ONTARIO CIVILIAN POLICE COMMISSION
30 September 2016
FILE:
OCPC-16-0078
CASE NAME:
GOULD AND TORONTO POLICE SERVICE
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
CONSTABLE GARY GOULD (#8707)
APPELLANT
-and-
TORONTO POLICE SERVICE
RESPONDENT
DECISION
Panel: D. Stephen Jovanovic, Associate Chair
Katie Osborne, Member
Seppo Paivalainen, Member
Hearing Location: Ontario Civilian Police Commission
250 Dundas Street West, Suite 605
Toronto, ON M7A 2T3
Hearing Date: 14 June 2016
Appearances
Andrew McKay, Counsel for the Appellant Sharon Wilmot, Counsel for the Respondent
Introduction
This decision arises from an appeal by Constable Gary Gould, (the “appellant”) from the decision of Superintendent Debra Preston (the “Hearing Officer”) dated September 21, 2015. The decision imposed the penalty of immediate dismissal from the Toronto Police Service (the “TPS”) following his plea of guilty to a charge of use of unnecessary force contrary to the Schedule Code of Conduct, section 2(1)(g)(ii) O. Reg. 268/10, pursuant to the Police Services Act (the “PSA”).
The appellant submits that the Commission ought to quash the penalty of dismissal and impose a lesser penalty, suggesting a demotion to the rank of 2nd Class Constable for a term not exceeding one year, with conditions, if appropriate.
Decision
- Pursuant to section 87(8)(a) of the PSA, the Commission confirms the penalty of immediate dismissal as imposed by the Hearing Officer.
Background
The incident giving rise to the charge against the appellant was summarized before the Hearing Officer in an Agreed Statement of Facts and supplemented by the evidence of the appellant.
On December 29, 2013 at approximately 4:42 a.m., the appellant and his partner were assigned to Primary Response Duties and responded to a call for service for “unknown trouble” at an Esso Gas Station. They became aware that the call involved a drunk male who had urinated inside the gas station and assaulted one of its employees.
Upon arriving at the station, the appellant and his partner arrested Christopher Milani for assault, handcuffed and placed him in the back of their scout car, and then activated the in-car camera system (the “ICC”). Milani was intoxicated, belligerent, and spitting at officers while kicking at the door and window inside the scout car. When an officer told Milani to “knock it off” or be “hog tied” he spit towards that officer, who then pushed Milani’s head to the floor of the car telling him to stop spitting.
The appellant decided to confront Milani using what he described as “tactical communication”. He put his face in front of Milani’s and said “Spit in my face, I fucking dare you”. Milani obliged the appellant by spitting in his face, striking his eye and forehead. The appellant then responded by hitting Milani in the head three times with either an open or closed hand, then entered the scout car punching Milani several more times. Milani then agreed to behave, so the appellant pulled him up, telling him to “sit up like a good boy”.
The appellant immediately reviewed at the scene the ICC video, reported the incident to his supervisor, and then to a detective, after transporting Milani to the 33 Division. Milani complained about the assault by the appellant, who was subsequently charged and pleaded guilty to a charge of assault under the Criminal Code. He was granted a conditional discharge by Justice Chisvin, subject to a probationary period of six months.
Following a three-day Hearing, with the prosecution and defence making extensive submissions as to penalty, the Hearing Officer ordered the immediate dismissal of the appellant.
Issues and Submissions
- The appellant raised the following issues in his factum and oral argument:
i) Did the Hearing Officer err by drawing conclusions that were not supported by the evidence before her?
ii) Did the Hearing Officer err by misunderstanding, dismissing, or otherwise overlooking significant evidence that was heard during penalty submissions, which would result in a penalty less than immediate dismissal?
iii) Did the Hearing Officer err in failing to properly weigh the mitigating factors, when assessing penalty?
iv) Did the Hearing Officer err in her unbalanced comparison when assessing the aggravating and mitigating circumstances?
v) Did the Hearing Officer err in misapprehending the law by not giving proper weight to, misinterpreting, or not fairly considering case law provided by the Appellant’s counsel during sentencing submissions?
vi) Did the Hearing Officer err when she misinterpreted the decision of Superintendent Martin in a previous PSA conviction?
vii) Did the Hearing Officer err in imposing, in all of the circumstances, a harsh, excessive and unreasonable penalty that was inconsistent with penalties of similar misconduct?
To summarize, the appellant submitted that the Hearing Officer misunderstood the evidence, failed to give the evidence proper weight, overlooked significant evidence, failed to properly weigh mitigating factors and misapprehended the case law dealing with disciplinary sentencing.
The TPS submitted that the sole issue on appeal is whether the Hearing Officer’s determination of penalty was reasonable. The TPS further submitted that the Hearing Officer fairly considered and applied the following relevant factors in arriving at her decision to order the dismissal of the appellant:
the public interest
the seriousness of the misconduct
recognition of the seriousness of the misconduct
handicap or other personal circumstances
provocation
procedural fairness
employment history
potential to reform or rehabilitate
effect on the police officer and his family
consistency of penalty
specific and general deterrence
damage to the reputation of the service
The TPS conceded that the penalty of dismissal was at the high end of the range of penalties given in similar cases, but stated that it was nevertheless, “reasonable and warranted”.
The appellant’s prior disciplinary record comprised four informal (Unit Level) disciplines in 2009 and 2010, a conviction on one count of insubordination in 2012, and one count of discreditable conduct in January 2014, (the Superintendent Martin decision) for which he received a penalty of a loss of five days’ pay. This last conviction was for a non-work related event.
Reasons and Analysis
While we shall deal with the issues as raised by the appellant, the ultimate issue to be decided is whether the decision of the Hearing Officer, in all of the circumstances, is reasonable.
In Karklins v. Toronto (City) Police Service, [2010] O.N.S.C. 747 (Div. Ct.) the Court wrote that on the issue of penalty, the standard of review by the Commission of a Hearing Officer’s decision was reasonableness. The Court adopted the following statement:
The role of the Commission on a penalty is well established. Our 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 clear error in principle or relevant material facts are not considered. This is not something done lightly.
- Similarly in Kobayashi et al and the Waterloo Regional Police Service, [2015] O.N.C.P.C. 12, the Commission wrote the following:
…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 or relevant factors have been ignored, 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.
- We now turn to the issues raised by the appellant, some of which may be grouped together.
i) Did the Hearing Officer err by drawing conclusions that were not supported by the evidence before her?
- The appellant points to a number of alleged errors made by the Hearing Officer, including:
She erred by concluding that the appellant pleaded guilty in each prior disciplinary proceeding when, in fact, he pleaded not guilty to a discreditable conduct charge and was exonerated of the charge after a Hearing.
She erred in her conclusion about whether Justice Chisvin read the appellant’s notes or viewed the ICC video in its entirety.
She erred in stating “I struggle with the continued statements after each episode of misconduct that ‘he screwed up, he made a mistake, he has learned, and he will never do it again.’”
The Hearing Officer, at page 45 of her decision, did write that the appellant “pled guilty in criminal court and before the Tribunal, which he has done in each disciplinary proceeding wherein he had been involved”. This was clearly a misstatement as the appellant pleaded and was found not guilty in 2012, after a Hearing on a discreditable conduct charge (the Breen decision). However, the Hearing Officer went on to say that a guilty plea is an accepted sign of remorse, a comment ostensibly in the appellant’s favour. Beginning at page 52 through to page 55 of her decision, the Hearing Officer reviewed the appellant’s discipline history, but did not make reference to the Breen decision, a copy of which had been filed as an exhibit. Accordingly, it appears that she was aware that he had been found not guilty to that charge of discreditable conduct.
Reading the Hearing Officer’s entire decision, this apparent error in wording is not of sufficient seriousness to warrant our interfering with the penalty.
The Hearing Officer set out the difference between a Criminal Code trial and a PSA Hearing to determine discipline to be imposed on a police officer. What Justice Chisvin may have read or viewed is not, in our view, of particular relevance to her decision, or to our review of her decision.
The appellant took issue with the Hearing Officer’s comment about her struggle with the continued statements of the appellant after each episode of misconduct that he “screwed up, he made a mistake, he has learned, and he will never do it again.” The appellant claims that he never made these specific statements. The Hearing Officer, although she used quotation marks in her decision, appears to be referring to a compilation of general comments made throughout the Hearing by the appellant. For example, the appellant, as set out in the reasons of the Hearing Officer, agreed that his previous actions constituted bad judgment and that he tried to move forward (page 12); he screwed up (pages 10 and 13); and, a statement from his defence counsel that the appellant consistently accepted responsibility for his conduct and recognized the severity of it (page 40). We do not consider the Hearing Officer’s comment, while reading her decision as a whole, as we are required to do, as constituting a serious error.
ii) Did the Hearing Officer err by misunderstanding, dismissing, or otherwise overlooking significant evidence that was heard during penalty submissions, which would result in a penalty less than immediate dismissal?
The appellant questioned the Hearing Officer’s application of and comparison of this case to the decisions in Johnston and Toronto Police Service, OCPC 2012; Hall and Ottawa Police Service, O.C.C.P.S., 2007; Sylvester and Toronto Police Service, June 25, 2015 (a decision from the same Hearing Officer); Favretto v. Ontario Provincial Police Commissioner, [2004] 72 O.R. (3d) 581 (C of A); and, Venables and York Regional Police, O.C.C.P.S., #08-08.
The Hearing Officer’s consideration of these cases will be discussed later in these reasons.
iii) Did the Hearing Officer err in failing to properly weigh the mitigating factors when assessing penalty?
iv) Did the Hearing Officer err in her unbalanced comparison when assessing the aggravating and mitigating circumstances?
- In the first thirty-five pages of her decision, the Hearing Officer reviewed the Agreed Statement of Facts, the viva voce evidence, and the submissions of the prosecution and defence counsel. From pages 41 to 66, she considered the application of the following factors in deciding the penalty to be imposed on the appellant:
public interest
seriousness of the misconduct
recognition of the serious of the misconduct
handicap or other personal circumstances
provocation
procedural fairness
employment history
annual appraisals
complimentary activities including seven letters of appreciation
fourteen commendations over the appellant’s ten year career
discipline history
potential to reform or rehabilitate (32 letters of support)
effect on the police officer and the police officer’s family
consistency of discipline (30 decisions reviewed)
specific and general deterrence
We do not intend to review all of the mitigating and aggravating factors or the Hearing Officer’s consideration of each one. Our function is not to re-weigh these factors. Weighing these factors is a balancing act and different Hearing Officers, just like different Judges, may very well have reasonable differences in the weight to be given to each one.
We are not satisfied that the Hearing Officer committed such errors in principle in applying the factors, so as to warrant our interference. We recognize that the Hearing Officer may have erred, however, when she referred to the lengthy suspensions in the appellant’s work history. To the extent that she included a two and one-half year suspension, following a January 2010 charge against the appellant for assault causing bodily harm in an incident arising from an altercation with another officer, which charge was withdrawn, this suspension ought not to have played any part in her decision.
v) Did the Hearing Officer err in misapprehending the law by not giving proper weight to, misinterpreting, or not fairly considering case law provided by the Appellant’s counsel during sentencing submissions?
vi) Did the Hearing Officer err when she misinterpreted the decision of Superintendent Martin in a previous PSA conviction?
vii) Did the Hearing Officer err in imposing, in all of the circumstances, a harsh, excessive and unreasonable penalty?
All of these issues may be dealt with together as, other than the submission that the Hearing Officer misinterpreted a previous PSA conviction, they deal with her analysis of prior decisions, the need for consistency in imposing discipline and, ultimately, the reasonableness of her decision.
We agree with the appellant that the Hearing Officer erred when she wrote, “I find there to be no difference between the 2014 case and the case currently before the Tribunal”. That incident involved an altercation at his home with his spouse that required the attendance of the Durham Regional Police. The appellant was found hiding behind a car and, at least initially, refused to speak to the police or show himself, when one of the officers pointed a rifle at him and demanded that he do so. Nevertheless, this was a serious incident resulting in the appellant pleading guilty to a charge of discreditable conduct and receiving a penalty of forfeiture of five days’ pay.
The appellant also questioned the Hearing Officer’s reliance on a passage from Hearing Officer Martin’s decision in the 2014 disciplinary matter. At page 10 of the decision Hearing Officer Martin wrote, “I give him a stark warning now – should he appear in this tribunal again, and abuse of alcohol is a contributing factor to the misconduct, he will undoubtedly receive little to no mitigation for his personal circumstances.” However, at page 13 of the same decision, he also wrote, “Let me take this opportunity in this hearing decision, to tell you that should you appear in the police tribunal again you may very well receive significantly reduced mitigation for what most will, when pleading guilty early in a proceeding. You cannot expect to re-offend, and then expect a positive benefit from an early guilty plea”. What is clear is that the appellant must have known that, if further incidents warranting discipline were to occur, he might receive reduced mitigation for a guilty plea or for his personal circumstances, i.e. his prior use of alcohol. Therefore, although this matter did not involve alcohol use, the comments from the Martin decision would still be applicable.
The Hearing Officer was clearly appalled at the appellant’s actions with Milani. Excerpts from her decision are as follows:
I find that [the appellant] does not possess the requisite character attributes necessary to continue to hold a position of public trust and public office. I do not find that he is capable of continuing to protect the public based on his provoked assault of a handcuffed and vulnerable member of the public. There is no room in the law enforcement for anyone who would beat a handcuffed prisoner. There are times when an offence is so egregious that it eclipses the considerations that are afforded other officers. I am mindful that [the appellant] has addressed his personal circumstances, but I find that this offence is so egregious that it stands alone.
If [the appellant] were allowed to return to work, even with a demotion to 4th Class Constable, it would send a message to other officers that if they assaulted a handcuffed prisoner in their care and control, they can still wear the uniform.
This would send the wrong message to the community.
This decision must send a message to underscore to officers what is acceptable behaviour and what is intolerable and goes against our oath and what we as an organization value.
It is not uncommon in our profession to become involved with an intoxicated and aggressive person, who is ultimately arrested for an offence. His propensity to spit was vile and disgusting, but the way we conduct ourselves in the face of these stressors, indicates the degree of professionalism and understanding inherent in our role and demonstrates our tolerance of the circumstances.
The appellant submitted that a comparison of this matter with the Hearing Officer’s decision in Sylvester reveals a double standard. Officer Sylvester, who had a history of two criminal convictions, was then found guilty, after a trial, of exceeding the legal limit of alcohol in his system. He then pleaded guilty to a PSA charge of misconduct based on that latest criminal conviction. He received a twelve-month demotion to the rank of 4th Class Constable.
Constable Sylvester was at work for five years after the criminal conviction and was involved in the training of new recruits. The Hearing Officer wrote that he helped shape the future generation of policing, accumulated positive performance evaluations, and was commended for excellence in his performance during two significant events. Given this history, it is not difficult to understand why the Hearing Officer found that Sylvester’s usefulness to the TPS and the community had not been annulled. He had proven his usefulness over an extended period of time.
The appellant submitted that the Sylvester case was a closer comparator to his situation than the Johnston or Hall cases, as stated by the Hearing Officer. A comparison of these decisions does not appear to be especially useful in view of the Hearing Officer’s ultimate conclusion as to the appellant’s use of excessive force.
There is support in other decisions for the Hearing Officer’s finding that, even ignoring the appellant’s discipline history, a single incident could warrant a dismissal. In Venables, the Commission upheld the dismissal of the officer who “deliberately assaulted a handcuffed, unresisting, defenceless and confined prisoner”. Even without the discriminatory overtones that existed in Venables, the conduct of the appellant was unquestionably serious.
In Groot and Peel Regional Police Service (2002), 3 O.P.R. 1552 (O.C.C.P.S.) the Commission endorsed the following statement taken from an earlier decision:
Excessive use of force by a police officer which causes bodily harm, is one of the most serious forms of police misconduct. It must be made clear to the few who engage in such misconduct that serious penalties are likely to follow proof of such an event. Absent significant mitigating factors, such conduct can warrant dismissal.
- As has often been written, a decision will be unreasonable only if there is no line of analysis within the given reasons that would reasonably lead the Tribunal, from the evidence before it, to the conclusion at which it arrived. We conclude that the decision of the Hearing Officer falls within the definition of being reasonable and must therefore be confirmed.
Disposition
- Pursuant to section 87(8)(a) of the Police Services Act, the Commission confirms the penalty of immediate dismissal as imposed by the Hearing Officer.
DATED AT TORONTO THIS 30th DAY OF SEPTEMBER, 2016.
D. Stephen Jovanovic, Associate Chair
Katie Osborne, Member
Seppo Paivalainen, Member