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

Date: December 13, 2017

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

Between:

Constable Marc Gallant, Appellant

-and-

Ontario Provincial Police, Respondent

DECISION

Panel: D. Stephen Jovanovic, Associate Chair Jacqueline Castel, Member Winston Tinglin, Member

Appearances: James Girvin, Counsel for the Appellant Lynn Donnelly, Counsel for the Respondent

Place and date of hearing: Toronto, Ontario October 26, 2017

Introduction

1Constable Marc Gallant, the appellant, is appealing the September 8, 2016 decision of Superintendent Robin D. McElary-Downer (the Hearing Officer) finding him guilty of one count of Discreditable Conduct, contrary to s. 2(1)(a)(xi) of the Code of Conduct, Ontario Regulation 268/10 (the Code), under the Police Services Act (the PSA). The appellant is not appealing the penalty.

2The conviction arose in relation to a RMS (Records Management System) report written by the appellant on or about March 13, 2015. The report expressed his personal opinions and criticized an order that he conduct a missing person investigation. The report was entered in a system which was shared with other police services. The report was originally approved by the appellant’s supervisor but he was eventually asked, but not ordered, to make changes to it. The appellant refused to make the changes. The report was ultimately removed from the system by another supervisor.

3The respondent opposes the appeal.

DISPOSITION

4The decision of the Hearing Officer is revoked and the conviction set aside on the ground that she erred in finding that the content of the appellant’s report fell within the charge laid for discreditable conduct.

BACKGROUND

Civilian OPP Employee Requests Assistance Locating Tenant

5A civilian OPP employee (B.A.) in the appellant’s detachment requested assistance in determining if his tenant had abandoned his rental property. The appellant attended the property with B.A. who provided access to the property. Based on his observations of the dwelling, the appellant believed there was no evidence to support a conclusion that the tenant had abandoned the property or was missing.

6B.A. subsequently complained to Detective Sergeant (D/Sgt.) Allan about his problem locating his tenant.

Missing Person Investigation

7On March 13, 2015, the appellant was ordered by D/Sgt. Allan to conduct a missing person investigation in relation to the tenant and her child. The appellant believed that there was no basis for conducting a missing person investigation. He was also concerned that the investigation would be viewed as a conflict of interest, given that it was triggered by the complaint of a civilian OPP employee who was also a landlord looking to collect outstanding rent from his tenant. The appellant expressed his concerns to D/Sgt. Allan, but complied with the order and conducted the investigation.

8D/Sgt. Allan testified that he ordered the missing person investigation after the appellant entered the rental unit of the tenant, at the request of B.A. D/Sgt. Allan believed that since the OPP had become involved in confirming the woman’s and child’s absence, the OPP had a duty to ensure their safety by conducting the missing person investigation.

9Through his investigation, the appellant located the tenant and her child. The tenant was visiting her mother in a nearby town. The tenant and her mother complained to the appellant that the OPP was acting on behalf of a landlord who was an employee of the OPP. The appellant indicated that the OPP was concerned about the safety of the tenant and her son.

The Appellant’s RMS Report on Missing Person Investigation

10The appellant closed his investigation with the following RMS report:

Subsequent to this P/C Gallant was instructed to return to the detachment and speak to D/Sgt. Allan. D/Sgt. Allan expressed a concern that since we had been to this residence and had not found the tenant present, this should be treated as a missing person. Notwithstanding that there was signs of recent habitation, no signs of anything amiss, no external complaint of a missing person, and the very obvious conflict of interest in a uniform officer tracking down a dead beat tenant for the landlord who also happened to be an OPP employee, D/Sgt. Allan explicitly ordered P/C Gallant to conduct a missing person investigation to include investigative effort, CPIC entries and contacting CAS for the tenant’s child. The officer specifically confirmed with D/Sgt. Allan that he was ordering this investigation to take place. The officer believed this to be an unnecessary investigation that had little public safety value, serving only to provide the OPP the opportunity to say we had exhausted all investigative efforts, in the very unlikely event that something tragic had befallen [Ms. P.] and her child. This small value, only relevant in the most unlikely circumstances, was completely overshadowed by the very obvious optic of conflict of interest in expending uniform resources to track down a delinquent tenant for another OPP employee.

P/C Gallant, knew from previous experience with missing persons that D/Sgt. Allan would not be content with a third party indicating that this person was safe and visual confirmation would be required.

On return to detachment, P/C Gallant briefed Sgt. Prentiss on the results of the missing person in case queried and advised given the nature of the information found, it would be most appropriate to secure his daily journal outside the area easily accessible by [the landlord/civilian OPP employee]. While the officer had no fear that [the landlord/civilian OPP employee] would check through his notes, this added measure provides a small means of refuting any claim that the investigator made the current location information of [Ms. P.] available to her landlord and that this was the purpose of the investigation.

This matter is deemed as unfounded, and justified by the statement from [Ms. P.] “I am not missing, I am just at my mommy’s”.... (pp. 23-24 of the Decision).

Management’s Response to RMS Report

11D/Sgt. Allan read the appellant’s RMS report on March 16, 2015 and believed it to be unprofessional. On the same date, he raised his concerns with the detachment commander, Staff Sergeant (S/Sgt.) Brown. S/Sgt. Brown told D/Sgt. Allan she would have Sergeant (Sgt.) Leblanc address the concerns with the appellant.

12Sgt. Leblanc testified that he first learned of the RMS report on March 23, 2015 when he returned from vacation. He discussed it with S/Sgt. Brown and they agreed that parts of the report were not appropriate. They also discussed that the appropriate discipline would be either a verbal admonishment or a negative 233-10 (a written disciplinary notation).

13On March 25, 2015, Sgt. Leblanc spoke to the appellant about the report. The appellant explained why he wrote the report the way he did. At the end of the conversation, they agreed that the report would be left as written. Sgt. Leblanc also told the appellant that he would not be written up.

14On April 30, 2015, S/Sgt. Brown told Sgt. Leblanc that she had four concerns with the report and wanted it changed. Sgt. Leblanc met with the appellant again and highlighted the items in the report which needed to be changed and asked the appellant to make the changes. The appellant told him that in good conscience he could not make the changes. He also told Sgt. Leblanc, verbally and in a follow-up email, that if he was ordered to change the report, he would file an internal complaint. Sgt. Leblanc testified that he did not order the appellant to change the report.

15D/Sgt. Allan subsequently asked PC Lougheed, the second-in-command on the appellant’s platoon, to raise the concerns about the lack of professionalism in the report with PC Gallant. According to the testimony of D/Sgt. Allan, PC Lougheed did so and advised that the appellant refused to change the report.

16The RMS report was removed from the Niche system by Detective Staff Sergeant (D/S/Sgt.) Reive on June 4, 2015.

17The Appellant was charged with one count of discreditable conduct under section 2(1)(a)(xi) of the Code, which states:

“2(1)(a) DISCREDITABLE CONDUCT, in that he or she

(xi) 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.”

The Hearing & Decision

18The hearing took place over 3 days from June 15 to 17, 2016. The Hearing Officer heard evidence from the appellant and five other witnesses. In her decision, she concluded:

Based on my analysis, I find a reasonable person in the community, dispassionate and fully apprised of the circumstances would perceive the statements contained in PC GALLANT RMS report as discreditable. To this end, I conclude they meet the test of discreditable conduct, based on the clear and convincing evidence presented in this proceeding.

....I find PC GALLANT’S explanation for the manner in which he wrote his report not an excuse. He was provided with ample opportunity to make change and he failed to do so.

Issues on Appeal

19The appellant raised the following issues in his factum and oral submissions:

(1) Did the Hearing Officer’s conduct at the hearing and decision raise a reasonable apprehension of bias against the appellant?

(2) Did the Hearing Officer misapply the test for discreditable conduct?

(3) Did the Hearing Officer misapprehend evidence?

We find that the second and third issues are more appropriately framed as follows:

Was the finding of the Hearing Officer that the appellant’s conduct was discreditable reasonable?

Analysis

Standard of Review

20The standard of review to be applied by the Commission on an appeal from a decision of a Hearing Officer is reasonableness on questions of fact and correctness on questions of law. See: Ottawa Police Services v. Diafwila, 2016 ONCA 627. The question of whether the actions of the appellant amounted to discreditable conduct is a question of mixed law and fact, reviewable on a standard of reasonableness.

Did the Hearing Officer’s conduct and decision raise a reasonable apprehension of bias?

21Mr. Girvin submitted that the Hearing Officer’s conduct at the hearing and the comments in her decision demonstrated a reasonable apprehension of bias.

22Regarding her conduct at the hearing, he submitted that the Hearing Officer demonstrated her bias when she interfered in the cross-examination of the B.A. and “attempted to assuage his concerns” about creating a conflict of interest.

23Regarding the decision, Mr. Girvin submitted that the Hearing Officer demonstrated her bias when she stated in her decision that the appellant’s comments in his report were “void of maturity” and “conjuring the vision of a malcontent police officer”. Mr. Girvin argued that these comments were not supported by the evidence.

24Mr. Girvin also submitted that the Hearing Officer showed her bias when she harshly criticized the comments the appellant directed at D/Sgt. Allan in his report, yet she minimized the disparaging comments D/Sgt. Allan directed at the appellant at the hearing.

25The test for finding a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly. See: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at 394-95.

26The onus is on the party alleging a reasonable apprehension of bias to prove it. Cogent evidence is required to make out such an allegation. Suspicion is not enough, since it calls into question the personal integrity of the hearing officer and the integrity of the administration of justice. See: Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON CA), [2000] OJ No 4428 at para 131.

27In addition, concerns about an apprehension of bias should be raised as soon as possible. A party may be deemed to have waived its right to raise the issue of a reasonable apprehension of bias if it did not raise the issue at the earliest practical opportunity. See: Singh v. Canada (Minister of Citizenship & Immigration), 2005 FC 35 at para 18 and Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] SCJ No 129 at para. 175.

28Turning first to the Hearing Officer’s comments during the cross-examination of the B.A., based on our review of the transcripts, we do not find that the Hearing Officer influenced the substance of the cross-examination. The Hearing Officer stated at the hearing that she believed that Mr. Girvin was “going at this employee a little bit hard” and that the witness did not understand what was being asked. In the circumstances, we do not find that an informed person, viewing the exchange realistically and practically, would conclude that the Hearing Officer (consciously or unconsciously) would not be likely to decide the matter fairly.

29Moreover, Mr. Girvin did not raise concerns about a reasonable apprehension of bias, stemming from this exchange, at the time of the exchange or even in closing submissions. Rather, he waited until an unfavorable decision was rendered before raising the issue. While there may be extenuating circumstances where failure to raise the apprehension of bias from the outset does not amount to an implied waiver, there were no such circumstances in this case. See: SG v. Criminal Injuries Compensation Board, 2016 ONSC 7485.

30Turning now to the Hearing Officer’s comments about the appellant’s report, we find that the Hearing Officer’s descriptions (“void of maturity” and “conjuring the vision of a malcontent police officer”) were harsh given the content of the appellant’s report.

31However, we note that elsewhere in the decision the Hearing Officer complimented the appellant. For instance, she credited the appellant for his “intuitiveness” and for raising the potential conflict of interest with D/Sgt. Allan. In addition, she praised the appellant for the missing person investigation he conducted, calling it “meticulous” and leading to the “speedy find of the tenant and her child”. She also praised the appellant for his effective communication skills when interacting with the tenant.

32In these circumstances, we are not satisfied that an informed person, viewing the matter realistically and practically, would conclude that the Hearing Officer’s above two unfavorable descriptions of the appellant would deem her more likely than not to decide the issue unfairly.

33Mr. Girvin also argued that the Hearing Officer showed her bias when she minimized the negative comments made by D/Sgt. Allan about the appellant at the hearing, yet harshly criticized the comments made by the appellant in his report.

34We agree with Ms. Donnelly that the Hearing Officer had a different task in relation to analyzing the comments of the appellant, who was charged with misconduct, and D/Sgt. Allan who was a witness at the hearing. Her role was to assess whether the appellant’s comments rose to the level of discreditable conduct. Her role in relation to D/Sgt. Allan was to assess whether he was credible as a witness. The Hearing Officer explained why she did not draw a negative inference, from the negative comments D/Sgt. Allan made about PC Gallant, as follows:

I have considered Mr. Girvin’s submission in regard to D/Sgt. Allan’s disparaging comments about PC GALLANT. I draw no negative inference from them because of the context in which they were said. In saying what he said, I was able to quickly grasp why D/Sgt. Allan followed the chain of command instead of approaching PC GALLANT directly with respect to his report. On the second occasion, D/Sgt. Allan simply repeated what PC Lougheed had said to him. The third occasion came when Mr. Girvin pressed him for more information in regard the chain of command.

35We find that her decision not to draw a negative inference would not cause an informed person, viewing the matter realistically and practically, to conclude that it is more likely than not that the she would not decide the matter fairly.

36Accordingly, for the above reasons, we find that the appellant has not met the onus of proving a reasonable apprehension of bias.

Was the decision of the Hearing Officer that the actions of the appellant amounted to discreditable conduct reasonable?

37The appellant accepts that the Hearing Officer correctly stated the test for discreditable conduct. The Hearing Officer wrote “The test for discreditable conduct is primarily an objective one and can be measured in asking this question: Would a reasonable person in the community, dispassionate and fully apprised of the circumstances of the case perceive the statements contained in P.C. Gallant’s RMS report as discreditable?”

38However, Mr. Girvin submitted that the Hearing Officer misapplied the test by failing to consider contextual factors including management’s condonation of the appellant’s conduct and the inaction of the appellant’s supervisors. He also argued that the Hearing Officer misapprehended evidence when she did not give appropriate weight to the appellant’s belief that the missing person investigation constituted a conflict of interest and when she found that the appellant’s conduct rose to the level of discreditable conduct.

39The Hearing Officer’s finding of discreditable conduct was based on the following sentences in the RMS report:

• The officer believed this to be an unnecessary investigation that had little public safety value, serving only to provide the OPP the opportunity to say we had exhausted all investigative efforts, in the very unlikely event that something tragic had befallen [the tenant] and her child. This small value, only relevant in the most unlikely circumstances, was completely overshadowed by the very obvious optic of conflict of interest in expending uniform resources to track down a delinquent tenant for another OPP employee.
• ....knew from previous experience with missing persons that D/Sgt. Allan would not be content with a third party indicating that this person was safe and visual confirmation would be required.
• This matter is deemed as unfounded and justified by the statement from [Ms. P] “I am not missing, I am just at my mommy’s”.
• …dead beat tenant.

40The Hearing Officer found that the above comments were “insulting” and “derisive” toward D/Sgt. Allan, “void of maturity”, “self-serve” his personal opinion that the missing person investigation was not required, and that the latter two sentences were sarcastic. In addition, she found it “reckless writing” that the appellant failed to flag the term “deadbeat” as a quote from another. She concluded that these comments “erode one’s respect and confidence in PC Gallant as a police officer and ultimately would negatively tarnish the OPP’s reputation.” She also concluded that the reasonable person would perceive the statements as discreditable.

41We find that the Hearing Officer’s characterizations of the above sections of the report to be excessively harsh, acknowledging the sarcastic tone to the appellant’s comments. Her conclusion that these phrases rose to the level of discreditable conduct, and fell within the charge laid under s. 2(1)(a)(xi) of the Code, cannot, in our view, be reasonably be supported by the evidence.

42The appellant’s report was going to be treated as a performance issue. It was only when he threatened to file an internal complaint, if he was ordered to change the report, that it became a misconduct issue and charges were laid. The Hearing Officer states in her reasons that it was the appellant’s refusal to change the report which moved the matter from a performance to a misconduct issue.

43We find that the Hearing Officer erred when she concluded that the appellant was effectively ordered to change the report, even though Sgt. Leblanc did not use the words “I order you ...” Sgt. Leblanc was very clear in his testimony that at no time did he ever order the appellant to change his report. Ms. Donnelly also acknowledged, in response to a question from the panel, that the appellant was never ordered to change his report and that if he was and refused to do so, he could have been charged with insubordination.

44While some of the appellant’s supervisors testified at the hearing that they found parts of the report to be inappropriate, unprofessional and/or condescending, they did not behave in a manner which would suggest that they believed that the wording of these sections of the report would likely bring discredit upon the reputation of the OPP.

45The report was entered on the RMS system on March 16, 2015. D/Sgt. Allan expressed his concerns about the report to S/Sgt. Brown on the same day. She waited eight days before asking Sgt. Leblanc to speak to the appellant about the report. Sgt. Leblanc waited two more days before speaking to the appellant. However, instead of ordering the appellant to change the report, Sgt. Leblanc actually approved the report after listening to the appellant’s reasons for writing it in the way that he did. Thirty-six days later, S/Sgt. Brown asked Sgt. Leblanc to highlight four items in the report which required changing. Sgt. Leblanc did so, but did not order the appellant to make the changes. It was not until June 4, 2015, over two and a half months after the report was entered on the RMS system, that it was removed from the system by D/Sgt. Reive.

46Any one of these supervisors could have ordered the appellant to change the report or removed it themselves from the system when it came to their attention. The appellant’s supervisors acted like there was no urgency to address the concerns with the appellant or to having the report changed or removed from the system. Sgt. Leblanc testified that he did not believe that even a verbal warning or a negative 233-10 should be issued. He was satisfied that his discussion with the appellant was sufficient to address concerns with the report.

47As the Hearing Officer ultimately recognized in her Decision on Penalty (January 10, 2017), management’s response was “sluggish”, and its slow response sent a “mixed message” and “fogged the OPP’s assertion that PC Gallant’s conduct was unacceptable.”

48Based on the wording of the appellant’s report and our review of the record, the finding of the Hearing Officer that the report and the appellant’s actions in writing it amounted to discreditable conduct was not in our view reasonable. If the actions of the appellant were viewed objectively, we do not believe that a reasonable person in the community would have concluded that the report was “likely to bring discredit upon the reputation” of the respondent. The Hearing Officer’s conclusion that the appellant’s conduct was discreditable does not fall within a range of possible, acceptable outcomes, defensible in respect of the facts and the law.

49Bringing disciplinary charges, in the context of this case was, in our view, an overreaction to the appellant’s report. The appellant’s use of the language in the RMS report, as set out in paragraph 39 above, while sarcastic, should have been treated as a performance issue and addressed accordingly. It should be remembered that his direct supervisor, Sgt. Leblanc, felt that even internal discipline was not warranted. At one point he approved the appellant’s report. Sgt. Leblanc’s opinion would have been part of the “circumstances of the case” in considering whether the appellant’s actions amounted to discreditable conduct.

Order

50Pursuant to section 87(8)(a) the Commission revokes the decision of the Hearing Officer finding the appellant guilty of Discreditable Conduct.