Husseini v. York Regional Police Service, 2017 CanLII 4791

ONTARIO CIVILIAN POLICE COMMISSION

DATE: 6 February 2017

FILE: OCPC 15-ADJ-017

CASE NAME: HUSSEINI AND YORK 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 amended

BETWEEN:

PC SALWA HUSSEINI #2122 APPELLANT

-and-

YORK REGIONAL POLICE SERVICE RESPONDENT

DECISION

Panel: D. Stephen Jovanovic, Associate Chair Roy B. Conacher, Q.C., Vice-Chair Ted Crljenica, Vice-Chair

Hearing Date: June 21, 2016

Hearing Location: Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3

Appearances: William R. MacKenzie, Counsel for the Appellant Jason D. Fraser, Counsel for the Respondent

I. Introduction

1. This Appeal arises from the decision of Superintendent Graeme Turl (“the Hearing Officer”) dated December 10, 2015, wherein he imposed a penalty requiring the appellant to resign from the respondent police service within seven days or face termination from employment.

2. The appellant had pleaded guilty to the following three charges under Regulation 268/10 (the Code of Conduct), made pursuant to the Police Services Act (“the PSA”):

i. Discreditable conduct in that she acted 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, contrary to section 2(1)(a)(xi) of the Code of Conduct by falsely submitting health benefit claims to Sun Life Assurance Company (“Sun Life”).

ii. Deceit in that she knowingly made a false statement in a record contrary to section 2(1)(d)(i) of the Code of Conduct in that she falsely submitted health benefits claims to Sun Life, by certifying information [therein] to be true and complete.

iii. Deceit in that she knowingly made a false statement in a record, contrary to section 2(1)(d)(i) of the Code of Conduct in that she purposely submitted an altered receipt to Sun Life to corroborate a pending claim for massage therapy.

II. Decision

3. Pursuant to section 87(8)(a) of the PSA, the Commission confirms the decision of the Hearing Officer to allow the appellant seven days from the date of this decision to resign or face termination of employment from the respondent.

III. Background

4. The parties presented an Agreed Statement of Facts (“ASF”) to the Hearing Officer. A summary of the relevant facts follows.

5. The appellant was an officer with the respondent since June 2011, having previously been an officer with another service since November 2008.

6. Over an eleven month period, from March 2013 to January 2014, the appellant submitted 15 claims for massage therapy benefits to Sun Life, the administrator of the respondent’s extended health and benefit plan. All benefits are fully funded by The Regional Municipality of York. The last such claim, submitted online on January 17, 2014, in the amount of $95.00 was randomly selected by Sun Life as part of a routine audit.

7. Before submitting an online claim to Sun Life, officers must complete a number of procedural steps including the positive acknowledgement of various terms and conditions including:

i) Certifying that all goods and services being claimed were received.

ii) That the information provided is true and complete.

8. The Appellant was asked by Sun Life to submit a copy of the receipt for that claim. Sun Life examined the receipt she submitted, determined that the amount on the receipt had been altered and referred the matter to its Investigative Service Unit. The service provider named on the claim submitted by the appellant was contacted during the ensuing investigation and it was determined that the service claimed had not in fact been rendered.

9. The appellant contacted Sun Life on February 27, 2014, questioning why her January claim had not been paid. When the appellant was asked to confirm the service provider, she indicated “Fame International” while the receipt she had previously submitted was from Argus Beauty Supply.

10. Sun Life wrote to the appellant on April 25, 2014 asking if she wished to provide additional information including copies of receipts for all the claims she had submitted. In response, the appellant advised Sun Life that all of the claims, except possibly one or two, were false, and she asked if she could repay the amounts falsely claimed.

11. Sun Life referred the matter to the respondent. An investigation by the respondent’s Professional Standards Bureau determined that the 15 claims submitted by the Respondent were “fraudulent”, resulting in the appellant receiving $1,224.97 to which she was not entitled.

12. The appellant was arrested in October of 2014 and charged with two counts of fraud under $5,000.00 and two counts of uttering a forged document contrary to the Criminal Code. On February 19, 2015, the appellant pleaded guilty to one count of fraud, the remaining charges were withdrawn and, following a joint submission, she was placed on probation, granted a conditional discharge and ordered to make restitution, which she subsequently did do.

13. The appellant testified before the Hearing Officer and called three character witnesses, all officers with the respondent. The Hearing Officer decided that the appellant was no longer fit to remain an employee of the respondent, her usefulness as an officer was annulled and that her conduct and decision making revealed a fundamental character flaw that would be impossible to rehabilitate. He accordingly ordered that she resign from the respondent within 7 days or face termination.

14. Superintendent Rouse, the respondent’s officer in charge of Staff Services, gave evidence on behalf of the prosecution. He testified how the appellant’s type of misconduct not only erodes the public trust in police but the trust of management in the officer committing the misconduct. He did not believe that the appellant had any further useful role to fill for the respondent. Superintendent Rouse, however, acknowledged that the respondent continues to employ officers with criminal convictions for fraud (including benefits fraud), domestic violence and impaired driving offences.

IV. The Issues

15. The appellant framed the issues to be decided on this appeal as follows:

i. Did the Hearing Officer err in law by failing to properly apply the sentencing principles associated with the “usefulness test”, notably: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police force that would occur should the officer remain on the force?

ii. Did the Hearing Officer err in law by failing to properly apply the sentencing principles of progressive discipline and consistency of penalty to the facts of this case?

iii. Did the Hearing Officer err in law by imposing a penalty that was ‘harsh and excessive’ given the circumstances of this case?

16. The respondent submitted that the issue to be decided could be distilled further to the following:

i. Was the penalty of dismissal in seven days unless the appellant resigned reasonable?

V. Reasons and Analysis

17. In KARKLINS V. TORONTO (CITY) POLICE SERVICE, [2010], O.N.S.C. 747 (Div. Ct.), the Court wrote that, on the issue of penalty, the standard of review by the Commission of a Hearing Officer’s decision was reasonableness. The Court adopted the following statement from an earlier decision of a Commission:

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

18. Similarly, in KOBAYASHI et al and the WATERLOO REGIONAL POLICE SERVICE, [2015], O.N.C.P.C. 12, the Commission wrote the following:

… the Commission is not permitted to reweigh the disposition factors to come to a conclusion on penalty which it believes is more appropriate. Unless there has been an error in principle or relevant factors have been ignored, the Commission cannot interfere with a decision on penalty even if it might have come to a different conclusion if hearing the matter at first instance.

19. In reviewing the decision of a Hearing Officer, the Commission has adopted the following principle from The Supreme Court of Canada decision in NEWFOUNDLAND AND LABRADOR NURSE’S UNION V. NEWFOUNDLAND AND LABRADOR (TREASURY BOARD), [2011] 3 S.C.R.

When reviewing the decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties’ submissions and the process and reasons do not have to be perfect. They do not have to be comprehensive.

20. We now turn to the issues raised and the submissions made by the parties.

i. Did the Hearing Officer err in law by failing to properly apply the sentencing principles associated with the “usefulness test”, notably: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer and damage to the reputation of the police force that would occur should the officer remain on the force?

21. The appellant conceded that committing benefit fraud is serious misconduct that “may in certain circumstances” warrant dismissal. However, she contrasts the penalty of dismissal in her situation to the penalties imposed by hearing officers in four others cases involving benefit fraud by police officers: MacDonald and York Regional Police [2015]; Mennie and Halton Regional Police (2015), Fraser and St. Thomas Police Service (2015); and Coleman and The York Regional Police Service (2016).

22. We shall deal with these four decisions below, when considering the appellant’s submissions on consistency of penalties. The appellant’s substantive argument appears to be that, notwithstanding the seriousness of her misconduct, dismissal was not a reasonable penalty and was not consistent with the penalties imposed in similar cases.

23. The appellant next submits that the Hearing Officer failed to properly assess the second part of the “usefulness” test, i.e., the ability to reform or rehabilitate the officer. She cites the Commission’s decision in FAVRETTO V. ONTARIO PROVINCIAL POLICE, OCCPS (2002), where the Commission wrote the following:

The community has a significant investment in every police officer and before an officer is dismissed, every attempt should be made to consider whether or not rehabilitation is possible. This is of significant importance when the subject officer has had a clear record and good performance evaluations. Unless the offence is so egregious and unmitigated, the opportunity to reform should be a significant consideration.

24. The appellant submits that the Hearing Officer failed to “fully recognize and give adequate consideration“ to a number of factors, including:

• her cooperation with the investigation;

• the pleas of guilty to the criminal and PSA charges;

• her restitution of the amounts she received from Sun Life; and

• her attendance in an Employee Assistance Program and her apologies for her actions.

25. The appellant also submits that the Hearing Officer “failed to properly assess and give adequate weight to the evidence of three witnesses called on her behalf”. Constable Amy McLeod testified that the Appellant had her support and that of other officers she had worked with in the past. Detective Constable Julie Stynes believed that the appellant learned from this experience and was making herself a better person who would make a difference in the community. Staff Sgt. David Trach, while recognizing the seriousness of the misconduct, testified that he would“take Salwa back tomorrow as she is valuable to me and the organization”.

26. The Hearing Officer considered the rehabilitation of the appellant as one of the usual 13 factors to be weighed in delivering an appropriate penalty. These factors are as follows:

27. Public interest;

28. Seriousness of the misconduct;

29. Recognition of the seriousness of the misconduct;

30. Employment history;

31. Need for deterrence;

32. Ability to reform or rehabilitate the police officer;

33. Damage to the reputation of the police force;

34. Handicap and other relevant personal circumstance;

35. Effect on the police officer and police officer’s family;

36. Management approach to misconduct in question;

37. Consistency of disposition;

38. Financial loss resulting from unpaid interim administrative suspension; and

39. Effect of publicity.

40. We accept the statement in Favretto that the opportunity to reform should be a significant consideration. However, that does not mean that it is a paramount consideration as all of the above factors must be taken into account. These factors are to an extent intended to be flexible, contextual and may evolve over time.

41. The Hearing Officer considered the “ability to reform or rehabilitate”, first at pages 36-38 of his decision. He fairly reviewed the evidence presented on the appellant’s behalf and the financial stresses she faced as a result of a failed marriage and a second failed relationship. He expressed concern that her behaviour might be repeated and wrote the following:

In this realm, I have concerns that although Constable Husseini is a well-educated individual who chose a career in public service, when all this began to push on her, aside from doing as many paid duties as possible, her first alternative is to make fraudulent claims through her employer benefit program. Nothing was presented to me to identify that she did not attempt to seek out professional assistance or advice. In fact, she testified that she didn’t think she would be eligible to declare bankruptcy. This tells me that she did think about it but did not choose to investigate it further, instead choosing to commit criminal acts.

To Constable Husseini’s credit, she expressed remorse for her actions. Taking responsibility and showing remorse are indeed steps towards rehabilitation. I am neutral on whether this is an aggravating or mitigating factor as both sides of this hold some weight.

29. On Page 43 of his decision, he wrote:

There were character reference letters provided to the Hearing that were also used for her criminal trial and three of those officers appeared as character witnesses at the hearing. These witnesses believe that she can reform and continue to work in a position of trust as a police officer as she has learned from this and is moving forward. I too believe that she has learned from this and can move forward, but I am not convinced that she can regain the trust necessary to continue as a police officer.

30. The Hearing Officer wrote that the appellant’s conduct and decision-making leads to a “fundamental character flaw that I find difficult to rehabilitate”. While different adjudicators might have drawn different conclusions from the evidence, this finding was open to the Hearing Officer. He was best placed to consider the weight and import of the entirety of the record before him. He appeared to consider the appellant’s ability to reform or rehabilitate, and we are not prepared to reweigh the consideration he gave to this factor among all of the other factors he was required to review.

31. The final part of the usefulness test required the Hearing Officer to assess the damage to the respondent should the appellant remain as an officer. The appellant concedes that her actions have caused “some damage” to the respondent’s reputation but not irretrievable damage. She submits that the Hearing Officer erred by treating the damage to the reputation of the respondent as a “significant aggravating factor” without there being a substantive foundation for such a conclusion.

32. In Hassan and Peel Regional Police Service, OCCPS, #06-07, the Commission noted that hearing officers could place themselves in the position of a reasonable person in the community in order to assess the degree to which the conduct of the officer has brought harm to the reputation of a police force and the extent to which that harm would continue if the officer remained employed.

33. The Hearing Officer wrote the following:

The evidence presented by the prosecution of the media coverage affords compelling evidence of a negative impact on the reputation of YRP. The possibility of Constable Husseini being confronted with her record of deceit and fraud when giving evidence would likely also have an impact on the reputation of YRP. The community expects that its police officers, whom they instil trust and confidence in, to be above reproach and held to a higher standard. This type of misconduct, should it become well known, can tear down that confidence.

The simple fact that a sworn member of the YRP has been convicted criminally of fraud in relation to benefit claim, despite receiving a conditional discharge, is still damaging to all members and the organization as a whole.

In our view, this was a reasonable conclusion for the Hearing Officer to reach and we see no reason to disturb it.

34. The appellant submits that the Hearing Officer discounted the comments of Justice Minard when he sentenced her on the fraud charges. Justice Minard wrote: “I hope you can put this behind you and go on to serve the community in your role as a police officer.” The Hearing Officer was entitled to consider the potential damage to the respondent’s reputation based on the evidence and argument before him. The fact that Justice Minard “hoped” the appellant could return as a police officer does not, in our view, dictate that the Hearing Officer reach the same conclusion.

35. The appellant questions why the officers in the MacDonald, Mennie and Fraser cases were allowed to continue their employment while she was not. We shall deal with this submission later in the reasons when considering the consistency of penalties imposed for similar misconduct.

ii. Did the hearing Officer err in law by failing to properly apply the sentencing principles of progressive discipline and consistency of penalty to the facts of this case?

36. In White and Reid v. Windsor Police Service, OCCPS, November 10, 2000, the Commission wrote:

The penalty also must be consistent with similar cases in order 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.

The respondent acknowledged the principle of consistency of disposition but submits that dismissal is within the appropriate range of penalty for benefit fraud.

37. The Hearing Officer reviewed a number of decisions presented by the parties dealing with theft or other fraudulent conduct by police officers. Three of these cases (MacDonald, Mennie and Fraser) dealt with benefits fraud. A fourth decision relied upon before us by the appellant, Constable Stuart Coleman and The York Regional Police Service (2016), was delivered after the decision in the appellant’s case. In all of these cases, the officers were demoted rather than dismissed.

38. The appellant concedes that benefits fraud may warrant dismissal in certain cases but that the above decisions establish, in effect, the standard for consistency of penalties.

39. In MacDonald, the officer submitted sixty-five deliberately fraudulent claims for services that were not rendered and improperly received $6,373.00. MacDonald pleaded guilty to four PSA charges and was convicted of fraud. The Hearing Officer in that case wrote:

A record for deceit in particular is very serious and difficult to get past. Dismissal is normally available and within range for these serious types of misconduct, based on an officer’s usefulness being exhausted or irreparable damage should be remain

But the cases also recognize that when the misconduct is out of character and there are significant mitigating factors on the face of the record, these can support an exception and may mitigate instead towards demotion as a fit disposition.

MacDonald was demoted to a Third Class constable. The Hearing Officer noted that dismissal is normally available for that type of misconduct but took into account the officer’s fifteen years of service, his work history and awards he had received.

40. Coleman dealt with an officer who was found guilty of one count of discreditable conduct for forging a prescription and submitting numerous false claims for physiotherapy that benefited not him but his wife. The Hearing Officer wrote:

Dismissal in my mind is the most prudent disposition that ought to be rendered in these cases.

41. Nevertheless, the Hearing Officer demoted Coleman from a First Class constable to a fourth class constable, allowing him to again progress through the ranks to a First Class constable. In Mennie and Fraser, the demotions were based on joint submissions.

42. In Walker and Peel Regional Police Service, OCCPS, No. 00-08, the officer plead guilty to one count of discreditable conduct following his conviction, for which he received an absolute discharge, for the theft of $79.15 from a woman’s purse at a bar while he was off duty. The Commission upheld Walker’s dismissal.

43. The respondent relies on the Commission’s decision in Detective Constable James Buckle and OPP, OCCPS, #05-02. Buckle was found guilty of four counts of Discreditable Conduct for misappropriating approximately $4,000.00. The Commission upheld the penalty of dismissal imposed by the Hearing Officer.

44. The Divisional Court dismissed the Officer’s appeal: [2006] O.J. No. 554. Justice Cunningham wrote the following:

In our view, dismissal was clearly within a range of available penalties. The Commission found no basis to interfere with that decision. It is generally accepted that an employer is entitled to dismiss as employee for cause, in this case, fraudulent activity. The cases involving police demonstrate over the years that dismissal is, and can be, an appropriate disposition in cases involving theft or fraud. As the Commission noted, the Delano case illustrates the view that police officers should be held to a higher standard than members of the public.

Justice Cunningham also wrote that while the Court might have decided otherwise, that was not the test by which to judge a decision being reviewed.

45. We are satisfied that the penalty of dismissal was within the range of dispositions, although obviously at one end of the range, open to the Hearing Officer. This was conceded by the appellant.

iii. Did the Hearing Officer err in law by imposing a penalty that was harsh and excessive given the circumstances of the case?

46. The appellant submits that her dismissal was unreasonable in all the circumstances of her case. She again contrasted her dismissal with the demotions imposed in MacDonald, Mennie, Fraser and Coleman.

47. “The circumstances of this case” were fully canvassed in the decision of the Hearing Officer who weighed the thirteen factors to be considered in imposing a penalty. Again, we are not to reweigh these factors.

48. In our view, the actions of the appellant are tantamount to theft from her employer. Her “discreditable conduct” amounts to unethical conduct. Her repeated submissions of false claims were deliberate and planned as opposed to the spur of the moment theft of $79.15 that the Commission found justified the dismissal of the officer in Walker, supra. Her behaviour over an eleven-month period, including the attempted cover-up, was antithetical to what is expected of a police officer.

49. Theft, or fraud, are violations of a fundamental feature of the employment relationship, especially in the case of police officers who, it has repeatedly been stated, are held to a higher standard of conduct. There is little difference, conceptually, between the theft in Walker and the actions of the appellant.

50. In our view, the reasons of the Hearing Officer, when read as a whole, withstand the test of reasonableness as enunciated in DUNSMUIR V. NEW BRUNSWICK, [2008], S.C.R. 190, where the majority wrote:

…reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

51. If one were to blindly apply the consistency of penalty principle, the importance of which we acknowledge, police officers will have one free pass to falsely claiming benefits, then trying to cover-up their actions by forging documents, without the threat of dismissal. That would erode public confidence in the discipline process.

52. The Hearing Officer referenced the six other cases of benefits fraud by employees of the respondent. No valid rationale, in our view, has been provided to distinguish benefits fraud situations from those of straightforward theft, when considering consistency of penalties. The appellant essentially pilfered the respondent’s petty cash repeatedly until she was caught.

53. The Hearing Officer, quite reasonably, highlighted the brevity of her employment with the respondent, a factor that, on its own, distinguishes her situation from the cases of MacDonald, Mennie, Fraser and Coleman. In Guenette and Ottawa-Carleton Regional Police Service, the Commission set aside the dismissal of the officer who stole $200.00 from another customer, who had left his bank card in the A.T.M., substituting a demotion from First Class Constable to Third Class. However, in that case, Guenette had been an officer for sixteen years with an unblemished record and there was psychiatric evidence of his suffering from depression.

54. As noted in Ceyssens, Legal Aspects of Policing, (Salt Spring Island: Ealscourt, 1994) at pages 5 – 274 to 5-279, employment history is an important factor which can be mitigating or aggravating. A significant period of employment unblemished by prior discipline constitutes a strong mitigating factor. However, in the case of an officer with short service where the misconduct began shortly after being hired, that will undoubtedly constitute an aggravating factor.

55. The appellant worked for the respondent for less than two years before she began to engage in the submission of fraudulent claims to Sun Life each month for eleven months. When questioned about the last of these claims, she submitted an altered receipt. When this claim was still not paid, she contacted Sun Life and provided further false information, exacerbating her misconduct.

56. The Hearing Officer found the Applicant’s misconduct to be a “flagrant abuse of her position, oath of office and duties as a police officer”. While we may not necessarily agree with the decision to dismiss the appellant, we cannot conclude that in all of the circumstances the decision to do so was unreasonable, a conclusion that would be required before setting aside the decision: McLEAN V. BRITISH COLUMBIA (SECURITIES COMMISSION) 2013 SCC 67, [2013] 3 S.C.R. 895 at para. 41. Accordingly, we confirm the decision of the Hearing Officer.

Dissent:

57. The factual circumstances of this case leading to the charges of misconduct against the appellant have been described in detail in the ASF filed before the Hearing Officer and referenced in the decision of the Hearing Officer and the decision of my fellow panel members. The issues to be determined are also set out in the decision above.

58. The penalty under appeal is one of dismissal, being the most severe form of discipline under the PSA. It is not to be imposed except in the case of the most egregious misconduct, Favretto, supra.

Background and Principles

59. A review of the Hearing Officer’s penalty decision in this case must therefore be conducted by carefully considering and applying the following principles established by the Commission and the courts, some of which have been referenced by my colleagues in the above decision:

• The standard of review by the Commission of a hearing officer’s penalty decision is reasonableness, Karklins, (supra); Ontario Provincial Police and Purbrick, 2013 ONSC 2276 (Div. Ct.); Ottawa Police Service and Diafwila, 2016 ONCA 627 (Can Lll);

• An appeal to the Commission is an appeal on the record. Although there is not the advantage of hearing and observing witnesses and acknowledging that deference must be accorded to a hearing officer’s findings related to credibility and to factual circumstances, the Commission can review the record of the first instance hearing, including the transcripts of testimony and documentary evidence filed at such hearing. We can only intervene if the record and the reasons for decision disclose that there has been a error in principle or relevant issues have been ignored or the hearing officer’s conclusions cannot reasonably be supported by the evidence, Blowes-Aybar and Toronto (City) Police Service, (2004) CarswellOnt 1583 (Ont. Div. Ct.);

• In reviewing the reasons of a hearing officer, our task is not to be overly critical of the language used nor is it to focus on the mistakes that do not affect the decision as a whole, Galassi and Hamilton (City) Police Service [2005] (O.J. No. 2301 (Div. Ct.); see also-Legal Aspects of Policing, Ceyssens, Paul;

• The Commission has stated that its function is not to second-guess the hearing officer or to substitute its decision but 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 to be done lightly, Karklins, supra;

• Similarly, the above principle was expressed as not being the Commission’s function to second-guess a hearing officer’s decision, particularly in those cases where the Commission might have imposed a different disposition. Rather, it is the Commission’s role to assess whether or not the hearing officer applied the correct principles and whether or not, in the circumstances the penalty imposed is manifestly excessive, Walker and Peel Regional Police Service, supra;

• Likewise, in Hall and Ottawa Police Service, December 5, 2007 (O.C.C.P.S.), the Commission stated that “in order to vary the penalty, the penalty must be unreasonable, fail to consider all relevant matters, demonstrate a manifest error in principle or, its imposition would amount to an injustice”;

• 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 at hearing the matter at first instance, Kobayashi, supra;

• In Williams and the Ontario Provincial Police December 4, 1995, (OCCPS), the Commission provided an outline of the sentencing factors to be considered in coming to an appropriate penalty decision in police discipline cases. That listing has subsequently been expanded to thirteen factors as described in Krug and Ottawa Police Service, January 21, 2003 (OCCPS);

• In Williams, the Commission expressed, as one of the factors, the importance of taking into account prior disciplinary cases dealing with similar types of misconduct and affirmed the rationale previously stated by the Commission in Schofield and Metropolitan Toronto Police, (1984) 2 O.P.R. 613 (O.P.C.) that “consistency in the disciplinary process is often the earmark of fairness. The penalty must be consistent with the facts and consistent with similar cases that have been dealt with on earlier occasions”. That principle was affirmed in the case of Reilly and Brockville Police Service, May 12, 1997, OCCPS;

• In Gibson and Waterloo Regional Police Service, (1986) 2 O.P.R. 707 (O.P.C.), the Commission noted that appeals of this nature [against dismissal] confront the Commission with the fact that there is no absolute standard by which to measure the appropriate penalty. There are reasons why province-wide uniformity is not always an appropriate objective. The forces of the Province are each entitled to emphasize corrective measures for problems, which may be of particular concern to them. Concerns may change from year to year; community demands and standards may be different from one to another. In many respects what may appear just and fair to one hearing officer may not appear likewise to another. Fairness can be a matter of opinion;

• In Favretto supra, the Commission, after citing Gibson and expressing hesitancy in substituting its own thoughts on the fairness of a penalty for those of the hearing officer who heard the evidence, assessed the witnesses and was close to the needs of the force and the community, nevertheless went on to state: “that being said, the Commission may vary a penalty if the penalty is unreasonable, would amount to injustice or unfairness or if all relevant factors have not been fairly and impartially considered”;

• The Commission has stated that, in applying the principle of consistency of penalty to provide fairness, the unique fact situations in each case must be considered. Often it is very difficult to assess each case and apply the fact situation to other cases, Gregg and Midland Police Service, OCPC No. 01-11. Similarly, while fact situations vary, a spectrum of misconduct and resulting penalties can provide a good comparative analysis to assist in determining an appropriate and fair penalty, Guenette and Ottawa Carleton Regional Police Service, OCCPS #98-15, White and Reid, supra;

• The Commission has previously stated that the seriousness of the misconduct alone may warrant dismissal. That includes misconduct involving theft or other fraudulent or deceitful activity and particularly of a repetitive nature, Buckle, supra, Walker, supra;

• The Commission established a “usefulness test” to be used in determining whether dismissal is the appropriate penalty. That test consists of three factors, being: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the police force that would occur should the officer remain on the force, Guenette, supra;

• In Carson and Pembroke Police Service, July 27, 2001 OCCPS, the Commission commented that rehabilitation is a very significant factor to be taken into account when imposing penalty especially when the offender has a prior unblemished employment record. Unless the officer is beyond rehabilitation, in which case he would be a candidate for dismissal, the door should be kept open for the officer to be rehabilitated. In that case, the penalty imposed (ie. a reduction in rank from first-class constable to fourth-class constable), was expressed to be the most serious penalty next to dismissal;

• In Favretto, supra, the Court of Appeal recognized that every attempt should be made to consider the possibility of rehabilitation, particularly where the officer has a good employment record, unless the offence is so egregious and unmitigated;

• Cases involving theft and/or deceit, particularly of a criminal or repetitive nature, constitute very serious misconduct at the high end of the scale and the penalty must reflect that seriousness. Such misconduct violates the officer’s oath of office and the values of the force, undermines the public’s trust in police and negatively impacts the reputation of the police force. The range of penalties lies between demotion and dismissal, Buckle, supra; Chan and Toronto Police Service, OCPC, No. 10-06; Stewart and Calgary Police (1994), 2 O.P.R. 613 (O.P.C.);

• However, criminal conduct may not necessarily result in dismissal, Toronto Police Service and Kelly 2006 CanLII 14403 (ON SCDC), [2006] O.J. 1758 (QL)(Div. Ct.);

• In considering the application of progressive discipline, the particular misconduct of an employee may be so serious that dismissal is warranted despite the absence of prior warnings or disciplinary action, Stewart, supra;

• In Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J.No.9, the Supreme Court stated at paragraph 47:

“Certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law.”

60. How then to apply the above principles to the factual circumstances of this case?

Analysis

61. In reviewing the decision, commencing at page 2 and continuing to page 17, the Hearing Officer summarized the charges against the officer, the plea, the ASF, the exhibits and the evidence of the four witnesses who testified. From pages 17 to 32, he outlined the submissions of the prosecution and defence. At page 32, he began his analysis and at pages 41 to 43 he summarized his final evaluation and disposition.

62. The Hearing Officer correctly identified the thirteen factors to be applied in determining penalty as set out in Williams and Krug and expressed his opinion and conclusions on each of the factors with the exception of several important factors which will be dealt with below.

63. While it is not appropriate to reweigh the Hearing Officer’s conclusions relating to the mitigating and aggravating factors he considered, there are a number of significant inconsistencies and omissions in his analysis of the evidence which are very troubling. I will deal with these concerns but the most troubling aspect relates to the absence of any real comparative analysis of the important factor of consistency of sentencing.

64. The Hearing Officer correctly identified that:

“Consistency of disposition is a critical factor when dealing with the potential of demotion or dismissal”. [Decision, page 39, emphasis added]

“Consistency of disposition requires that I must take numerous factors into consideration; what the actual misconduct was, what led to the misconduct and the actions or inactions of the officer and Management along with many other issues.”

66. He then added:

“Additionally, I must take into consideration that for dismissal to be the final disposition, I need to determine that the officer’s usefulness as a police officer has been annulled.”

67. Without analyzing the factor of consistency of penalty and conducting a comparative analysis of the similar cases referred to him by counsel, the Hearing Officer then proceeded to review the factors and law related solely to dismissal. [Decision, page 40]

68. The Hearing Officer then stated:

“Furthermore, other similar cases should be reviewed as ‘consistency in the disciplinary process is often the earmark of fairness’. In relation to my review of MacDonald, Mennie and Fraser, I do recognize that when imposing penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency. [Decision, page 41, emphasis added]

“The many cases provided by both the Prosecution and Defence have given me a significant amount of relevant material for consideration.” [Decision, page 41]

69. Unfortunately, nowhere in the analysis or evaluation portion of his decision did the Hearing Officer actually conduct such comparative analysis of the factual circumstances of this case with those of factually similar cases of MacDonald, Mennie and Fraser, notwithstanding the urging of counsel for the officer at the disciplinary hearing. All three of those cases resulted in the demotion, not dismissal, of the officers.

70. It must be pointed out that the analyses of the aforesaid cases was presented by the prosecution and the defence counsel in their submissions and not by the Hearing Officer in his analysis or evaluation contained within his decision. Specifically, he did not provide any reasons for distinguishing this case from those three prior cases aside from referring to the length of service of the appellant. He did not establish and provide reasons why this case was much more egregious and deserving of more severe penalty than the officers in MacDonald, Mennie and Fraser. The appellant deserved to be advised why she was being given a more severe penalty.

71. In my view, this omission to provide a comparative analysis of similar cases undermines the concept of consistency of disposition supporting fairness and constitutes a significant error in principle. Reviewing the decision as a whole, including the statements made focussing more upon the grounds for dismissal than considering other forms of disposition such as significant demotion, is an error that has affected the outcome of the decision and has undermined the conclusion reached by the Hearing Officer to dismiss the officer. With respect, it is not enough simply to say that the cases provided to him by the prosecution and defence had given him a significant amount of relevant material for consideration without outlining his comparative analysis justifying his conclusion that this case required a more severe penalty of dismissal. This error undermines the justification for the decision and lacks transparency in his reasoning.

72. An examination of the facts of the MacDonald, Mennie and Fraser cases reveals a significant similarity to the factual circumstances of this case. Each officer committed benefit fraud over a period of time with some obtaining substantially more financial benefits than the appellant. Each was involved in personal relationship problems resulting in financial and emotional stresses. Each was charged criminally as well as with disciplinary offences and subsequently pleaded guilty to all charges, paid restitution, acknowledged their misconduct and expressed remorse. At the time of the offences each held the office of a First Class constable and had no prior discipline record.

73. In reviewing the reasons for decision in each case, there is a significant similarity in the aggravating and mitigating factors. There were differences in the length of service as a police officer with the appellant having the least record of service.

74. An examination of the reasons in this case reveals inconsistencies in the comments of the Hearing Officer related to his consideration of the mitigating and aggravating factors. For example, on page 36, when considering the appellant’s employment history he stated: “Her employment history with YRP is somewhat mitigating in nature and holds minimal weight.” However, on page 43, when referring again to her employment history and the length of her service he stated: “I would consider this an aggravating factor.”

75. Also on page 43 of his decision, in the context of considering the potential for rehabilitation, the Hearing Officer stated: “I too believe that she has learned from this and can move forward”, but goes on to say: “Her conduct and decision-making leads to a fundamental character flaw that I find impossible to rehabilitate.”

76. While it is important not to focus upon and criticize the wording used by the Hearing Officer, nevertheless, in trying to determine the reasoning process, I find these inconsistencies troubling. Although they may very well be justifiable, it is very difficult to determine whether there was a fair consideration of those specific factors.

77. In addition to the inconsistencies, there are a number of omissions of relevant evidence relating to the factors to be considered. For example, in reviewing her employment history, the Hearing Officer stated:

“I have reviewed the Performance Appraisals (PA) that were provided for the Hearing. These PA’s are not exemplary nor are they poor; they are average or ‘Meets Standards’. Her last PA with comments from S/Sgt Trach identified that she needed to ‘bring her numbers up’, [referring to the provincial offences enforcement] as he believed that she was performing below her abilities when it came to enforcement.” [Decision, page 35.]

78. He stated at page 43:

“Her employment record is, at best, what one would say is average – it is not exemplary nor is it poor. I have no documentation before me outlining how she performed while a member of the Ottawa Police Service.”

79. These comments ignore evidence available within the Performance Appraisals. For example, the PA dated September 12, 2011, discloses that the appellant met standards in all performance categories. In the categories of communications, use of technology, teamwork, safety and professionalism and deportment the appellant is noted to exceed standards. The comments of her supervisor note that she has excellent communication skills (oral, written and listening), excellent skills in knowledge and use of technology, is well respected by her peers, is professional in dealing with the public and her colleagues, is a safe and conscientious officer who has excellent work ethic, positive attitude and enthusiasm towards her career. This performance review recommended the appellant be promoted to First Class constable.

80. The PA, for the period October 22, 2011 to October 22, 2012, was signed by her appraiser on March 16, 2013. That form does not provide for a performance rating of “exceeds standards”. In every category the appellant met standards. The supervisor’s notations indicate that the appellant is a valued member of her platoon who brings experience from the Ottawa Police Service and an ability to speak and translate Arabic and French language. She has acceptable levels of production in most areas but should concentrate on increasing her criminal and HTA enforcement moderately.

81. This evidence, contained in the record, was not mentioned in the Hearing Officer’s assessment of the appellant’s employment record. It calls into question his conclusion regarding the appellant’s employment record as being aggravating.

82. In view of the Hearing Officer’s failure to set out clearly and logically in his reasons why the appellant was to be dismissed when other officers in similar factual circumstances were demoted seriously undermines the well-established principle of consistency of disposition. Additionally, his omission to consider relevant evidence related to the appellant’s employment history along with the inconsistencies in his reasons related to the issue of the appellant’s potential for rehabilitation leads to the conclusion that the decision to dismiss the appellant is unreasonable and the imposition of such penalty is harsh and excessive. (Karklins, Walker, Hall, Kobayashi, MacDonald, Mennie and Fraser.)

83. In these circumstances, pursuant to section 87 (8) of the PSA, the Commission may vary or revoke the decision being appealed or may substitute its own decision.

84. The Hearing Officer was correct and I concur with his conclusions that the appellant has fallen far short of the expectations of the public and the Service regarding the conduct of police officers. Police officers are to be held to a higher standard both on and off duty and are expected to obey the laws they are under oath to enforce. To commit a criminal act of benefit fraud not once but repeatedly over a number of months is a significant breach of the public’s trust and is extremely serious misconduct.

85. There is no doubt that there is a need for specific and general deterrence in the circumstances. The evidence before the Hearing Officer was that there were a number of similar cases of benefit fraud occurring not only with civilians and officers of the Service but also in other police services. In fact, one other officer with the Service was also the subject of similar charges of misconduct, which had occurred at relatively the same period of time, and whose case was decided after this case, Coleman, supra.

86. In that case, the officer received a substantial demotion. Over a nineteen month period, the officer submitted 231 false claims for personal training services purportedly rendered to his former spouse which were either not provided or were not verified by him and which totalled over $22,000.00.

87. The comments of the Hearing Officer are noteworthy and instructive. After actually comparing the facts of the case to the circumstances of other similar cases, he stated that he found the MacDonald case compelling and stated:

“Due to the fact MacDonald was not terminated and he was convicted of a criminal offence and two counts of discreditable conduct and deceit, I find it difficult to terminate the employment of Constable Coleman.”

“If it were not for the positive work performance and immediate pleas to accept responsibility, the disposition would have been more severe.”

“Striving for consistency in a disposition is a balancing act involving a number of considerations that speak to the specifics of the misconduct, the environment in which the misconduct occurred, the action or inaction of the management of the service and other issues”, Coleman, page 22.

88. There is no question that there has been significant negative media coverage of the misconduct of the appellant. That fact has damaged the reputation of the Service in the eyes of the public. Whether there will be longer-term damage remains to be determined; however, that is a possibility. If the appellant is allowed to continue with the Service, there will be some potential for negative impacts including the application of the McNeil requirement.

89. The misconduct committed by the appellant is deserving of a significant penalty for the above reasons. The seriousness of the misconduct does not support the application of progressive discipline.

90. Taking into account those conclusions of the Hearing Officer which are supportable and considering the analysis of consistency in penalty, I would impose the penalty below:

i) Const. Husseini shall be demoted from First Class Constable to Fourth Class Constable commencing immediately for a period of 12 months and thereafter shall be eligible for promotion through the ranks in accordance with the promotional criteria of the Service.

ii) In addition, Const. Husseini shall undertake 12 hours of financial counselling with a qualified financial consultant approved by the Service, such counselling to be completed within six (6) months from the date of this disposition.

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

VI. Disposition

91. Pursuant to section 87(8)(a) of the Police Services Act, the Commission confirms the decision of the Hearing Officer to allow the appellant seven days from the date of this decision to resign or face termination from employment with the respondent.

DATED AT TORONTO THIS 6th DAY OF FEBRUARY, 2017

D. Stephen Jovanovic

Ted Crljenica