ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Tribunals Ontario

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: Costa v Toronto Police Service, 2017 ONCPC 14

Date: October 13, 2017

Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Between:

Constable Daniel Costa Appellant

and

Toronto Police Service Respondent

DECISION and order

Panel: D. Stephen Jovanovic, Associate Chair Ted Crljenica, Vice-Chair Katie Osborne, Member

Appearances: For the appellant: Mark J. Sandler and Amanda M. Ross, counsel for the appellant For the respondent: Sie-Wing Khow, counsel for the respondent

Place and date of hearing: Toronto, Ontario May 23, 2017

Introduction

[1]. This appeal arises from the decision of Inspector Richard Hegedus (the Hearing Officer) dated September 15, 2016. The appellant had pleaded guilty to one count of deceit contrary to section 2(1)(d)(i) and one count of insubordination contrary to section 2(1)(b)(ii) of the Code of Conduct, Ontario Regulation 268/10 (the Code) under the Police Services Act (the PSA).

[2]. The penalty imposed by the Hearing Officer under section 85(1)(b) of the PSA was the dismissal of the appellant from the respondent within seven days, unless he resigned before that time. This appeal deals with the penalty only.

Disposition

[3]. For the reasons that follow, the penalty of dismissal is set aside and varied as follows:

1. On the conviction for insubordination, we order the forfeiture of nine days’ pay.
2. On the conviction for deceit, in addition to the above, we order that the appellant be suspended without pay for thirty days and that upon reinstatement he be demoted to the rank of fourth class constable for a period of two years.

Overview

[4]. The hearing proceeded on the basis of an Agreed Statement of Fact (the ASF). The following is a summary of the evidence taken from the ASF and the decision of the Hearing Officer.

[5]. The appellant began his employment with the respondent in December 2009 and was a third class constable when the events giving rise to the charges arose.

[6]. The York Regional Police Service (the YRPS) homicide squad was conducting an investigation into a murder that occurred on July 2, 2011. The appellant’s younger brother Michael was not a suspect but a person of interest who the YRPS wanted to interview. Michael told the appellant that he was afraid for his life and wanted to leave Canada.

[7]. The appellant decided to assist Michael and on July 5, 2011 bought him a one-way airline ticket to Rome, Italy scheduled to depart at 8:00 p.m. on July 7,2011.

[8]. Michael was in fact interviewed by the YRPS at approximately 3:00 p.m. on the afternoon of the 7th. He denied any involvement in the homicide but admitted that he was having an affair with the victim’s wife. He indicated that he did not want to cooperate in the investigation because he believed that his own life was in danger and that the police could not protect him. He believed that he might have been the intended victim of the killer. Michael expressed a lack of confidence in the ability of the police to protect him as he had been the recent victim of a yet to be solved knife attack. The interview was completed.

[9]. At no time did the interviewing detective advise Michael that he could not leave the city nor was he asked if he had any plans to do so. The appellant was scheduled to be interviewed by an investigator later the same evening. One hour before the scheduled interview, the appellant drove his brother to the airport where he boarded the flight for Rome and left the country.

[10]. At approximately 9:30 that evening, the appellant gave a sworn KGB videotaped statement (a statement with a warning that it may be used in court). He was warned by the investigator of the potential consequences for not telling the truth. The Hearing Officer’s summary of that interview was as follows:

Constable Costa indicated at that time, on repeated occasions that he did not know where his brother was. The investigator did not believe Constable Costa and provided him with repeated opportunities to be truthful and clarify his statement on this issue. (Investigators asked him 6 times throughout the interview if he knew the whereabouts of Michael Costa). Constable Costa continued to deny that he had any knowledge of his brother’s whereabouts or activities. The interview lasted for about 1 hour.

[11]. The appellant obtained legal advice the following morning. His lawyer then delivered a letter signed by the appellant to Detective Cooke of the YRPS who had conducted the interview of the appellant. The letter indicated that some of the information the appellant had provided was not accurate. The appellant admitted to having purchased a ticket for his brother and to having driven him to the airport.

[12]. The appellant attended, with counsel, an interview with the respondent’s Professional Standards Division on July 22, 2011. He admitted that he had not been entirely truthful during the interview with the YRPS investigator and that he had provided false information to the investigator. Three months later the YRPS charged the appellant with a criminal offence arising from the statements he made during the interview.

[13]. The respondent’s Professional Standards Division conducted an audit of the appellant’s computer activity. The audit revealed that the appellant, on January 5, 2011, had accessed the Canadian Police Information Centre (CPIC) and other records of the respondent to obtain information about his brother. When asked about these searches, the appellant indicated that his brother was not receiving information “directly” from the YRPS but was receiving emails and phone calls from the suspect in his stabbing.

[14]. The appellant admitted that he accessed the records to satisfy his personal interest about his brother and not for the purpose of any police business. This unauthorized accessing of the computer records led to the charge of insubordination.

[15]. Michael Costa was interviewed by YRPS a second time in February 2012. He told Detective Cooke that prior to leaving the country he had gone to the appellant’s house, told him that people were going to kill him and asked the appellant what he was going to do to help him. Michael also indicated that his lawyer told him at one point not to come back to Canada as the police had evidence that there was “a hit on his head”.

[16]. Detective Cooke confirmed to Michael that the YRPS had some information that the word on the street was that people wanted to come after him because they believed he had some involvement in the homicide of his girlfriend’s husband.

[17]. No witnesses were called by either party before the Hearing Officer.

Issues

[18]. The appellant acknowledged that decisions of Hearing Officers on penalties are entitled to some deference on appeal. He submitted, however, that the Commission should reverse the decision under appeal because the Hearing Officer:

1. Erred in principle or ignored the proper factors that should have informed the penalty imposed;
2. Relied on speculation or findings unsupported by or inconsistent with the evidence and unfairly diminished clear and undisputed evidence of mitigation;
3. Misapprehended or failed to appreciate important evidence bearing upon the penalty imposed;
4. Failed to properly consider significant mitigating factors;
5. Erred in law in placing diminished weight on character letters (rather than viva voce evidence) when the prosecutor did not request that the authors be called as witnesses;
6. Erred in law in relying on the Chief of Police’s decision to suspend the appellant pending the hearing to support his findings.

[19]. The respondent submitted that the sole issue for determination was whether the penalty of dismissal was reasonable.

Analysis

[20]. The role of the Commission in reviewing a penalty decision was set out in Karklins v. Toronto (City) Police Service, 2010 ONSC 747 (Div. Ct.) at para. 10:

The Commission’s function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether the Hearing Officer fairly and impartially applied the relevant dispositive principles to the case before him or her. We can only vary a penalty where there is a clear error in principle or relevant material facts are not considered. This is not something done lightly.

[21]. Similarly, in Kobayashi et al and the Waterloo Regional Police Service, 2015 ONCPC 12, the Commission wrote the following:

…the Commission is not permitted to reweigh the dispositional 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.

[22]. To the respondent’s point that we are to consider the reasonableness of the decision, the question to be addressed is: “Does the decision fall within a range of possible, acceptable outcomes that are defensible in respect of the facts and law? See Dunsmuir v. New Brunswick, 2008 SCC 9.

[23]. The Court in Dunsmuir also wrote “In judicial review, reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process.” This statement also applies to the Commission’s review of a decision of a Hearing Officer.

[24]. In Williams and Ontario Provincial Police, (1995), 2 O.P.R. 1047 (O.C.C.P.S.) the Commission identified three key considerations for Hearing Officers to take into account when assessing an appropriate penalty. These were the nature and seriousness of the misconduct in question, the ability to reform or rehabilitate the officer and the damage that would occur if the officer were to remain on the force.

[25]. Having stated these general, guiding principles we now turn to the submissions of the parties, subject to one observation. The appellant in his factum raised the six issues set out in paragraph 18 above followed by sixty-two paragraphs of submissions with no orderly relationship to the issues stated. It would have been helpful to have each issue followed by the argument on the point, or simple sub-headings.

[26]. In our view, the penalty imposed by the Hearing Officer was outside of the reasonable range for misconduct of the nature and character that occurred in this case. While the appellant’s initial false statement was troubling and serious, within 24 hours, acting on his own initiative the appellant admitted his conduct and recanted his statement. The penalty in such a case must reflect not just the seriousness of the initial conduct but also the very real steps the appellant took to ameliorate his initial misconduct. In this case, a penalty of dismissal was not reasonable.

[27]. In coming to the penalty that he did, the Hearing Officer erred in principle by considering the following factors as aggravating features in the course of determining the appropriate penalty:

i. First, he mischaracterized the appellant’s admission of having made a “mistake” as being an attempt to minimize the seriousness of the initial misconduct. ii. Second, his finding that the appellant had created a “risk that a dangerous offender would not be apprehended in a timely fashion or would not be brought to justice” was speculation and not an available finding on the evidence before him. iii. Third, he improperly relied on the fact that the respondent had suspended the appellant as evidence of the aggravating nature of the misconduct. This was not based on any evidence and raised concerns about the Hearing Officer’s independence and impartiality. iv. Fourth, he appeared to have held the appellant accountable for the erosion in public trust caused by inaccurate media reporting about the case.

[28]. The morning after his interview with the YRPS and after consulting with a lawyer, the appellant recanted what he had lied about hours earlier. He signed a letter indicating that some of the information he had provided was not “accurate”. He also provided the correct information as to the circumstances of his brother’s departure.

[29]. The Hearing Officer wrote the following:

Constable Costa minimized his misconduct by characterizing his repeated lies during the interviews having provided inaccurate information…I am not convinced that Constable Costa has fully recognized the seriousness of the misconduct or has demonstrated the potential for rehabilitation. His guilty pleas and admissions, while positive steps do not offset the fundamentally aggravating nature of the misconduct especially when coupled with his characterization of that misconduct:

I also have concerns that due to his minimization and characterization of the misconduct, the gravity thereof has not been sufficiently acknowledged.

[30]. Later in the reasons, the Hearing Officer wrote, “That letter demonstrated that Constable Costa had recognized the seriousness of the misconduct. This is also a mitigating factor”. The Hearing Officer wrote both that the appellant had recognized the seriousness of his misconduct and had not recognized its seriousness, two seemingly inconsistent findings.

[31]. In his interview with Professional Standards, the appellant did term his actions as a “mistake” and sought to some extent to explain his actions by stating that he was sleep deprived and under stress.

[32]. The Hearing Officer wrote the following:

I do not concur with Constable Costa’s categorization of these events as mistakes. Mistakes are inadvertent or actions taken as a result of momentary misjudgment, hence the term “mistake”. This was not a case where a momentary lack of judgment caused Constable Costa to make an error. Constable Costa made excuses to Professional Standards investigators indicative of minimization stating he had been given short notice, had been sleep deprived, had barely eaten, and was under stress.

[33]. The prosecution did not suggest at the hearing that the appellant was trying to minimize his conduct by using the word mistake or by providing an explanation for his actions, as surely he was entitled to do.

[34]. In another part of the decision, the Hearing Officer wrote the following:

In regards to the potential to reform or rehabilitate Constable Costa because of his characterization of his misconduct in a number of instances as being mistakes or having provided inaccurate information as well as minimizing the gravity thereof, I am not convinced that it has been demonstrated that he has the potential to reform or be rehabilitated.

[35]. The Hearing Officer appeared to be fixated on the appellant and his counsel using the word “mistake”, a matter of semantics, rather than the appellant’s acknowledgement of the seriousness of the misconduct as set out above.

[36]. An equally troubling error is the fact that the Hearing Officer wrote that the appellant’s “failure to be truthful created a risk that a dangerous offender would not be apprehended in a timely fashion or would not be brought to justice.”

[37]. The difficulty with that comment is that it was not supported by any evidence. The YRPS had already interviewed Michael Costa. He was not a suspect and was not warned to stay in the country. He returned voluntarily for a second interview. The appellant advised the YRPS of his brother’s whereabouts the following morning. No one from the YRPS was called to testify that the appellant’s lies about not knowing where his brother was somehow imperiled the investigation or contributed to the risk found by the Hearing Officer. The finding was simple speculation that should not have been used in an attempt to support the appellant’s dismissal. This amounted to an error in principle.

[38]. We agree with the appellant that the Hearing Officer committed another error in principle when he placed some reliance on the actions of the respondent in keeping the appellant suspended through the hearing. There are several difficulties with the Hearing Officer having done so. He wrote, in part, the following:

It is noteworthy that Constable Costa has been under suspension since these events came to light in July, 2011. The suspension was confirmed by the Chief of Police and has remained continuously in effect which underscores the seriousness of the misconduct and the manner in which it has been treated by the Service. The suspension of a Service member is not undertaken lightly and is only confirmed when the risk to having the member remain in service outweighs the ability to assign them to any duty. Regular reviews are conducted and risks are assessed by senior Service management to determine if the member can be reinstated and in this case no viable options were available to allow him to return to active duty.

[39]. The Hearing Officer was appointed by the respondent’s Chief of Police in accordance with the procedures set out in the PSA. There was no evidence presented as to why the suspension was maintained, which evidence may not have been admissible in any event. In our view, it was unfair to the appellant for the Hearing Officer to rely, even in part, on a decision made by others not called to testify to justify his ordering the dismissal. We agree with the appellant that doing so undermined any semblance of independence and impartiality on the part of the Hearing Officer.

[40]. We do not agree with the respondent’s characterization of the Hearing Officer’s reliance on the fact of the suspension as being a “benign” error. In our view, it was more of an infectious error, one that permeated the decision.

[41]. The appellant submitted that the Hearing Officer placed undue emphasis on media reports about the appellant’s criminal charge in light of the inaccuracies in the reporting. The Hearing Officer noted that an article in the October 23, 2011 Toronto Star incorrectly reported that the appellant had been charged for covering up his brother’s involvement in a homicide. The Hearing Officer then wrote, “I acknowledge inaccuracies in the articles but they caused a widespread erosion of public trust due to significant public interest in this matter in light of Constable Costa’s occupation as a police officer.”

[42]. The appellant submitted that the Hearing Officer failed to appreciate that the appropriate consideration was the effect of the appellant’s conduct on the reputation of the respondent in the mind of a reasonable person, correctly apprised of the relevant facts, not a member of the public misinformed of the relevant facts.

[43]. We agree with the appellant that the media’s inaccuracy in reporting should not be the basis for concluding that the reputation of a police service has been tarnished. However, in our view, the fact that it was reported that the appellant made a false statement under oath would be sufficient for the reasonable person to conclude that some harm was caused to the respondent’s reputation.

[44]. It is difficult to see how any report of a lie by a police officer in a sworn statement would not negatively affect the public trust in any police service. Accordingly, we do not consider that the Hearing Officer’s reliance on an inaccurate media report was an error that, in and of itself, would justify setting aside the penalty decision.

[45]. Having decided that the penalty in this case was not reasonable and that the Hearing Officer’s reasoning process demonstrated significant errors what is the appropriate disposition?

[46]. When a police officer commits outright perjury or is found during the course of a criminal trial to have embellished or fabricated parts of his or her testimony, the public’s trust may be diminished to the point of being destroyed. Each such reported instance magnifies the public’s concerns.

[47]. We acknowledge that honesty and integrity are fundamental qualities for police officers to possess. These qualities are expected of them by the public, their services, fellow officers and the judiciary. The appellant’s admitted misconduct has to be examined in light of this expectation.

[48]. In White and Reid v. Windsor Police Services, OCCPS, November 10, 2000 the Commission wrote the following:

The penalty must be consistent with similar cases to maintain consistency in sentencing. While fact situations vary, a spectrum of misconduct and resulting penalties can provide a good comparative analysis to assist the Commission in determining an appropriate and fair penalty.

[49]. While consistency is an important principle to be applied, it is often difficult to do so due to the invariable differences in the nature of the misconduct, the employment history of the officer and the personal mitigating or aggravating factors in one situation when compared to others.

[50]. Dealing first with the conviction for insubordination, the parties agreed before the Hearing Officer that the “normal” penalty for this misconduct would be the single digit forfeiture of days’ pay. The Hearing Officer in light of the decision to dismiss the appellant did not specify a penalty for this offence.

[51]. The Hearing Office wrote the following:

In relation to the unauthorized database searches. I accept that his brother’s circumstances caused Constable Costa some concern. That concern does not excuse his misconduct. Constable Costa had options available to him. His actions should have focused on providing his brother support, advice, and assistance in contacting the YRPS instead of satisfying his personal interest in examining records that were not related to his duties and could not have been related to the initial YRPS investigation.

[52]. The appellant conducted database checks on January 5, 2011 after his brother had been the victim of an unsolved stabbing. He searched both CPIC, a database common to all services as well as MANIX, one used exclusively by the respondent.

[53]. Given the parties’ consensus that the appropriate penalty would have been a single digit forfeiture of days, the appropriate penalty would be the forfeiture of nine days.

[54]. The appropriate penalty for the deceit conviction requires some further consideration

[55]. The Williams decision cited above set out three key considerations to assist decision makers in arriving at an appropriate penalty. The first consideration is the nature and seriousness of the misconduct.

[56]. Any act of deceit, or conviction for deceit, by a police officer is serious but the case law does not establish the automatic penalty of dismissal. The context, or the nature, of the deceit must be considered.

[57]. Michael Costa believed that he may have been the intended victim of a homicide because he was having an affair with the deceased’s wife. Michael was himself the victim of an unsolved stabbing. He was afraid for his life.

[58]. The appellant, in an entirely ill-conceived attempt to assist his brother, repeatedly told the YRPS detective interviewing him that he did not know Michael’s whereabouts when in fact he had just driven him to the airport to board a flight to Rome. The detective who conducted the interview did not believe him.

[59]. Early the next morning after obtaining legal advice, he gave a written statement to the YRPS with the truth. There was no evidence that the appellant’s initial untruthfulness interfered in any way with the investigation. There was no evidence that the appellant’s deceit created any risk that a dangerous offender would not be apprehended in a timely fashion, or would not be brought to justice as the Hearing Officer concluded. Had there been even a modicum of such evidence, the result in this matter likely would have been different.

[60]. The appellant’s deceit did not cause anyone to be wrongly convicted nor did it amount to perjury as defined in the Criminal Code, as he was acquitted of that charge in March 2017.

[61]. The respondent relies on the Commission’s decision in Nesbeth and Windsor Police Service, 2015 ONCPC 23, which it considered to be a “similar” case of deceit, and in particular on the following passage:

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

[62]. In Nesbeth, the officer lied to a CBSA officer upon her return to Canada about whether she had made any purchases. In fact, when upon secondary inspection there was a quantity of alcohol found in her vehicle, she continued to deny that she had purchased the alcohol, blaming her mother who was also in the car. The officer later asked co-workers to look for infractions committed by CBSA officers because she had been “jammed” at the border.

[63]. The Commission also wrote:

We agree that the Hearing Officer was correct to consider the evidence of the Appellant’s constant attempts to prevaricate, deny, and mislead during and after the seizure of the alcohol at the border as being serious enough to warrant dismissal [emphasis added].

[64]. That officer maintained her denials for years through the hearing after which she was dismissed from the service. That “pattern of deceit and dishonesty” led to the conviction and dismissal. The facts of Nesbeth are markedly different from those in this matter.

[65]. The remaining cases relied upon by the respondent all have features that distinguish them from this matter, so much so that it cannot be said that, to be consistent, dismissal for a conviction for deceit is always appropriate.

[66]. The appellant did cite a number of decisions where seemingly more serious misconduct resulted in penalties of forfeiture of pay, hours or days off.

[67]. One such example is Jackson and Ontario Provincial Police, (Hearing Officer), March 13, 2015. Jackson was a Sergeant supervising a group of seven officers on an intended RIDE program. Rather than conduct the program Jackson had the officers spend the shift at a Tim Hortons. He directed the officers under his supervision to falsify their notes to indicate that they had conducted 64 vehicle checks when in fact they had not performed any. He also falsified an incident report. The penalty imposed was the forfeiture of 64 hours.

[68]. In Kan and Toronto Police Service, (Hearing Officer), May 19, 2015, the officer issued 19 Provincial Offence Notices to 12 individuals without sufficient or in some instances any evidence. He issued the Notices to vulnerable members of the community including the homeless and the mentally ill. The officer received penalties of 15 days forfeiture for discreditable conduct and 10 days for insubordination, concurrent.

[69]. In Mizra and Toronto Police Service, (Hearing Officer), February 27, 2014, the officer with the assistance of others equipped himself with electronic devices to receive on three occasions answers to qualifying exams to become a sergeant. The misconduct was found to be dishonest, sophisticated, premeditated, prolonged and motivated by the desire for personal advancement. The penalty imposed was a reduction in rank from first class to fourth-class constable.

[70]. The facts of the case before us are unique. Had the appellant not, within a matter of hours, corrected his deceit, or if the homicide investigation had been impeded in any way, his dismissal would have been within the range of reasonable penalties.

[71]. However, the remorse and potential for rehabilitation shown by the appellant in coming forward with the truth within a matter of hours must be recognized. Occurring as it did so quickly after the initial misconduct and prior to any charge being laid it must be seen as a genuine effort on the part of the appellant to atone for his initial misconduct. While providing a false statement under oath is serious, a penalty of dismissal in a matter like this could operate as a disincentive for police officers in future matters to correct their misconduct as soon as possible.

[72]. In varying the penalty of dismissal, we recognize that the appellant, like any other officer convicted of deceit, or any other type of misconduct, would be the subject of a McNeil report every time he is called to testify in court. He will be subject to cross-examination on his disciplinary record. However, in this case we do not see that as a basis for the dismissal.

[73]. Section 85(1) of the PSA sets out what penalties a Chief of Police, or in this case the Hearing Officer, may impose on an officer convicted of misconduct. If a dismissal is not imposed, the section sets out restrictions on suspensions, forfeitures of hours or days. This section also applies to decisions of the Commission.

[74]. We conclude that the appropriate penalty to be applied, recognizing these restrictions, would be the appellant’s suspension without pay for thirty days and that he be demoted to the rank of fourth-class constable for two years from the time of his reinstatement.

[75]. There is one further troubling feature to this matter that deserves a brief comment. This matter has now been ongoing for almost six years, all while the appellant has been suspended with pay. This type of inordinate delay serves the interest of no one, including the respondent and the public.

Order

[76]. Pursuant to section 87(8) of the PSA the Commission varies the penalty imposed by the Hearing Officer as follows:

1. On the conviction for insubordination, we order the forfeiture of nine days’ pay.
2. On the conviction for deceit, in addition to the above, we order that the appellant be suspended without pay for thirty days and that upon reinstatement he be demoted to the rank of fourth class constable for a period of two years.

Released: October 13, 2017

D. Stephen Jovanovic, Associate Chair Ted Crljenica, Vice-Chair Katie Osborne, Member