considerable resources to combat drinking and driving. Clearly, the perception of the seriousness of this misconduct has increased with the passage of time.

24. We take no issue with the Hearing Officer stating his belief that the public’s perception of the seriousness of drinking and driving by police officers has increased in the subsequent years. We are of the view that the penalty imposed by the Hearing Officer was not so inconsistent with penalties applied in other situations so as to warrant the Commission’s intervention.

C. Misdirection Regarding Internal O.P.P. Policies

25. We do not accede to the Appellant’s argument that the Hearing Officer fettered his discretion or misdirected himself in his consideration of Standford and O.P.P., OCCPS, November 28, 2000 and Hilliard and O.P.P., November 14, 2014. A fair reading of the Hearing Officer’s decision satisfies us that he took his responsibility to make an independent decision based on the evidence and submissions before him seriously, without abdicating his role as an adjudicator as suggested.

D. Improperly Differentiating Cases Based on Joint Submissions

26. We see no error in the Hearing officer commenting that certain cases were decided based on joint submissions. As the Appellant pointed out, a Hearing Officer will never know the details of settlement discussions leading to joint submissions. We are not satisfied that the Hearing Officer discounted, entirely, cases dealing with joint submissions to the degree that would amount to such an error in principle to warrant our varying the penalty.

27. One final comment should be made dealing with the Appellant’s submissions that Part V. of the PSA is “skewed” in favour of “employers” with its built-in bias, a common argument presented to the Commission. The Commission’s function on an Appeal is clearly established by the PSA and the case law. Part of its statutory mandate of civilian oversight is to hear Appeals from decisions of Hearing Officers to ensure that sentencing principles are properly applied, without bias.

Disposition

28. Pursuant to section 87(8)(a) of the Police Services Act, the Commission confirms the penalty imposed by the Hearing Officer following the Appellant’s plea of guilty to a charge of discreditable conduct.

DATED AT TORONTO THIS 16th DAY OF AUGUST, 2016

D. Stephen Jovanovic, Associate Chair Winston H. Tinglin, Member Seppo Paivalainen, Member