PC Leon Sowa v. Durham Regional Police Service, 2017 CanLII 17178

DATE: 31 March 2017

FILE: OCPC 16-ADJ-006

CASE NAME: SOWA AND DURHAM REGIONAL POLICE SERVICE

IN THE MATTER OF AN APPEAL UNDER SECTION 87(1) OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS

BETWEEN:

PC LEON SOWA

APPELLANT

-and-

DURHAM REGIONAL POLICE SERVICE

RESPONDENT

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Roy B. Conacher, Q.C., Vice-Chair

Jacqueline Castel, Member

Hearing Date:

January 17, 2017

Hearing Location:

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Appearances:

Toronto, ON M7A 2T3

William R. MacKenzie,

Counsel for the appellant

Ian Johnstone and

Alexander J. Sinclair,

Counsel for the respondent

I. Introduction

Constable Leon Sowa (the appellant) is appealing the December 8, 2016 decision of Inspector Todd Rollauer (the “Hearing Officer”), which found him guilty of insubordination, discreditable conduct (2 counts) and deceit, contrary to the Code of Conduct, Ontario Regulation 168/10 (the Code), under the Police Services Act, R.S.O. 1990, c.P.15 (the PSA).
In the alternative, should the Commission uphold some or all of the findings of guilt, the appellant is appealing the Hearing Officer’s June 17, 2016 decision on penalty, demoting him to second class constable for 18 months. He is seeking a penalty of forfeiture in the range of 24 to 40 hours.

The respondent, Durham Regional Police Service, opposes the appeal on the findings of misconduct and the penalty imposed.

II. Background

The appellant has been a member of the respondent since 1995 and has no prior formal disciplinary history.
On January 21, 2014, at a meeting with Staff Sergeant Bob Elliot (“S/Sgt. Elliot”), the appellant was ordered to perform duties at the front desk, including assisting members of the public with Criminal Information Record (“CIR”) applications outside regular business hours.
On January 29, 2014, Constable Kathleen Burke (“Const. Burke”) trained the appellant on assisting the public with CIR requests outside regular working hours. Const. Burke testified that when members of the public attend outside regular working hours, they should not be turned away. They are to be given the appropriate forms and permitted to leave them with the officer on duty at the desk. Civilian staff will complete the CIR during office hours and an applicant may pick it up on a later date. However, if a member of the public requires the CIR on the same day, he or she should be directed to return during office hours.
There was conflicting evidence from the appellant and two members of the public as to the incidents giving rise to the charges. M.R. interacted with the appellant on January 30, 2014, and S.B. dealt with him on February 22, 2014. In both cases, the interactions were brief.

M.R. testified that she went to the police station with her sister and boyfriend at approximately 5 p.m. on January 30, 2014 and asked the officer behind the desk (the appellant) if she could have a vulnerable sector police check completed. According to her testimony, the appellant told her that the office was closed and she would need to come back during office hours. She testified that she asked if she could fill out the form and leave it with him, but he told her that this would not be possible and she would need to come back during office hours.
M.R. denied telling the appellant that she needed the form urgently or on a specific date. She acknowledged on cross-examination that she did, in fact, need the form urgently given that she returned during office hours the following day, even though she had a class assignment, to obtain the CIR.
The appellant testified that he presented M.R. with two options. One option was to come back the next day during office hours so that the CIR could be completed on the spot. The other option was to fill out the form and leave it with him. If she selected the latter option, he testified to telling her that there would be a two week waiting period for the results. According to the appellant, M.R. told him she needed the results of the CIR for the next day. Accordingly, he wrote down the business hours of the office on a post-it note for her.
S.B. attended the vestibule area of 18 Division on February 22, 2014 outside regular office hours. S/Sgt. Elliott instructed the appellant to assist him with his request.

S.B.’s conversation with the Communications Department, when he first arrived at 18 Division, was captured on a video recording as follows:

Female Speaker: Communications.

Male Speaker: Can I have the front door here –

is there anybody inside to speak

to?

Female Speaker: What’s it regarding, sir?

Male Speaker: It’s just. I needed one of those

criminal background checks. I

was told it was in this area here

where the Whitby station is.

According to the appellant’s evidence, he went to the vestibule to let S.B. in, as the exterior doors were locked, and asked S.B. how he could assist him. The appellant testified that S.B. told him he wanted to pick up his completed CIR. Accordingly, he told S.B. that he would need to return during regular business hours as the office was closed.
After S.B. left, S/Sgt. Elliot expressed surprise to the appellant that he was able to assist S.B. so quickly with a CIR request. The appellant told S/Sgt. Elliot that S.B. wanted to pick up a completed CIR, which he had applied for earlier, rather than fill out and have a new CIR application processed. The appellant also told S/Sgt Elliott that he informed S.B. that the CIR office was locked and he would have to return during regular business hours.

S.B. denied telling the appellant that he was there to pick up a criminal background check. According to S.B.’s evidence, he told the appellant that he needed to have a police check completed for a new job he was starting.
After S/Sgt. Elliott’s conversation with the appellant

concerning the interaction with S.B., the respondent began an investigation into the appellant’s conduct which led to the appellant being charged with insubordination, deceit and two counts of discreditable conduct under the Code. The precise charges are set out in Schedule A attached to this decision.

The Hearing Officer found the appellant guilty of each of the offences he was charged with, determining that:

a. the conviction for insubordination related to the appellant’s failure to assist two members of the public with CIR requests after being ordered to do so by S/Sgt. Elliott;

b. the two convictions for discreditable conduct related to the appellant’s failure to provide service to two members of the public at the CIR office, in accordance with an order and his training, thereby bringing the reputation of the Service into disrepute; and

c. the conviction for deceit related to the appellant’s deliberate attempt to deceive S/Sgt. Elliot about the reason for S.B.’s attendance at 18 Division.

III. Decision

Pursuant to s. 87(8)(a) of the PSA, the findings of misconduct are confirmed. The penalty is varied from a demotion for 18 months to the forfeiture of 40 hours.

IV. The Issues

The issues before us are:

A) Was the Hearing Officer’s assessment of the credibility of witnesses reasonable?

B) Did the Hearing Officer err in law by concluding the evidence met the threshold of “clear and convincing” when the evidence relied upon was not “weighty, cogent and reliable”?

C) Did the Hearing Officer punish the appellant twice for the same actions and, if so, did he err in failing to apply the Kienapple principle? Did the Hearing Officer err in law by failing to apply the associated sentencing principles of progressive discipline and consistency of penalty resulting in a penalty that was harsh and excessive in the circumstances?

V. Reasons and Analysis

The 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 (Ottawa Police Services v. Diafwila, 2016 ONCA 627).

The standard of review for a Hearing Officer’s penalty disposition is that of reasonableness (Ontario Provincial

Police v. Purbrick, 2013 ONSC 2276).

A) Was the Hearing Officer’s assessment of the credibility of witnesses reasonable?

B) Did the Hearing Officer err in law by concluding that the evidence met the threshold of “clear and convincing” when the evidence relied upon was not “weighty, cogent and reliable”?

Mr. MacKenzie, counsel for the appellant, submitted that the Hearing Officer failed to assess the credibility of witnesses consistently and fairly and that he found the evidence of M.R. and S.B to be more credible than the appellant’s testimony without substantive foundation. He further submitted that the Hearing Officer misunderstood and misapplied the test for credibility; that the evidence of M.R. and S.B. was uncorroborated while the appellant’s evidence was to some extent corroborated; that the evidence of M.R. was substantively similar to the appellant’s and; that the evidence of M.R. and S.B. was not weighty, cogent or reliable.
The findings of misconduct in this case turned on the Hearing Officer’s assessment of the credibility of the appellant and the two civilian witnesses. The Commission held in Carmichael and Ontario Provincial Police, OCP #98-07:

“In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight or value.”

As such, deference should be given to the Hearing Officer’s findings of credibility unless they cannot reasonably be supported by the evidence.

Based on our review of the transcripts and the decision, we find that the Hearing Officer understood the evidence of the witnesses and summarized it in a thorough and accurate manner. In drawing conclusions, he considered all of the relevant evidence and provided logical and clear reasons to support his findings of credibility.
The Hearing Officer found the appellant’s testimony to be contradictory and to frequently digress “into areas of abyss”, such as customer service at Canadian Tire, which had no relevance to the charges of misconduct. Contradictions or inconsistencies in the appellant’s evidence, which the Hearing Officer identified in his decision, included:

He told Sgt. Grant, who subsequently interviewed him, that he could not recall his conversations with M.R. and S.B. because he deals with so many customers on a given day. However, after reviewing the videos and hearing the testimony of M.R. and S.B., he testified, “These are very clear in my mind.”
The appellant testified, at one point, that members of the public are “inundated” with signage at the front doors of 18 Division, that they miss the information on the CIR office doors about the hours of operation, and that they ask the staff at the front desk about the operating hours. However, later in his testimony, he stated that “most people pay attention to the office hours and that we’re closed on weekends.”

The appellant testified to placing a note on the exterior door of the CIR office for customer service purposes as he felt customers were confused about the office hours. However, he could not explain why he would remove the note at the end of his shift (also captured on video) if the rationale was customer service. He admitted that he did not disclose to his superiors any concerns about members of the public being confused about office hours. Further, as noted above, he had also testified that “most people pay attention to the office hours”.

In addition, the Hearing Officer found that the appellant was relying on the testimony and statements provided to assist with his recollection of events and that he had very little independent recollection of the details and interactions with M.R. and S.B.
Conversely, the Hearing Officer found that M.R.’s interaction with the appellant must have resonated with her, as she demonstrated, what he termed to be, a “comprehensive” and “independent” recollection of what transpired. He also found that M.R.’s evidence was consistent with her statement and that she gave her testimony in a “direct” and “unfailing” manner.
The Hearing Officer explained why he was not prepared to infer that M.R. told the appellant she needed the CIR the next day or urgently from the fact that she returned the next day or acknowledged on cross-examination that she needed the CIR urgently. He wrote the following:

This is an acceptable response, given that M.R.’s jeopardy had changed and [she] likely believed there was now a sense of urgency to get the document completed as a result of being turned away the day before. I dismiss any notion that simply based on this one comment that an inference should be made that while speaking with Constable Sowa the day before there was equal necessity to have this document completed. (Decision on Findings, pp. 13-14)

The Hearing Officer also found S.B.’s testimony to be “honest, candid and credible”. He explained that it would be illogical to conclude that S.B. would say he attended to pick up something that he had not yet applied for. Moreover, the video recording of his conversation with the Communications Department corroborated his testimony that he was there to obtain a CIR application rather than pick up a completed one that he had purportedly applied for on a prior date. The Hearing Officer refused to accept that the term “obtain” rather than “apply” would be sufficient cause for the appellant to instruct him to return during the regular business hours of the CIR Unit.
The fact that neither M.R. nor S.B. had filed a complaint was an indication to the Hearing Officer that “they did not have an agenda” and provided him with additional comfort concerning the reliability of their evidence.
We find that the Hearing Officer’s analysis of the witnesses’ credibility was intelligible and transparent and can reasonably be supported by the evidence. We also find that he identified, understood and applied the correct

standard of proof. He specifically wrote that the standard of proof was one of “clear and convincing evidence” which evidence must be “weighty, cogent and reliable”. Accordingly in our view, his assessments of credibility satisfy the reasonableness standard.

C) Did the Hearing Officer punish Const. Sowa twice for the same actions and, in so doing, err in failing to apply the Kienapple principle? Did the Hearing Officer err in law by failing to apply the associated sentencing principles of progressive discipline and consistency of penalty resulting in a penalty that was harsh and excessive in the circumstances?

The appellant argued that by punishing Const. Sowa twice for the same set of facts (the charges for insubordination and discreditable conduct) and by not applying the sentencing principles in Kienapple, the penalty imposed was harsh and excessive in the circumstances.
The Hearing Officer determined that the counts of insubordination and discreditable conduct have different essential elements and refer to different actions:

“The counts of Insubordination and Discreditable Conduct refer to different actions by Constable Sowa. It is my view that Insubordination and Discreditable Conduct are two different matters totally separate from one another and not alternative one to the other.” (Decision on Penalty, page 4)

We disagree. The Hearing Officer found the appellant guilty of discreditable conduct and insubordination on the exact same set of facts or actions: the failure to assist the same two individuals with their CIR applications, outside regular office hours, contrary to what he had been ordered and trained to do.
Discreditable conduct does not always involve failure to comply with a lawful order (with no lawful excuse), requirements for the offense of insubordination. However, in the circumstances of this case, the appellant’s failure to assist the two members of the public outside regular business hours (i.e., when the CIR office was closed) would not have been discreditable had he not been ordered to do so or in the absence of a policy or directive mandating that applications be accepted when the CIR office is closed.
Mr. MacKenzie submitted that the principle in the criminal case of R v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729

(“Kienapple”) applies to sanctions under the PSA and that the Hearing Officer erred in failing to apply it. The principle is that an accused cannot be punished for more than one offence arising out of the same set of facts. The Supreme Court of Canada subsequently clarified in R v. Prince 2986 CanLII 40, 1986 CanLII 40 (SCC), [1986] 2 SCR 480 at 34, that in addition to a factual connection between the offences, there must also be a legal nexus and the offence elements must be substantially the same.

Mr. Johnstone, counsel for the respondent, submitted that the Kienapple decision, a criminal law case, does not apply to disciplinary proceedings under the Act. He emphasized in his oral submissions that unlike criminal law cases, the

penalties under the Act do not include penal consequences or a loss of liberty. Therefore, he submitted that the Hearing Officer was correct in determining that Kienapple has no application.

The principle in Kienapple has been previously considered by the Commission. In the case of Constable Richard Mowers and the Hamilton Regional Police Service, OCCPS, (March 18, 1999) the Commission noted that Hearing Officers should be cautious in applying Kienapple on the basis that:

Disciplinary proceedings involving police officers are labour relations matters. They are not criminal trials. Consequently, caution should be exercised in applying criminal law concepts (autrefois convict and autrefois acquit) or rulings laid out in what are essentially criminal cases such as Kienapple v. The Queen to discipline hearings.

However, the Commission in the same decision also wrote:

Certain common principles may arise. For example, at page 912 of Dempsey and

Waterloo Regional Police Service, (1991) 2O.P.R. 909 (O.C.C.P.S.) the Commission has previously stated that “in our view the rules of natural justice demand that one not be convicted of two offences based upon the same delict.

The Kienapple principle was applied to an administrative

and disciplinary proceeding in Carruthers v. College of Nurses of Ontario, 1996 CanLII 11803 (ON CTGD), [1996], O.J. No. 4275. The court stated in that case:

There can be no quarrel with the proposition that a registrant/member ought to be held liable for each breach of the governing rules of the profession. No one, however, should be twice punished for the same delict or matter. It is as much the case for professional discipline as it is for a regulatory offence.

Kienapple has also been applied to administrative and disciplinary proceeding by the Alberta Court of Appeal in

K.C. v. College of Physical Therapists of Alberta, 1999 ABCA 253; by the Saskatchewan Court of Appeal in Merchant v. Law Society of Saskatchewan, 2014 SKCA 56 and; again by the Alberta Court of Appeal in Danyluik v. Institute of

Chartered Accountants of Alberta (Complaints Inquiry Committee), 2014 ABCA 78.

Although the penalties under the PSA do not involve a loss of liberty, they are nonetheless serious and may include the termination of employment or a demotion with concomitant implications for the officer’s pension. It is our position that the same principles of fairness, which preclude someone from being punished twice for the same actions in the criminal law context, should apply to cases under the PSA.
Accordingly, we find that the Hearing Officer erred in punishing the appellant twice for the same actions, in the circumstances of this case.
The Hearing Officer acknowledged that most of the cases submitted by the prosecution were over 20 years old yet

stated that he was unwilling to dismiss these cases for that reason.

On the other hand, the Hearing Officer discounted the relevance of a very recent case, Ottawa Police Service v. Constable Kennedy, Ottawa Police Service Discipline Hearing, February 8, 2016, stating: “I find very little similarities with the matter before me” and “I struggle to find the nexus between this and the matter before me.”
We find that there were in fact significant similarities in the matters involving Const. Kennedy and the appellant. Const. Kennedy had been a police officer for 21 years, approximately the same length of time as the appellant. Neither officer had a formal disciplinary history. Const. Kennedy was found guilty of insubordination as was the appellant. Const. Kennedy was found guilty of discreditable conduct for lying under oath in a criminal court. The appellant was found guilty of deceit for lying to S/Sgt. Elliott. Lying under oath, which is tantamount to perjury, is a more serious offence than lying to a supervisor. However, Const. Kennedy received a penalty of 48 hours forfeiture whereas the appellant was demoted for 18 months.
The penalty imposed on the appellant was considerably harsher than the penalty imposed on Const. Kennedy, whose circumstances were similar except that one of his convictions (lying under oath) was more serious than the appellant’s conviction for deceit. We do note that the penalty imposed on Const. Kennedy was based on a joint submission.

Even though the Hearing Officer found the appellant guilty of discreditable conduct and insubordination, a finding which we have confirmed, on the exact same set of facts and actions it would be unfair, in our view, to in effect punish him twice for these same actions: see Carruthers above.
For the foregoing reasons we conclude that the Hearing Officer did commit an error in principle in the penalty imposed on the appellant. In our view, under all of the circumstances, the appropriate penalty would be the forfeiture of 40 hours.

VI. Disposition

The findings of misconduct are confirmed.
The penalty is varied from demotion for 18 months to 2nd Class Constable to forfeiture of 40 hours.

DATED AT TORONTO THIS 31st DAY OF MARCH, 2017

D. Stephen Jovanovic

Roy B. Conacher, Q.C., Vice Chair

Jacqueline Castel, Member

SCHEDULE A

ORDER TO CONDUCT A HEARING

CHIEF'S COMPLAINT

Pursuant to Part V of the Police Services Act,

R.S.O. 1990, Chapter P.15, as amended.

WHEREAS subsection 76(9) of the Police Services Act (the “Act”) provides the Chief of Police may hold a hearing to determine whether a police officer is guilty of misconduct;

TO: INSPECTOR TODD ROLLAUER

(1) It is alleged Police Constable Leon Sowa #927 on or between the 30th day of January 2014 and the 22nd day of February 2014 did, without lawful excuse, disobey, omit or neglect to carry out any lawful order, thereby committing the offence of Insubordination, contrary to Part V, clause 80 of the Act as amended, and clause 2(1)(b)(ii) of the Schedule "Code of Conduct", O.Reg. 268/10, as amended under the Act.

AND FURTHER THAT

(2) It is alleged Police Constable Leon Sowa #927 on or about the 30th day of January 2014, acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit up the reputation of the police force, thereby committing the offence of Discreditable Conduct, contrary to Part V, clause 80(1)(a) of the Act as amended, and clause 2(1)(a)(xi) of the Schedule "Code of Conduct", 0.Reg. 268/10, as amended under the Act.

AND FURTHER THAT

(3) It is alleged Police Constable Leon Sowa #927 on or about the 22nd day of February 2014, acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force, thereby committing the offence of Discreditable Conduct, contrary to Part V, clause 80(1)(a) of the Act as amended, and clause 2(1)(a)(xi) of the Schedule "Code of Conduct", O.Reg. 268/10, as amended under the Act.

AND FURTHER THAT

(4) It is alleged Police Constable Leon Sowa #927 on or about the 22nd day of February 2014 willfully or negligently made a false, misleading or inaccurate statement pertaining to his official duties, thereby committing the offence of Deceit, contrary to Part V, clause 80(1) (a) of the Act as amended, and clause 2(1)(d)(ii) of the Schedule "Code of Conduct", O.Reg. 268/10, as amended under the Act.