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
Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Cst. Caitlyn van Straalen
Appellant
-and-
Ontario Provincial Police
Respondent
DECISION
Panel: D. Stephen Jovanovic, Associate Chair
John Kromkamp, Member
Karen Restoule, Vice-Chair
Appearances: Gavin J. May, counsel for the appellant
Amal Chaudry, counsel for the respondent
Place and date of hearing:
Toronto, Ontario
February 9, 2017
Introduction
1In June, 2014, PC Caitlyn van Straalen, the appellant, was charged with Discreditable Conduct contrary to section 2(1) (a)(ix) of the Code of Conduct enacted pursuant to the Police Services Act (the Act). This charge arose out of a conviction for driving with over 80 mg of alcohol per hundred milligrams of blood on May 10, 2014, while the appellant was off duty.
2On March 17, 2016, the appellant appeared before a Hearing Officer, Superintendent Robin McElary-Downer, and pleaded guilty to the charge. An Agreed Statement of Facts (ASF) was entered as an exhibit. Additionally, the prosecutor filed two policy memoranda issued by Commissioners of the OPP, relevant portions of the appellant’s human resources file and performance evaluations from 2013 through 2015.
3On May 3, 2016, the Hearing Officer imposed a penalty of a 21 month demotion from Provincial Constable First Class to Provincial Constable Second Class. At the end of the demotion period, the appellant was to return to her former rank of Provincial Constable First Class.
4The appellant is appealing the penalty and seeks to have the penalty reduced to either a forfeiture of 160 hours or, in the alternative, a demotion to Second Class Constable for a period of no greater than six months.
Disposition
5For the reasons set out below, the appeal is allowed, and the penalty varied to a demotion to the rank of Second Class Constable for a period of 12 months after which the appellant is to return to her former rank of Provincial Constable First Class.
Background
6The appellant has been a sworn police officer employed with the Ontario Provincial Police (OPP) since 2008.
7The facts of this matter were agreed upon by the parties. The ASF, filed as an exhibit stated as follows:
On the evening of May 10, 2014, while off-duty in the Town of Red Lake, where she was posted as an OPP officer. PC van Straalen consumed two glasses of wine with dinner at her in-laws' residence and some beer later that evening at a social gathering at another private residence. Twelve or more friends or acquaintances were in attendance at this second location, one of whom was a designated sober driver.
As PC van Straalen was preparing to leave the social gathering, she was offered a ride home with a sober driver, but declined the offer as she believed she was okay to drive. In fact, PC van Straalen even offered to drive others to the Legion, where there was another on-going social event.
Concerned that she may not be fit to drive, an individual at the social contacted members of the OPP Red Lake Detachment and informed them of the concern.
PC van Straalen subsequently left the gathering, driving herself.
At approximately 11:00 pm PC van Straalen was stopped at an OPP RIDE check which had been set up to intercept her. PC van Straalen admitted to the officers to drinking earlier at her in-laws' residence and to having consumed alcohol in the five minutes prior to being stopped. After hearing her admit that she had consumed alcohol, the RIDE officers formed grounds to suspect she had alcohol in her body and made the demand for a roadside test. The officers did not detect or note any indicia of impairment at this time. As PC van Straalen indicated she had consumed alcohol within five minutes of the stop, the roadside test was delayed for ten minutes. During the delay, PC van Straalen made comments to the officers to the effect, "Don't do this to me .... I know my body - I'm not going to pass". She told them that she just wanted to go home.
The first attempt to provide a suitable sample for the roadside screening device was unsuccessful - a blow interruption; the second attempt registered a fail. PC van Straalen was arrested and taken to the Red Lake OPP Detachment for breath tests.
Upon arrival at Detachment, one officer who interacted with PC van Straalen in the lodging area noted only a slight odour of alcohol coming from her breath and no other indicia of impairment.
PC van Straalen was cooperative with the qualified breath technician at the Detachment, who, approximately one and a half hours after PC van Straalen had been stopped, noted some indicia of impairment - strong odour of alcohol, watery/bloodshot eyes and flushed face. Also noted was that her speech was good, her appearance orderly and balance was "sure". The breath technician concluded that the effect of alcohol on PC van Straalen's ability to drive was "slight".
Two breath samples were taken at 12:28 am and 12:49 am, registering 128 and 116 mgs of alcohol in 100 millilitres (mls) of blood, respectively. PC VAN STRAALEN was charged with over 80, contrary to section 253(1)(b) of the CC.
On September 3, 2015, PC VAN STRAALEN pled guilty to the criminal charge and was fined $1,000 in addition to the mandatory one-year driving prohibition.
8Counsel for the appellant sought a forfeiture of 160 hours and/or a demotion in the range of three to four months. The prosecutor, Inspector O'Brien, proposed an eighteen month demotion. As noted, the Hearing Officer imposed a penalty of a 21 month demotion. This was as long as any penalty imposed in cases submitted to her for consideration.
Analysis
9The Commission acknowledges that there is no doubt that impaired driving is a serious offense that causes much harm to the community. The public interest is served by eliminating such conduct. Impaired driving is especially serious in the case of police officers who are sworn to uphold the law and whose duties may include upholding the very law that they have violated. As a result, police services are justified in disciplining officers who are convicted of criminal offenses such as this because the conviction may have a negative effect on the occupational requirements of the police service, the ability of the police officer to fulfil his or her duties and the reputation of the police service in general. The Commission accepts that alcohol-related driving offenses are serious and must be deterred. Nothing in this decision should be taken as minimizing the importance of such sanctions.
10The Hearing Officer’s decision is entitled to deference. The standard of review for factual findings is one of reasonableness while the standard in respect of the application of the law is one of correctness. See for example Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No.9
11As the Supreme Court of Canada stated in R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500:
Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Appellate courts serve an important function in reviewing and minimizing the disparity of sentences. However, a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.
12Similarly, as stated in Karklins v. Toronto (City) Police Service, 2010 ONSC 747 (Div.Ct) and repeated 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.
13This case proceeded by way of an ASF and uncontested documentary evidence. As a result, the Hearing Officer did not have the additional advantage of seeing witnesses testify and be cross-examined. Accordingly, there were no issues of credibility. Hence the deference one might accord to the findings of fact in a contested hearing with competing witnesses is not relevant to this proceeding. The Hearing Officer was required to accept all of the facts as given and was obliged to consider all relevant facts in reaching a conclusion. We are in as good a position to draw inferences from the facts as was the Hearing Officer. This will permit us to consider whether the Hearing Officer failed to consider a relevant factor, overemphasized appropriate factors or determined that the penalty is otherwise unfit. We are of the view that the Hearing Officer over emphasized the recent memoranda of the Commissioner calling for higher penalties in cases of impaired driving to the exclusion of fairly considering the mitigating factors contained in the record before her. In this case the Hearing Officer “cherry–picked” facts that supported an increased sentence without considering those that did not.
ISSUES
14The appellant raised the following grounds of appeal:
(a) The Hearing Officer erred by considering facts not in evidence;
(b) The Hearing Officer erred giving insufficient or no weight to mitigating factors;
(c) The Hearing Officer erred by artificially conflating aggravating factors that are merely common elements of this type of misconduct;
(d) The Hearing Officer erred by misdirecting herself, and/or erring in law, regarding the nature of prior cases that were based on joint submissions, and thereby improperly differentiating them; and,
(e) The Hearing Officer erred by failing to give sufficient notice that she intended to exceed the Prosecutor's penalty position.
Did the Hearing Officer err by considering facts not in evidence?
15In this case no oral evidence was called. The Hearing Officer had before her the ASF, two memoranda from two Commissioners of the OPP and relevant portions of the appellant’s human resources file. The appellant complained of two instances where the Hearing Officer relied on facts that were not in evidence. The first was that the Hearing Officer found that, from her years of experience, the appellant’s misconduct had infringed upon the OPP detachment’s service ability. She found this to be an aggravating factor. We find no fault with this finding of fact.
16The advantage of “expert” tribunals is that they can bring to bear a broad, detailed knowledge of the workings of a particular industry on the facts of a particular dispute. In this case, the appellant was on what was described as “modified duty” during the period leading up to the hearing and would continue for a time after her guilty plea. The Hearing Officer understood that this involved altering her assignments because she was unable to fulfill all the duties of a police officer while her license was suspended.
17In the detachment in the small community of Red Lake, this would have impacted the ability to utilize her services to the fullest and would have imposed extra duties on other officers in order to accommodate her situation. The Hearing Officer’s inference in this regard, based on her years of experience with the operations of the OPP, was reasonable. Similarly, the fact that the appellant has a criminal record for impaired driving may have an impact on her credibility and hence on her ability to function as a police officer. The negative impact on both her and the detachment’s ability to function could be viewed as an aggravating factor.
18However, without explicit evidence as to the magnitude of the impact, if any, that her conduct had on the detachment or her viability as an officer, it was not reasonable for the Hearing Officer to have concluded that this operational issue was “an extremely aggravating” factor. This is an instance of overemphasizing an appropriate factor. While we disagree with the overly negative characterization of this factor, standing alone it would not have justified interference in the penalty. However, when combined with other similarly unjustified negative characterizations of the appellant or her conduct, we have concluded that the Hearing Officer overemphasized the Commissioner’s wishes to the exclusion of a fair consideration of the actual case before her.
19The Hearing Officer stated that the appellant operated her motor vehicle on the evening in question in “defiance” of two memoranda from Commissioners of the OPP speaking to the need to end impaired driving by police officers. The two memoranda were circulated in 2009 and 2013 and emphasized that impaired driving by members of the OPP would not be tolerated. Increased penalties would be sought up to and including dismissal. The appellant would have received these memoranda in the usual course of her employment. Counsel for the appellant objected to the characterization of the incidents as being in defiance of the memoranda.
20Certainly, the appellant’s conduct was in violation of the criminal law and inconsistent with these policy memoranda. There was nothing, however, before the Hearing Officer to suggest that she was intentionally flouting either the law or the policy. Indeed, in accordance with the ASF which bound the Hearing Officer, it must be accepted as a fact that “she believed she was okay to drive” while at the gathering, but admitted that she was not when stopped by the RIDE program. However, the negative characterization of her mental state at the time of the events as defiant was a conclusion unsupported by the facts. As a result, a finding that she was defying the policy is unreasonable. This was significant because the Hearing Officer used her “defiance” as an aggravating factor in increasing the penalty.
21Interestingly, on page 27 of her decision, the Hearing Officer stated that she was “acutely aware that for the past 20 years, the OPP has communicated to its membership the need to be part of the solution, not the problem in regard to drinking and driving; those who fall outside this expectation will face stringent sanctions”. Elsewhere she indicated that there were at least five memoranda issued since 1996 to the same effect as the most recent memoranda. Accordingly, essentially all members of the OPP would have been reminded of the Commissioners’ policy statements from time to time over the years. In this regard the appellant would have been in no different position than almost any other member of the OPP.
22Nevertheless the Hearing Officer emphasized the existence of the two memoranda as an aggravating factor calling for a penalty higher than those imposed in other cases cited to her even though those other officers could also have received up to five policy memoranda on this topic. This is another instance of overemphasizing a relevant factor to increase the aggravated nature of the conduct and justify bringing it into a higher range of penalty.
Did the Hearing Officer give insufficient or no weight to mitigating factors?
23The Hearing Officer found as an aggravating factor that the appellant was defiant in ignoring the two policy memoranda and driving when she clearly knew she was not entitled to do so. She based this on two passages from the ASF. The first was her statement at the roadside when she stated “do not do this to me… I know my body-I am not going to pass”. However, the ASF includes the fact that before leaving the gathering, she declined an offer of a ride as “she believed she was okay to drive”. Similarly at the site of the RIDE program, the ASF indicates that the officers “did not detect or note any indicia of impairment at this time”. Further, on arrival at the detachment the officer who interacted with her noted “only a slight odour of alcohol coming from her breath and no other indicia of impairment”. The Hearing officer was not entitled to ignore these agreed facts in reaching her conclusion.
24The second fact used by the Hearing Officer to support the finding that the appellant was impaired was an observation made at the police station where the breath technician indicated that he observed a strong odour of alcohol, watery/bloodshot eyes and a flushed face. However, immediately following that passage in the ASF was the statement that the technician noted that “her speech was good, her appearance orderly and balance was ‘sure’. The breath technician concluded that the effect of alcohol on the appellant’s ability to drive was ‘slight’.
25As noted, the Hearing Officer was bound by the ASF and any inferences drawn had to be based on all of the facts set out in the ASF. It was not open to her to ignore these factors and rely only on the factors that supported the penalty she considered to be appropriate.
26As noted in the ASF the breathalyzer samples registered relatively low values when compared to the level of intoxication cited in other cases referred to by the Hearing Officer. The low values and the other facts noted above undercut any finding of a mental state that involved an intentional flouting of the law. While any person who drives “over 80” may be a danger to the safety of the public, the Hearing Officer ignored those portions of the ASF that supported a finding that, while “over 80”, the appellant displayed no significant signs of impairment and the effect of alcohol on her ability to drive was “slight”. While these factors do not amount to an excuse, the surrounding circumstances are always relevant to determine where in the range of appropriate penalties the conduct of the appellant lies.
27The Hearing Officer referred to the fact that the appellant entered guilty pleas to both the criminal offense and to the professional misconduct charge and found them to be mitigating factors. At the same time, she seems to have given them almost no weight in coming to her conclusion, given that the penalty imposed was as long as the longest in any authority referred to her and longer than that the disposition proposed by the prosecuting officer.
28The Hearing Officer relied on the employment history of the appellant finding it to be an aggravating factor. This record includes a number of commendations for exemplary police performance including one from the Commissioner himself in relation to diffusing a situation described by her counsel as a pending riot. On the weekend of May 9, 2014, she became intoxicated on the Friday evening and had an encounter with an individual that led to an informal discipline. On the Saturday evening she was apprehended and charged with the matter that brought her before the disciplinary hearing. After this weekend there were a few instances where her supervisor noted irregularities. However, when her supervisor was changed November 2014, her performance reports improved dramatically and in 2015 she received another commendation. Toward the end of 2015 she was transferred to the Frontenac Detachment in Kingston, Ontario where her performance has been exemplary.
29Other than the matter before the Hearing Officer, there appear to be no matters on her record giving rise to discipline. While there was a period of difficulty for several months, that difficulty appears to have been resolved by a change in supervision. Aside from this period, the appellant appears to have been an exceptional police officer. In finding that her work record was an aggravating circumstance, the Hearing Officer overemphasized the events of the short period of time in an eight year career and minimized or ignored very positive aspects found in her work record. As this was the appellant’s first and only formal disciplinary action bracketed by years of exemplary conduct, a finding that the work record was an aggravating factor was unreasonable.
30At the end of the original hearing, the Hearing Officer spoke with the appellant who advised that she had taken steps toward rehabilitation. She had been assessed and found not to be an alcoholic and therefore not a higher risk to reoffend. She also advised the Hearing Officer of a program she had enrolled in to ensure that the risk of reoffending was minimized. The program is only available to those with the lowest risk to reoffend. While the Hearing Officer mentioned prospects of rehabilitation, she referred only to the recognition of the seriousness of the misconduct as evidenced by the guilty pleas. These other important mitigating factors were not referred to in her reasons.
Did the Hearing Officer err by artificially conflating aggravating factors that are merely common elements of this type of misconduct?
31The circumstances giving rise to the disciplinary matter before the Hearing Officer are relevant to the consideration of an appropriate penalty. Some facts may be factors in relation to several heads of consideration. They may, for example, go to specific deterrence, general deterrence and rehabilitation or other mitigation. That a fact may bear on several issues does not necessarily imply that the Hearing Officer conflated the aggravating or mitigating facts by referring to them in several portions of the reasons. Without clear evidence, we would not give effect to this argument.
Did the Hearing Officer err by misdirecting herself, and/or erring in law, regarding the nature of prior cases that were based on joint submissions, and thereby improperly differentiating them?
32While all relevant decisions ought to be considered on arriving at an appropriate penalty, decisions that are accompanied by full and detailed analysis of the facts and the relation of the facts to the issues are most helpful to an adjudicator. While some penalty decisions based on joint submissions may include this sort of analysis, others may be relatively brief and contain just enough evidence to satisfy the Hearing Officer that the proposed sentence falls within the generally accepted range for misconduct such as this. For example, the proceedings in the Ontario Court of Justice on the guilty plea of the appellant found in Exhibit 5 contained just enough information to support a conviction for “over 80” but included none of the factual details set out in the ASFs on the disciplinary hearing. The transcript of the proceedings was six pages long and the reasons of the judge were less than 30 lines long. The Hearing Officer was correct, in our view, in recognizing that the precedential value of other decisions where there were joint submissions is sometimes limited by a less than full record. The persuasive weight to be given to any sentencing decision will depend on the record and analysis contained within the judgment. We disagree with her comment that a joint submission on penalty should be viewed as a mitigating factor.
33There are many reasons that the parties might choose to arrive at a joint submission rather than contest all issues. Nevertheless, the Hearing Officer did state that she did not consider the fact there was not a joint submission in this case as an aggravating factor. In our opinion, whether there was a joint submission on penalty, this fact is neither an aggravating nor a mitigating factor to be considered in determining a fit penalty for a particular case.
Did the Hearing Officer erred by failing to give sufficient notice that she intended to exceed the Prosecutor's penalty position?
34As noted above, the record tendered in the case of a joint submission may well provide sufficient material to illustrate that a proposed disposition falls within the acceptable range of dispositions but may not develop the full flavour of all the factors and circumstances surrounding the events giving rise to the hearing. In such cases, where the trier of fact proposes to deviate from the joint submission, the parties should be given an opportunity to further augment the record in order to establish that the joint proposal was fit.
35That is not the case where there is no agreement as to sentence. Both parties are entitled to adduce such evidence at the hearing as they see fit in order to support their submissions as to disposition. The fact that the Hearing Officer chose to deviate from submissions of both sides in such a case without seeking further submissions is not a reviewable error. This principle has been recognized by the Supreme Court of Canada in Moreau-Berube v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249. Nothing in the record suggests that the appellant was in any way prejudiced or would have conducted her case otherwise had the prosecuting officer taken a position on sentencing seeking a demotion of 21 months rather than 18 months. We would not give effect to this argument.
36We have found that the Hearing Officer erred in not considering relevant mitigating factors, and overemphasizing aggravating factors. The result was a penalty that was not reasonable or was unfit in all the circumstances. Counsel for the appellant argued that we should consider dispositions for similar conduct imposed in tribunals involving other police services. Many of the decisions made in respect of police officers employed by municipal police services involve penalties that were notably lower than those imposed in OPP cases.
37We agree with the submission of counsel for the OPP that as each police service is different, facing different realities and issues, their policies and approaches to discipline may be different. Each police service is entitled to set its own standards of conduct provided they are not in conflict with the Code of Conduct enacted under the ACT. The fact that members of the OPP may face a higher penalty than members of other police services does not mean that the OPP’s penalties are too high or that those of the other services are too low. They are simply different based on the needs and realities of each police service. Accordingly, we have focused on other decisions involving discipline of OPP members in determining an appropriate penalty in this case. The Hearing Officer did so as well. However, she focused her attention on the two cases that had the longest penalties from amongst the cases referred to. She found that these cases where similar to the appellant’s in relation to aggravating and mitigating factors, we disagree.
38The authorities cited by the parties, disclose a number of factors to be considered in reaching an appropriate disposition in cases of impaired driving:
The level of the Breathalyzer reading,
The level of impairment,
The manner of driving -- erratic, high speed etc.,
Whether there were passengers put at risk,
Whether an accident occurred and if so its severity,
Whether the officer or others were injured
Whether the officer attempted to evade or avoid apprehension
The officer’s conduct when apprehended
The officer’s work record
Whether the officer had a record of discipline for similar offences,
This list is not exhaustive of factors that may be considered.
39The two cases relied on by the Hearing Officer were Howard and Ontario Provincial Police, OPPHD, June 30, 2015 and McGregor and Ontario Provincial Police, OPPHD, July 21, 2015. The penalties imposed in these two cases were demotions for a period of 20 and 21 months. Both involved more senior officers with “neutral” employment records. However both cases involved motor vehicle accidents. In one case there was a child in a motor vehicle. In both cases there were verbal or physical altercations following the motor vehicle accident. In both cases breathalyzer readings where high and witnesses observed the police officers to be slurring their speech and stumbling or staggering. As can be seen from the ASF, nothing in this case is so similar as to permit an adjudicator to draw the conclusion that the appropriate range of penalty is similar to that imposed in these cases.
40We find that the appellant’s case is situated much more in line with decisions in Minhas Ontario Provincial Police, OPPHD, April 11, 2011; Rai and Ontario Provincial Police, February 21, 2012; Bressette and Ontario Provincial Police, OCPC #14-07, June 3, 2014 and Pritchard and Ontario Provincial Police, November 5, 2013. While none of these cases is precisely identical to the appellant’s, we find that these cases are more in line with the conduct of the appellant than are the Howard and McGregor cases relied upon by the Hearing Officer. The range of penalties established by these authorities for cases with few if any aggravating factors is a demotion for a period of up to 18 months. In this case, the breathalyzer reading was low but clearly “over 80”; there were some modest signs of impairment; there was nothing in the manner of her driving that drew the attention of the police; there were no passengers and no accident; the officer conceded her guilt at the scene; this was her first formal disciplinary action; and she was found by the court to be a low risk to reoffend. In our view, considering these authorities, her conduct and the surrounding circumstances, the penalty should fall toward the middle of that range.
41In our view the appropriate penalty for the appellant is one of a demotion for a period of 12 months to Second Class Constable. This penalty is significant and balances the seriousness of the misconduct with the mitigating factors not considered at the original hearing. At the conclusion of that period she is to be reinstated to First Class Constable.
ORDER
42For the reasons set out above, we vary the Hearing Officer's decision on penalty to a demotion to the rank of Second Class Constable for a period of 12 months after which she is to be reinstated to the rank of First Class Constable.
DATED at Toronto, this 20th day of December, 2017.
John Kromkamp
D. Stephen Jovanovic
Karen Restoule