ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Tribunals Ontario

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

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

Citation: Carter v. Ontario Provincial Police, 2018 ONCPC 10

Date: May 31, 2018

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

Between:

Cst. J.A (Jill) Carter Appellant

and

Ontario Provincial Police Respondent

DECISION

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

Appearances: Joanne E. Mulcahy, counsel for the appellant Brian Whitehead, counsel for the respondent Kegan Chang, student – at – law, for the respondent

Place and date of hearing: Toronto, Ontario May 16, 2017

Introduction

1The appellant was convicted of one count of Discreditable Conduct contrary to section 2(1)(a)(xi) of the Code of Conduct in O.Reg 268/10, enacted under the Police Services Act (the PSA) following a hearing before Superintendent Michael P. Shea (the Hearing Officer). In a decision dated December 14, 2015, the Hearing Officer ordered that the appellant resign within seven days failing which she would be dismissed as an officer with the respondent.

2The appellant has appealed both from the finding of misconduct and the penalty imposed.

Disposition

3For the reasons that follow the appeals from conviction and the penalty are dismissed.

Background

4The appellant and Cst. Lisa Peck, another officer employed with the respondent, had been in a domestic relationship since 2008. In November 2009, the appellant gave birth to a son, J.P.C., conceived by way of a donor jointly selected by her and Cst. Peck. The three of them resided together as a family in Chatham-Kent for a few months after the birth of J.P.C. However, the appellant then moved with J.P.C. to Niagara Falls to be closer to her mother who was dealing with various medical issues.

5The appellant maintained a close, long-distance relationship with Cst. Peck over the next three years. That relationship became somewhat strained in early 2013 as the appellant could not commit to moving closer to Cst. Peck, who began dating another woman.

6The events giving rise to the misconduct charge began on May 3, 2013 when the appellant was to return to Chatham-Kent to attend the funeral of a mutual friend with Cst. Peck. That morning the appellant was at a hospital with J.P.C. where he was having surgery. While there, she sent a series of text messages to Cst. Peck and her eighteen-year-old daughter Jordyn.

7These messages dealt with the affair Cst. Peck was having, the difficulties the appellant was experiencing with J.P.C. both that morning and generally as a single parent, and the appellant’s ongoing court issues. The appellant wrote, in part, that she was losing her mind, wanted to jump off a bridge and that she was going to leave J.P.C. at the Chatham-Kent police station.

8The appellant and J.P.C. arrived at Cst. Peck’s home late in the evening of May 3. Due to the appellant’s behaviour, Cst. Peck left her house to spend the night at her sister’s nearby home. The appellant left Cst. Peck’s house shortly after midnight, leaving J.P.C. in the care of Jordyn.

9The following morning the appellant returned to Cst. Peck’s home where she grabbed Cst. Peck’s cell phone, left the house briefly, then returned whereupon she began a loud argument with Cst. Peck over the affair she was having. Jordyn told the appellant to leave the house but she refused. When Jordyn asked her again to leave, the appellant said “go fuck yourself” and punched a wall near where Jordyn was standing. Jordyn went to another room and called 911.

10The transcript of the 911 call indicated that Jordyn told the dispatcher that the appellant had grabbed a knife from a kitchen drawer. According to Cst. Peck, the appellant grabbed the knife while holding J.P.C. and put it to the right side of her neck near the jugular vein. The appellant did give the knife to Cst. Peck when asked by her to do so.

11As police sirens could be heard approaching the house, the appellant tried to reach for the knife drawer but was prevented from doing so by Cst. Peck. According to Cst. Peck, the appellant threatened to kill herself and J.P.C. and drive head-on into a transport truck on “the 401.”

12The police arrived and took the appellant, voluntarily, to the hospital for assessment under the Mental Health Act. She was released from the hospital the same day without being admitted. She was subsequently charged with three offences under the Criminal Code. These charges were eventually withdrawn with the appellant agreeing to a Peace Bond.

13The Hearing Officer, in his analysis as to whether the appellant was guilty of Discreditable Conduct, set out the following issues:

1. Does the off-duty conduct of P.C. Carter on May 3 and/or 4 have some nexus with her functioning as a police officer?

2. Was the conduct of P.C. Carter on May 3 and 4, 2013 likely to bring discredit upon the reputation of the Ontario Provincial Police?

3. Is it necessary to prove each aspect of the allegations (particulars of allegations) as identified within the Notice of Hearing or should the behaviour be more appropriately be considered in totality when determining whether or not she acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ontario Provincial Police?

4. Does the fact that criminal charges were withdrawn have any impact on the decision of this tribunal?

5. If this tribunal drew an inference from the evidence that P.C. Carter was suffering from some form of mental illness at the time of this incident could that excuse her behaviour?

6. Did P.C. Carter act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ontario Provincial Police and do the actions of P.C. Carter on May 3 and/or May 4, 2013, therefore constitute misconduct as identified in Section 2(1)(a)(xi) of the Code of Conduct contained in the Schedule to Ontario Reg. 268/10, as amended, and is there sufficient clear and convincing evidence for a finding of guilt?

14The Hearing Officer concluded that the appellant’s actions on May 4, 2013 did constitute Discreditable Conduct as they were very likely to bring discredit to the reputation of the respondent. In so finding, he noted that he was required to balance the following: a) the public interest; b) the interests of those affected, including Cst. Peck, J.P.C. and Jordyn; c) the interests of the appellant and; d) the interests of the respondent as an employer.

15The penalty phase of the hearing took place over six days. The Hearing Officer, in a comprehensive 47 page decision, addressed the 15 factors typically considered in deciding an appropriate penalty. He was also provided with approximately 170 decisions dealing with police discipline matters. He wrote the following:

Knowing that the intent [of discipline] is to correct and deter errant behaviour, the philosophy that discipline should be more remedial versus punitive, where possible, has been a consideration in regard to this matter, as has the presumption that a respondent police officer is entitled to the most favourable disposition, where possible.

16We will now deal with the appeal against the conviction first and then the appeal of the penalty.

THE CONVICTION APPEAL

Analysis

17The standard of review applied by the Commission to 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 at paras. 53-63. Questions as to whether the facts satisfy a legal test are questions of mixed fact and law and are also to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53.

18In assessing the reasonableness of a decision, the question to be asked is whether there is “justification, transparency and intelligibility within the decision-making process” and whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para. 47.

Discreditable Conduct

19The appellant submitted that the Hearing Officer made 16 errors, the first being his interpretation of what amounted to Discreditable Conduct. In particular she questioned the Hearing Officer’s comment about the “appearance of wrongful conduct” and conduct that “could be deemed criminal.”

20The Hearing Officer wrote the following at page 19 of his decision:

I find the conduct of P.C. Jill Carter on May 4, 2013, when she held a knife to her neck while holding her son, threatened to kill herself and her son, threatened to drive a motor vehicle into a transport truck on one of Ontario’s busiest highways, her [sic] reached back for the knife drawer when she heard the sirens, and the intentional tossing of the cell phone are all actions a reasonable person would find discreditable. I also find that knowing these actions were committed by a police officer would cause community members to question the credibility of the O.P.P. I also find that these actions, when brought to the attention of the general public, would damage the reputation of the O.P.P.

21The Hearing Officer expanded on these incidents at page 20 of his decision, writing the following:

Threatening to drive a motor vehicle into a transport truck on the 401 highway in an attempt to kill herself and her child is also extremely troubling when one considers not only the consequences to the child and her life, but the ramifications that action on many other affected individuals, including the transport truck driver, other innocent motorists on the highway, and the potential for multiple deaths and injuries.

22The Hearing Officer concluded his decision by correctly stating the standard of proof as being that of “clear and convincing” evidence and reasonably finding that the actions of the appellant “would lead any reasonable person to conclude that the reputation of the Ontario Provincial Police would be discredited by this behaviour.”

23In our view, it cannot be seriously disputed that the conduct of the appellant as found by the Hearing Officer, was “likely to bring discredit” upon the respondent. His use of the words “appearance of wrongful conduct” or conduct that “could be deemed criminal” must be read in the context of the entire decision.

24The appellant submitted that the Hearing Officer committed an error when he wrote the following:

Although there is always a presumption of innocence in regard to accused persons who are before the courts, that is not the issue. The issue is the officer’s conduct—regardless of whether or not criminal charges were initiated, or the final disposition in the criminal court process.

25The Hearing Officer correctly stated the burden of proof on several occasions throughout his decision. The “presumption of innocence” under section 11(d) of the Canadian Charter of Rights and Freedoms does not apply to police disciplinary hearings: Re Trumbley et al and Fleming et al, 1986 CanLII 146 (Ont. C.A.). What does apply is a burden of proof on the prosecution to prove the misconduct on “clear and convincing evidence” as correctly stated by the Hearing Officer.

Findings without notice

26The appellant submitted that there was a breach of natural justice and procedural fairness when the Hearing Officer wrote that a finding of Post Traumatic Stress Disorder (PTSD) would first have to be raised internally as an “injured on duty” matter with Human Resources. However, the Hearing Officer also wrote that there was no expert evidence called to support the “indirect” suggestion that the appellant’s work as a Collision Reconstruction Officer caused PTSD. There are limited circumstances under which a Hearing Officer is permitted to use personal experience in deciding a matter. While the Hearing Officer should not have referred to his own knowledge as to how PTSD claims are handled, he was correct in stating that, in any event, there was no expert evidence called to establish the connection.

27We do agree with the appellant’s submission that the Hearing Officer’s comment that there would also have to be the involvement of the WSIB to determine the legitimacy of a claim of PTSD before it could be considered in a disciplinary hearing was unreasonable. However, as will be explained below, this error does not impact the ultimate finding of Discreditable Conduct.

28The Hearing officer also quoted a small portion of a report prepared by Justice Campbell Grant titled “Inquiry re alleged improper relationships between personnel of the Ontario Provincial Police and persons of known criminal activity under the Public Inquiries Act”, dated July 28, 1970 (the Grant Report).

29The Hearing Officer prefaced his use of the quotation by writing that it was a useful document for the review of police officer conduct. The first paragraph of the quotation was as follows:

This inquiry is based on the premise that there is a minimum standard of conduct which police officers must observe in their private lives. This standard is quite obviously much higher than the standard required of an ordinary citizen. The most basic reason for requiring this high standard of care in a policeman’s private as well as public life stems from the realization that the efficient operation of a police force depends upon the existence of mutual respect and trust between the public and the police and also among the members of the police force itself. This mutual respect and trust will deteriorate when the conduct in a policeman’s private or public life is less than blameless.

30The appellant doesn’t quarrel with the content of this statement but only with the fact that the Hearing Officer considered it, along with an article by Ceyssens titled “Off-Duty Police Conduct, A Discussion Paper” and the decision in Trumbley, above.

31Adjudicators should be cautious when referring to materials in their decisions that were not presented during the hearing process. However, that it is not to say that doing so automatically constitutes an error that would justify setting aside a decision. The Grant Report was written almost 50 years ago. The concept of requiring a higher standard in the private lives of police officers has since found its way into numerous decisions. The Ceyssens article was written 18 years ago and the Trumbley decision was released 32 years ago. We see nothing in the article or the decision that could possibly have come as a surprise to the appellant, who was represented by very experienced counsel. Accordingly, the Hearing Officer’s mentioning of these materials is not a sufficient ground to warrant our intervention in the decision.

Irrelevant Considerations

32The appellant submitted that the Hearing Officer erred when he wrote the following:

In deciding the merits of this case I find it prudent to review the purpose of the police discipline process, in particular, the importance of balancing:

a) the public interest,

b) the interest of those affected,

c) the interest of the respondent police officer; and

d) the interest of the police employer.

33This statement is well supported by the authorities in Ceyssens: Legal Aspects of Police, Earlscourt (2006). At pages 53-54 the author wrote that police discipline should serve four distinct purposes, namely:

1. The process should protect the interests of the employer.

2. It should protect the rights of police officers suspected of misconduct.

3. The police discipline process has a public purpose: ensuring a high standard of conduct in the constabulary, and public confidence in the constabulary.

4. When members of the public are involved (whether or not they register a formal complaint), the process should ensure that the interests of those individuals are protected.

We see no error by the Hearing Officer in repeating the well-known purpose of police disciplinary proceedings.

Mischief

34The Hearing Officer wrote that the appellant, in tossing the cell phone, was “not only disrespectful of another person, it could be deemed criminal.” The appellant submitted that as there was no damage to the cell phone, there could be no offence of mischief under the Criminal Code. Section 430 of the Criminal Code defines several different types of mischief, some requiring that there be damage, others not so requiring. However, even excluding the cell phone incident entirely, there was far other more serious conduct on the part of the appellant that the Hearing Officer found that supported the conviction.

Speculation

35The appellant submitted that the Hearing Officer engaged in speculation by drawing the inference that Cst. Peck was relieved when Jordyn called the police. In our view, this was not an unreasonable inference in all of the circumstances. The Hearing Officer saw and heard the witnesses. It is not our function to second-guess reasonable inferences he made from hearing the testimony of witnesses.

Off duty matter/Involvement of another police service

36The appellant submitted that the Hearing Officer erred in his approach in deciding whether there was a nexus between her off-duty conduct on May 4, 2013 and her functioning as a police officer. Section 80(2) of the PSA provides that a police officer shall not be found guilty of misconduct “…..if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force.”

37The Hearing Officer wrote: “The involvement of the Chatham-Kent police service in this matter, regardless of the outcome of any criminal matter, has an effect on the reputation of the O.P.P., even if only among its own members.”

38The appellant submitted that this statement was a “bald assertion” with no supporting evidence. It has been repeatedly stated that there need not be evidence of actual damage to the reputation of a police service to support a conviction for Discreditable Conduct. In Silverman and Ontario Provincial Police, 1997 CanLII 22046 (OCCPS), the Commission wrote the following:

[T]he jurisdiction of the Police Services Act is not limited to on-duty activities and any officer whose off-duty activities bring discredit upon the reputation of the Police Service is subject to discipline by the Service. The measure used to determine whether conduct has been discreditable is the extent of the potential damage to the reputation and image of the Service should the action become public knowledge.

39Additionally, the test to establish Discreditable Conduct is an objective one based on the reasonable expectations of the community. In our view, the conclusion of the Hearing Officer as to the appellant’s off-duty conduct amounting to Discreditable Conduct was reasonable.

No evidence of anger on the part of the appellant

40The Hearing Officer wrote the following:

I believe that [the appellant] acted out of anger. When she read the text messages between [M.D.] and [Cst.] Peck she was angry. She re-entered [Cst.] Peck’s home, threw her phone and confronted her about the affair.

41In our view, under the circumstances, an inference of anger on the part of the appellant was a reasonable one for the Hearing Officer to have drawn. He read the text messages from the appellant and heard the evidence of Cst. Peck and Jordyn.

Findings without evidence

42The appellant submitted that the Hearing Officer made five errors by making findings without or contrary to the evidence. These are as follows:

• He found erroneously that there was no response by Cst. Peck to any of the text messages.
• He found erroneously that Cst. Peck agreed that at no time did the appellant ask for help.
• He found that Cst. Peck had an interest in the results of the hearing.
• He erroneously found that at no time did Cst. Peck tell Jordyn not to call the police.
• He exaggerated and overstated the evidence in finding that the allegations occurred over two days.

These errors, if made, are inconsequential in nature, and given the other evidence of the appellant’s conduct as determined by the Hearing Officer, do not affect the integrity of his findings as to Discreditable Conduct.

Finding that withdrawal of criminal charges irrelevant

43The appellant submitted that the Hearing Officer erred when he decided that the withdrawal of the criminal charges was irrelevant as they were referred to in the Notice of Hearing. No authority was cited by the appellant on this submission. A prosecutor need not establish every particular set out in a Notice of Hearing to successfully establish misconduct. We see no error on the part of the Hearing Officer when he wrote that “the conduct of the officer is at issue and not the fact that criminal charges were initiated.”

Approach to mental illness and state of mind

44The Hearing Officer wrote the following at page 23 of his decision:

Although it is possible that evidence in regard to mental illness could be relevant at the disposition stage (mitigating factor), the determination of whether or not the conduct is excused because of some form of mental illness is beyond the scope of what this tribunal can decide. The determination at this hearing is whether the behaviour constituted misconduct—discreditable conduct.

45The appellant submitted that the Hearing Officer did not “fulfill his duty” to consider the evidence as to her mental state at the time of the altercation and that he ignored relevant evidence on the point.

46The appellant called as a witness Mr. Dan Scott, the lawyer who represented her on the criminal charges arising from the May 4 incident. Through Mr. Scott, two medical reports were introduced as exhibits, without objection from the prosecution. He was then cross-examined on the contents of the reports. The authors of the reports were not called to testify.

47One of the reports, dated May 8, 2013, was written by Dr. Mauro DeLorenzi, a clinical psychologist with the Psychological Service, St. Catharines Probation and Parole, Ministry of Community Safety and Correctional Services. The appellant was initially interviewed by him, or someone from his office, in September 2012 following a probation order stemming from an earlier offence.

48Dr. DeLorenzi wrote that the appellant’s issues of concern were quite serious in nature and included, in part:

• Post-traumatic events that had occurred throughout her years as an OPP officer in investigating serious accidents and many involving death;
• She was victimized at work due to her sexual orientation and was working in a poisoned environment;
• She appeared to be suffering from severe symptoms commonly associated with PTSD;
• She appeared to have experienced a recent mental breakdown, necessitating emergency hospitalization, with a serious attempt at self-harm.

49Dr. DeLorenzi recommended that the appellant be admitted to an in-patient program to “address PTSD and other mental health concerns including anxiety and depression.”

50The second report filed by the appellant, dated August 26, 2013 was co-signed by Dr. A. Johnson, a psychiatrist with the Homewood Health Centre in Guelph, where the appellant had been an in-patient from July 3 to August 28, 2013. Dr. Johnson wrote that the appellant “has been diagnosed and has been receiving treatment for Post-Traumatic Stress Disorder.” He recommended a “graduated and accommodated approach” to a return to work for the appellant. However, he acknowledged that “no on-site job analysis” had been conducted and that his assessment “does not determine the patient’s competence to perform safety sensitive activities, including fitness to carry a weapon.”

51The evidence of Dr. DeLorenzi and Dr. Johnson was sufficient to establish that the appellant was experiencing symptoms of, if not actually suffering from, PTSD. However, in our view the Hearing Officer appropriately focussed his attention on the question of whether the appellant’s actions on May 4 amounted to Discreditable Conduct.

52In Favretto v. Ontario Provincial Police, 2002 ONCPC 3, aff’d in 2004 CanLII 34173 (Ont. C.A.), the Commission dealt with an appeal by the officer from a conviction for discreditable conduct arising from an incident where he pointed his service weapon at another officer. Favretto was charged with the offence under the Criminal Code of pointing a firearm but was acquitted based on the defence of non-insane automatism or disassociation.

53The Commission, in upholding the conviction, wrote the following:

Even had the Hearing Officer accepted the medical theory of Dr. Orchard, it would merely offer an explanation for Constable Favretto’s actions and not an excuse. The conduct of Constable Favretto…was clearly and undeniably discreditable.

54In so deciding, the Commission was following its earlier decision in McCoy v. Ontario Provincial Police, 1989 CanLII 6720 (ONCPC). In that case, the Commission accepted the argument that while psychiatric evidence may explain certain conduct, it does not give rise to a lawful excuse for misconduct.

55In our view, the same principle should be applied to this matter. The appropriate stage of a misconduct hearing to consider the mental state of an officer, in most circumstances, should be, as in Favretto, when the penalty is being decided.

Limiting the evidence of Jordyn Peck

56Ms. Peck was a nursing student when she gave evidence at the hearing in 2015. At one point during her cross-examination she was asked by the appellant’s counsel if she had been involved in “mental health nursing.” Ms. Peck began to relate her experience at the Waypoint Penetang Centre in dealing with people “in mental instability in their most critical moments.”

57The prosecutor objected and the Hearing Officer asked counsel if an opinion regarding the appellant’s mental health was going to be elicited. The appellant’s counsel indicated that she was not going “much further” than what Ms. Peck had already testified to about her observations of the appellant. Ms. Peck, in answer to a follow-up question, stated “Like she didn’t care about how she had looked and from my experience when someone is really starting to deteriorate mentally they look like that.”

58The prosecutor again objected, at which point Ms. Peck stated that she was providing an “opinion” and not a diagnosis. Ms. Peck had earlier testified as to her observations of the appellant on May 3 and 4. She stated that she believed the appellant was having a “mental breakdown.” We see no error when the Hearing Officer sought, to a large extent unsuccessfully, to restrict Ms. Peck from giving her opinion as to the mental state of the appellant.

Bald assertions and conclusory statements

59The appellant argued that the Hearing Officer made a number of bald or unsupported conclusions. As an example, the appellant submitted that the Hearing Officer commenting that her actions “are all actions a reasonable person would find discreditable” was somehow improper. In our view, for the reasons given above, when considering if the Hearing Officer properly applied the test for discreditable conduct, there is nothing objectionable about this comment.

Failure to consider relevant evidence

60The appellant submitted that because the Hearing Officer based his finding of Discreditable Conduct on the evidence of Cst. Peck and Jordyn Peck, he must have misapplied their evidence. The Hearing Officer reached a number of conclusions that were open to him to make on the evidence of both of these witnesses. To repeat, they testified about the appellant holding the knife to her throat and threatening to kill herself and her son by driving into a transport truck on the 401. The Hearing Officer in fact did apply their evidence.

Misconduct of the investigator

61The appellant submitted that because the Professional Standards investigator made a number of record-keeping errors, which the appellant labeled as “misconduct”, the Hearing Officer should have taken this into account in deciding the matter. The appellant did not suggest what the relationship was between these errors and the finding of Discreditable Conduct. We see no merit to this argument.

Prior consistent statements

62The appellant submitted that the Hearing Officer erred when he permitted the prosecutor to tender as evidence prior consistent statements of two witnesses. In reviewing the transcripts, it appears to us that one instance of the Hearing Officer doing so was when Cst. Marchand, an investigating officer with the Chatham-Kent police, was asked to identify statements given by Jordyn and Cst. Peck. The second occasion was when the prosecutor asked to show Cst. Peck, who was his witness, her prior statement.

63The appellant relies in part on the decision in Feldman v. Royal College of Dental Surgeons of Ontario, [1992] O.J. No. 2531 (Div. Ct.). There, the court wrote the following:

[I]t is better as a matter of practice, particularly in the case of a principal witness whose credibility is severely attacked, to refrain from introducing previous complaints as exhibits to be adopted during the testimony of the witness.”

64However, the court also wrote the following:

In this case however, the improper admission of the complaint letters did not appear to result in any unfairness having regard to the actual content of the letters, the way they were used, and the very full cross-examination on all of the evidence.

The error in the admission of the complaint letters could not have affected the result.

65The appellant also cites the Commission decision in Stevenson v. York Regional Police Service, 2013 ONCPC 12 as support for her submission. In Stevenson, the Commission recognized the discretion afforded a Hearing Officer to admit hearsay evidence under section 15(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, “unless its receipt would amount to a clear denial of natural justice.” The Commission found that the Hearing Officer should not have allowed a statement from a “clearly unreliable accuser” who had “no credibility” and whose “evidence went to the central issue in the case” and who was not available for cross-examination. That is a markedly different situation from the present matter where the individuals who gave the statements did testify and to some extent in a manner favorable to the appellant.

66For the foregoing reasons we confirm the appellant’s conviction for Discreditable Conduct.

THE PENALTY APPEAL

67In Karklins v. Toronto (City) Police Service, 2010 ONSC 747 (Div. Ct.), the court adopted the following description of the role of the Commission in a penalty appeal:

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 principle 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 acts are not considered. This is not something done lightly.

68Similarly in Kobayashi and Waterloo Police Service, 2015 ONCPC 12, the Commission wrote the following:

[T]he 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.

69Ultimately, within the above framework the question to be decided is whether the penalty imposed was reasonable.

70In her factum, the appellant submitted that the Hearing Officer made 45 errors in his 47 page decision when deciding the appropriate penalty. Many of these alleged errors were not pressed in oral argument. We will deal with the principle submissions. Suffice it to say, we have reviewed all of the alleged errors and do not find that any of those not specifically referred to in this decision would change the result.

71The appellant cited different passages from the Commission’s decision in Favretto. Two of these passages are as follows:

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 where 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.

A penalty must be tailored to both punish and deter while not causing undue or excessive hardship. The penalty of dismissal is the ultimate penalty. It should be reserved for the most serious offences committed by a police officer where there is no hope for rehabilitation, there are no significant mitigating factors and where the police officer is of no further value to the police service or community in general.

72We agree with the foregoing comments, which must be considered along with the standards of review set out above.

73The Hearing Officer began his penalty analysis at page 28 of his decision. He wrote that the goal of the police discipline process included correcting errant behaviour or misconduct, deterring misconduct and reassuring the community. He then structured his decision by setting out and dealing with the fifteen factors commonly considered in determining an appropriate penalty. These are as follows:

1. Public interest;
2. Nature and seriousness of the misconduct;
3. Recognition of the seriousness of the misconduct;
4. Disability and other relevant personal circumstances;
5. Provocation;
6. Procedural fairness considerations;
7. Employment history;
8. Potential to reform or rehabilitate the police officer;
9. Effect on police officer and her family;
10. Consistency of disposition;
11. Need for specific and general deterrence;
12. Systemic failure and organizational/institutional context;
13. Damage to the reputation of the police service;
14. Effect of publicity;
15. Financial loss resulting from unpaid interim administrative suspension.

74The appellant’s submissions for the most part do not directly correlate to these factors. We will deal with the Hearing Officer’s alleged errors as they intersect with these factors. Where appropriate, the alleged errors will be combined for the purpose of our review of the Hearing Officer’s decision.

Errors as to consideration of the appellant’s mental state

Errors in consideration of disability and relevant personal circumstances

75The appellant submitted that the Hearing Officer either ignored or minimized the evidence as to her mental state at the relevant time, even though in the misconduct part of the decision he indicated it could be relevant when considering the appropriate penalty.

76The appellant further submitted that the Hearing Officer made a number of errors in his consideration of her mental state at the relevant time including that he:

• Approached the medical evidence as if he were conducting a misconduct inquiry;
• Found that medical evidence must establish a clear connection to a medical condition;
• Held that no witnesses were called to give expert evidence in regard to disability;
• Was unreasonable in “alluding” to evidence of mental illness;
• Found that there was no clear connection to the behaviour of the appellant and a mental illness;
• Erred in holding that to find mitigation due to a disability he required an expert witness;
• Held that it would set a dangerous precedent to accept what was presented as suitable evidence of a disability;
• Wrote that it could be a ploy or ruse [to allow police officers the use of mental illness as an alibi/excuse for mitigation purposes, without requiring medical proof to convince tribunals to accommodate undeserving individuals, especially in view of the appellant’s suicide attempt.

77In Moraru v. Ottawa Police Service, 2008 ONCPC 1, the Commission wrote the following:

[D]uring the penalty phase of a disciplinary hearing, not unlike the sentencing phase of a criminal trial, it is incumbent on the trier-of–fact to consider whether PTSD, a medically recognized illness, influenced the actions of the officer and, if so, to what extent. Having concluded that Constable Moraru was suffering from PTSD, the real issue before the Hearing officer was what weight the effect of the PTSD should be given as a mitigating factor in assessing penalty.

78In Markham v. Waterloo Police Service, 2015 ONCPC 4, the Commission considered the evidence needed to establish that an officer’s mental state impacted his actions. The Commission wrote the following:

We agree with the respondent that there is no professional medical evidence which could support any argument that the misconduct resulted (even partially) from the stress Cst. Markham was experiencing, or from any other circumstances in his life.

In light of the fact that no professional medical evidence was presented that directly correlated the Appellant’s misconduct to the anxiety and stress of his personal circumstances, we believe that the Hearing Officer gave proper weight to this factor.

79Accordingly, in order to establish a nexus or connection between a disability (to use a generic word) and the misconduct in question, there must be medical evidence presented to support that connection: See also Ceyssens, Ontario Police Services Act, Fully Annotated (Earlscourt, 2016) at pages 342-343.

80The Hearing Officer, appropriately in our view, was concerned about the quality of the medical evidence presented and in particular the reports of Dr. DeLorenzi (see para. 46 above) and Dr. Johnson (see para. 49 above). He wrote the following at page 31 of his decision:

To make a finding that mitigation is due to this officer because of a disability related to mental illness, additional information was required. In order to establish that Jill Carter’s misconduct was the result of a medical condition, or that she is currently suffering from a medical condition, testimony from a witness with sufficient skill, training and knowledge to provide opinion evidence in that regard was needed. A witness, who could acknowledge his/her duty to the tribunal to be independent, fair and objective in all opinions to be given, would have been useful.

81The defence chose not to call Dr. DeLorenzi or Dr. Johnson to testify. The prosecution apparently did not object to their letters being submitted without requiring their authors to be available for cross-examination. Instead, the prosecutor was put in the somewhat unusual position of having to cross-examine Mr. Scott as to the quality of their evidence. The Hearing Officer lamented the fact that no expert was called to give evidence.

82It would be tempting to find that the appellant’s PTSD, which was definitively diagnosed by Dr. DeLorenzi, was the cause of, or had some connection with, her actions on May 4, 2013 that led to the finding of misconduct. It would be equally tempting to find that the appellant’s subsequent suicide attempt was proof that those actions were as a result of her PTSD. Leaving these temptations aside, the defence chose not to call evidence to establish the necessary connection that could then be considered a mitigating factor.

83The Hearing Officer did recognize, to an extent, the appellant’s personal circumstances. He wrote the following at page 32 of his decision:

P.C. Carter had the stress of being a single parent and caring for her ill mother and sister. This tribunal acknowledges that she also had to cope with a former partner who was involved with someone new. That does not excuse her behaviour on May 4, 2013. Mitigation is given to her regarding circumstances at the time, but it is not sufficient to outweigh the aggravating factors of this case.

To this extent, the Hearing Officer did find that the appellant’s circumstances were mitigating factors.

84We do take issue with the Hearing Officer’s comment about a police officer using mental illness as an alibi/excuse for mitigation purposes without requiring medical proof. This appears to have been a general comment made about possible situations where there is little or no evidence of mental or psychological issues presented. The appellant was diagnosed with PTSD during her stay at Homewood beginning on July 3, 2013, although according to Dr. DeLorenzi she had been experiencing symptoms commonly associated with PTSD somewhat earlier. She attempted to commit suicide shortly after May 4, 2013. While the medical reports filed were not sufficient to establish a connection between any mental health issue and the events of that day, it was inappropriate for the Hearing Officer to even indirectly comment about a ruse or a ploy in these circumstances.

Errors regarding consideration of probation.

85The appellant was placed on 15 months’ probation on June 15, 2012 following a criminal conviction. She submitted that the Hearing Officer erred in allowing the prosecution to introduce into evidence the probation order as there was no allegation in the Notice of Hearing that she breached the order. In advancing this argument, the appellant relies principally on the decision in Re Golomb and College of Physicians and Surgeons of Ontario, 1976 CanLII 752 (Ont. H.C.J.), but cited an additional 21 decisions in her factum.

86In Golomb, the physician was involved in a disciplinary hearing alleging professional misconduct in the manner in which he billed for certain services. However, there were no allegations that his conduct was fraudulent. Nevertheless, the Discipline Committee conducting the hearing made a determination that his conduct amounted to fraud. This decision was set aside by the High Court of Justice on the basis that a finding of professional misconduct for fraud could not be made where there were no allegations of fraud in the charges against the physician.

87The Hearing Officer did comment several times in his decision that the appellant was on probation. In reviewing these references, it does not appear that he placed any significant weight on this fact and certainly not more weight than on the underlying convictions for mischief and breach of recognizance

88In our view the principle set out in Golomb does not apply to this matter. The uncontested fact that the appellant was on probation at the time of the conduct giving rise to the Discreditable Conduct charge was relevant to the penalty phase of the hearing. We see no error on the part of the Hearing Officer in allowing the introduction of the probation order in that phase of the hearing where there is considerably more latitude allowed in what evidence both parties may present.

Errors in finding that the appellant had criminal convictions

89The Hearing Officer had before him two McNeil reports which correctly indicated that the appellant had been found guilty of assault and resist arrest. He incorrectly referred to these as criminal convictions. There is an important distinction in law between being found guilty of an offence for which an absolute discharge is given and a criminal conviction. The Hearing Officer erred in his choice of words but we do not see that error as a sufficient basis for setting aside the penalty imposed.

The evidence of Superintendent Jevons

90The appellant submitted that the Hearing Officer erred in relying on the evidence of Superintendent Jevons because she gave “personal, uninformed, biased, conclusory, argumentative, misleading opinions.” The appellant also alleges that the Hearing Officer erred in allowing the witness to introduce two policies of the respondent dealing with professionalism, the second of which came into effect in 2015.

91In reviewing the transcript of the evidence of Superintendent Jevons, it appears that any deficiencies in her testimony were brought out during a very thorough cross-examination. It is not apparent that the Hearing Officer placed any particular significance on her evidence in his analysis of the penalty which begins at page 28 of his decision.

92The first policy of the respondent dealing with professionalism was in effect in 2013. The appellant had been suspended with pay at that time for about five years and may not have been aware of the specifics of that policy. At page 35 of the decision, the Hearing Officer referenced the following quotation form the policy:

The conduct of an employee, both on and off duty, is scrutinized and applied to the OPP as a whole. The more professional the conduct, the higher the public’s confidence and co-operation. Similarly, this generates greater professional pride in the employee and the OPP.

Positive relationships are essential to our business. Such relationships depend on mutual respect and understanding, appropriate attitudes and behaviours.

93We see no prejudice to the appellant in the reference to this policy. The second policy was effective in 2015. The Hearing Officer indicated that he was interested in the differences between it and the earlier policy. He did not place any significance on the second policy and again we cannot see any prejudice to the appellant when the policy was introduced during the penalty phase of the hearing.

94Accordingly, we see no errors in how the Hearing Officer dealt with the evidence of Superintendent Jevons.

Errors regarding the evidence of Sergeant Tarnowski

95Sgt. Tarnowski testified that she was the respondent’s Provincial Co-ordinator of Abuse Issues. However, the Hearing Officer did not qualify her as an expert in domestic violence. He nevertheless allowed her to testify as to the respondent’s Domestic Occurrence Policy. At page 41 of his decision, the Hearing Officer referred to the decision in Williams and Ontario Provincial Police, (OPPHB, 16 September 2015) where Superintendent McElary-Downer wrote about “society’s abhorrence towards domestic violence” and how “some of the evidence of the worst domestic violence occur on the 400 series highways.”

96The Hearing Officer wrote that he heard “similar” evidence from Superintendent Jevons and Sgt. Tarnowski. In reviewing the transcript of her evidence, it is not clear to us what “similar” evidence Sgt. Tarnowski gave. The appellant does not, however, argue with the fact that Superintendent Jevons did give “similar” evidence. Accordingly, we see no prejudice to the appellant arising from the questionable comment made by the Hearing Officer.

Errors regarding reliance on media about unrelated matters

97Exhibit 95 was a 2012 article from the Waterloo Region Record titled “OPP officer in love triangle avoids jail.” The article referred to the appellant’s convictions for mischief and breach of recognizance. Exhibit 96 was a 2015 article from the Toronto Star that commented on various police discipline cases including one of the appellant’s. Exhibit 97 was an article from the Waterloo Region Advocate titled “More Police Behaving Badly”, which referenced one of the appellant’s convictions. Exhibit 98 was a 2015 article from the Hamilton Spectator dealing with police discipline cases and it included a reference to the appellant’s discipline history.

98The Hearing Officer admitted these articles on the basis that they “could reasonably impact the public’s perception of her future usefulness as a police officer.” He added that he would determine the weight, if any, to be given to these articles.

99Under the heading of Damage to the Reputation of the OPP the Hearing Officer wrote the following:

Case law dictates a tribunal to consider the potential damage to a service’s reputation should the public become aware of an officer’s misconduct and also the damage that would occur to the reputation of the police force should the respondent police officer remain a member.

This is an objective assessment and certainly applies to Jill Carter, who has been the subject of previous media attention. There is no doubt that the facts of this case and the findings of this tribunal, should they be made known to the public, would seriously affect the reputation of the OPP.

100The Hearing Officer applied the correct test in considering the potential damage to the reputation of the respondent. His brief mention of media attention does not affect his conclusion.

The Hearing Officer wrongly revisited previous discipline matters instead of considering the appellant’s potential to reform or rehabilitate.

101The appellant submitted that the Hearing Officer wrongly focused on her history of criminal incidents and misconduct, while essentially ignoring her most recent efforts at rehabilitation.

102The Hearing Officer’s analysis of the appellant’s potential to reform or be rehabilitated is set out in pages 35-38 of the decision. After stating that this was an important factor to be considered he wrote the following:

An important issue that this tribunal must decide is whether or not Jill Carter attended Homewood and sought counselling to mitigate the disposition in regard to this matter or if she truly wanted to get help for medical or mental health issues. What complicates this matter is the fact that this officer has shown complete disregard for the justice system and has previously been deemed to have provided false alibi evidence in court.

103The Hearing Officer then reviewed the appellant’s history of findings of guilt for resisting arrest and assault, wrongly stated by him to have been convictions; the three criminal convictions for mischief and failing to comply with a recognizance resulting in suspended sentences and probation and; her previous convictions for Discreditable Conduct. He then reviewed the substance of these charges and convictions in some detail. He did not directly resolve the issue which he stated above was important. Instead he focused on the appellant’s history, writing the following:

With such a long and horrendous history of criminal behaviour and a total lack of respect for the legal process and for the basic requirements of a police officer as outlined in the principles of the PSA, I find it difficult to put any significant weight on the ability to rehabilitate and reform Jill Carter.

It is this type of behaviour that causes me to conclude that Jill Carter is beyond rehabilitation. The wording of the various court findings and PSA decisions are telling. This results in her usefulness as a police officer being expunged.

104The Hearing Officer, after noting that past behaviour is indicative of future conduct, wrote the following:

P.C Carter has a history regarding her inability to control her anger in domestic matters. She has shown a lack of respect for the legal process through her conduct, specifically, resisting arrest and breaching her recognizance conditions while on conditional release.

105There was no evidence presented by the appellant that she was suffering from PTSD at the time of the previous events which the Hearing Officer reviewed. We cannot say that he erred in this part of his analysis.

106One troubling feature of this matter is the Hearing Officer’s conclusion that the evidence did not establish that the appellant suffered from a mental illness. This finding is to be differentiated from the one that there was no expert evidence presented to establish a connection or nexus between any mental illness and the appellant’s actions on May 4, 2013. At page 45 of the decision, the Hearing officer posed the following question:

Is there, on a balance of probabilities, evidence that P.C. Carter’s behaviour was a result of mental illness or is her misconduct a result of her inability to control her temper and maintain a professional demeanor under certain circumstances? Should “balance of probabilities” be the standard used to determine or define a prognosis of mental illness, specifically PTSD? Is that a reasonable standard?

107Consistent with his decision on the Discreditable Conduct charge, the Hearing Officer wrote that the appellant had the capacity to control her actions, put herself and Cst. Peck in an uncomfortable position and acted in a discreditable manner as a result of anger. At page 32 of his decision he wrote that he was not “convinced she suffers from a mental illness requiring accommodation by the OPP.” Then at page 45 he wrote that “Based on the evidence heard and the documentation reviewed in this matter, on a balance of probabilities, there was no ability for this tribunal to confirm the existence of a mental illness regarding Jill Carter.”

108These two comments ignore the letters from Dr. Delorenzi, Dr. Johnson and to a lesser extent, a letter dated April 26, 2015 from Dr. Jennifer Tiffney, a psychiatrist with the Niagara Health System. The letter from Dr. Tiffney is most noteworthy for its brevity and lack of detail. In our view, there was sufficient evidence, and these letters were evidence, to establish that the appellant had PTSD, although it is not clear when it began, nor is it clear from the letters what connection, if any, there was between the PTSD and her actions on May 4, 2013 when confronting her partner about an affair and then threatening to kill herself and her son.

109This case cried out for the testimony of an appropriate medical expert, which the appellant chose not to call. Such evidence is often given in similar cases where mental illnesses or disabilities are alleged and there is a need to relate the illness or disability to the misconduct. The appellant had not worked as an officer for almost five years. It would have been of considerable benefit to the Hearing Officer, as he recognized, to have had firsthand evidence to establish how her mental state contributed to her actions on May 4, 2013.

110The Hearing Officer was not satisfied that the evidence of Cst. Peck or Jordyn established a connection between the appellant’s actions on May 4, 2013 and any “handicap/illness.” He saw and heard these witnesses who were sympathetic to the appellant. He was clearly not satisfied with the letters submitted from Dr. DeLorenzi and Dr. Johnson. This dissatisfaction is evident from the following excerpt of his decision, at page 31:

It is important for this tribunal to consider the extent to which handicap/illness influenced P.C. Carter’s actions and the weight given to that mitigation.

Medical evidence in support of disability must establish a clear connection between the medical condition and the disability in question. No witnesses were called to give expert testimony in regard to disability.

Evidence of mental illness was alluded to by various witnesses in regard to Jill Carter’s physical appearance at the time of this incident. There was also evidence that this was “out of character” for Jill Carter.

There was limited mention of mental illness in documents submitted, and no clear connection to the behaviour of Jill Carter on May 4, 2013 and a mental illness.

To make a finding that mitigation is due to this officer because of a disability related to mental illness, additional information was required. In order to establish that Jill Carter’s misconduct was the result of a medical condition, or that she currently is suffering from a medical condition, testimony from a witness with sufficient skill, training and knowledge to provide opinion evidence in that regard was needed. A witness, who could acknowledge his/her duty to the tribunal to be independent, fair and objective in all opinions to be given, wold have been useful.

111Dr. DeLorenzi did write that “Ms. Carter appeared to have experienced a recent mental breakdown, necessitating emergency hospitalization, with a serious attempt at self-harm.” In our view, it was open to the Hearing Officer to reject or, at least, to place little weight on this evidence. Dr. DeLorenzi did not relate the “mental breakdown” to the PTSD. He did not explain what may have prompted the mental breakdown nor did he provide an actual medical diagnosis. It is not clear what facts he actually knew about the events of May 4, 2013. The penalty phase of the hearing began almost five months after the finding of Discreditable Conduct. That period would have allowed the appellant sufficient time to present the oral evidence from an expert that the Hearing Officer referred to in dealing with the misconduct part of the hearing.

112The Hearing Officer quoted the following passage from Markham and Waterloo Regional Police Service, 2015 ONCPC 4:

In light of the fact that no professional medical evidence was presented that directly correlated the Appellant’s misconduct to the anxiety and stress of his personal circumstances, we believe the Hearing Officer gave proper weight to this factor.

113He then wrote “Mitigation is given to her regarding her circumstances (stress) at the time, but it is not sufficient to outweigh the facts of this case.” In our view, this conclusion was reasonable in all of the circumstances.

114We are not satisfied that the Hearing Officer was wrong when he reviewed the appellant’s history of criminal charges, convictions and the PSA convictions, although he did overstate her “horrendous history of criminal behaviour” to an extent. In our view he was entitled, if not required, to conduct such a review.

Error in consideration of consistency in disposition

115The appellant submitted that the Hearing Officer failed to consider the authorities on penalty that she presented. In all, she submitted some 41 decisions. The respondent countered by stating that dismissal was consistent with the penalties applied in other cases where an officer was found guilty of Discreditable Conduct arising from domestic disputes, citing the following cases: Gulick v. Ottawa Police Service, 2012 ONSC 5536 (Div. Ct.); Quintieri and Toronto Police Service, 2001 CanLII 56740 (ONCPC); Rendell v. Canada (Attorney General), 2001 FCT 710; and Williams and Ontario Provincial Police, (OPPHB, 16 September 2015)..

116The Hearing Officer at page 38 of his decision acknowledged that “Consistency in disposition is one of the basic principles of a fair discipline process.” He then focused his comments on various decisions that set out principles to be applied in cases involving potential terminations of employment and acknowledged that dismissal “should only be awarded where the conduct is such that the continued presence of the Constable or Officer on the Force is incompatible with the principles upon which the Force operates.” He concluded that the appellant’s conduct in this matter and her past conduct warranted her dismissal. We are not satisfied that this penalty was outside the range of appropriate penalties.

Error with respect to good character evidence

117The appellant submitted that the Hearing Officer erred when he stated that “not one witness was called in this matter to speak to good character” and that he ignored the evidence of Cst. Peck, Jordyn and Inspector Fenske. These were prosecution witnesses and to some extent they did give favourable evidence on behalf of the appellant during their cross-examinations. The evidence of Inspector Fenske was fairly reviewed at pages 9-11 of the decision. It is clear that the Hearing Officer in making the above statement was referring to the fact that while the defence filed various letters in support of the appellant, no witnesses were called to testify as to her character.

Additional errors committed by the Hearing Officer

118The appellant submitted that the Hearing Officer made numerous other errors, including that he:

• Failed to give adequate weight to her employment history;
• Failed to consider provocation by Jordyn;
• Failed to distinguish the decisions in Favretto, Markham and Williams;
• Erred in his consideration of the damage to the reputation of the O.P.P.
• Erred in his consideration of management’s approach to the appellant’s misconduct;
• Erred in consideration of the need for specific and general deterrence;
• Made findings based on bald conclusory assertions;
• Focused on the appellant’s behaviour towards prior domestic partners;
• Erred in his approach as to whether the average citizen would have confidence in the appellant’s ability to deal with complaints of domestic violence;
• Erred in finding that the appellant had a fundamental character flaw;
• Erred in finding that there was a risk to the respondent in allowing her to continue working;
• Erred in finding no level of mitigation could justify the appellant’s continued employment; and
• Failed to consider the interests of those involved in the matter.

119Many of these alleged errors relate to inferences drawn by the Hearing Officer from the evidence, inferences that he was entitled to make. We are not satisfied that, to the extent any actual errors were made by the Hearing Officer, the ultimate penalty he imposed was unreasonable.

120We have reviewed the Hearing Officer’s consideration of the 15 factors that are typically to be taken into account in arriving at an appropriate penalty. He wrote that the nature and seriousness of the misconduct was “extremely aggravating and this weighs heavily in my decision.” The Hearing Officer dealt with the other factors in considerable detail. The appellant’s relatively short tenure with the respondent, her previous criminal convictions and PSA Discreditable Conduct convictions also weighed heavily in his analysis. We are not satisfied that he made any errors in principle that led to the imposition of an unfit penalty.

121The Commission has stated a number of times: “…that in certain cases, one event, or one instance of a lack of judgment justifies termination.” See Bovell and Toronto Police Service, 2012 ONCPC 10 and the cases cited therein. In our view this is one of those cases, more so after taking into account the appellant’s history of criminal actions, convictions and PSA convictions. The appellant held a knife to her throat, threatening to kill herself while holding her son in her arms. She then threatened to drive her vehicle with her son on board into a transport truck on Highway 401, in order to kill them both and possibly others. The seriousness of these actions and threats cannot be overstated. We acknowledge that the Hearing Officer did make a number of errors as detailed above. Ultimately, the question for us to decide is whether the penalty of dismissal barring a resignation is reasonable in all of the circumstances and we conclude that this penalty was reasonable.

ORDER

122Pursuant to section 87(8) of the Police Services Act, the Commission confirms the conviction for Discreditable Conduct and the penalty imposed, requiring the appellant to resign within seven days failing which she will be dismissed from the respondent.