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: Mahoney-Bruer v. Ontario Provincial Police, 2018 ONCPC 13

Date: October 31, 2018

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

Between:

Sgt. Dennis Mahoney-Bruer Appellant

and

Ontario Provincial Police Respondent

DECISION

Panel: D. Stephen Jovanovic, Associate Chair Jenny Restoule-Mallozzi, Member Winston Tinglin, Member

Appearances: Harry Black, Q.C., counsel for the appellant Claudia Brabazon, counsel for the respondent

Place and date(s) of hearing: Toronto, Ontario November 22, 2017

Introduction

1By way of a decision dated July 5, 2016, by Superintendent Greg Walton (the Hearing Officer), the appellant was convicted of one count of deceit, in that he knowingly made or signed a false statement in a record, contrary to section 2(1)(d)(i) of the Code of Conduct (the Code) as set out in O. Reg 268/10 under the Police Services Act (the PSA). The edited particulars to the charge were as follows:

On May 10 and 11, 2009, while on duty at Port Credit OPP, Sgt. Mahoney-Bruer charged three drivers: Bret Breznica; Naveed Ghafari; and Matthew Martino with offences under the Highway Traffic Act (HTA) and recorded evidence in his notebook, on provincial offences notices, summonses or other documents, which he knew not to be accurate.

2The Hearing Officer in a second decision dated December 15, 2016 ordered that the appellant be demoted from the rank of Sergeant to third-class Constable effective immediately. As the appellant had been suspended with pay since May 2009, the Hearing Officer took the unusual step of lifting what would have been an automatic stay of the demotion pending an appeal as provided for in section 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the SPPA). The purported authority for the Hearing Officer doing so was section 25(1)(b) of the SPPA.

3The appellant has appealed the conviction for deceit, the penalty imposed and the decision to lift the automatic stay of the penalty.

Disposition

4For the reasons that follow, the finding of guilt for deceit is confirmed. The penalty is varied to a demotion to second-class constable for six months and to first-class constable thereafter. Once the contractual period for serving as a first-class constable is complete, the appellant may join the promotional process for a possible return to the rank of sergeant. The appeal with respect to the lifting of the stay is moot.

Background

5The events giving rise to the charge against the appellant began on May 10, 2009, when he issued a Provincial Offence Notice (a PON) under the Highway Traffic Act (the HTA) to Naveed Ghafari, indicating that Mr. Ghafari had been traveling 157 km/h in a 100 km/h zone. The appellant did not complete his portion of the PON until May 12 when he wrote that he used a LIDAR (laser) device to determine the speed. He also wrote that the laser had been tested at 7:30 a.m. and 5:15 p.m. on the day the PON was issued. The appellant had in fact used a RADAR device.

6On May 10, 2009 the appellant issued a PON under the HTA to Bret Breznica indicating that he had measured Mr. Breznica’s speed at 145 km/h in a 100 km/h zone. The appellant, as in the situation with Mr. Ghafarei, used his dash pad notes to fill out his portion of the PON on May 12, 2009. The appellant wrote that he had used a LIDAR device and that Mr. Breznica’s vehicle was 78.7 m from the LIDAR device when the speed was recorded. The appellant subsequently advised, during the course of an investigation into his actions, that he had used a Genesis RADAR dash mounted unit and that he had estimated this distance.

7The third event involved Matthew Martino who was issued a PON by the appellant in May 11, 2009 indicating a speed of 154 km/h in a 100 km/h zone. Once again, the appellant used his dash pad notes to complete his portion of the PON on May 12, 2009. At that time he wrote that he had used LIDAR to measure the speed and that Mr. Martino’s vehicle was 178.7 m away from the device when the speed was recorded and locked in the device. The appellant then advised, during the investigation, that he did not use LIDAR but paced Mr. Martino instead.

8Following the investigation, the appellant was charged with three counts of breach of trust and three counts of wilfully attempting to obstruct the course of justice, contrary to the Criminal Code, all arising from the above three PONs he issued. All charges were dismissed in a decision by Justice Fitzpatrick given on February 25, 2015.

9The investigation into the appellant’s actions began when it was alleged by a tow truck driver that the appellant was receiving kickbacks from other tow truck drivers after he inflated his measured speeds of motorists in order to trigger charges of stunt driving. The investigation was under the supervision of OPP Inspector Martin Graham who testified before the Hearing Officer that no evidence of the appellant accepting kickbacks was ever found.

10During the course of that investigation, the appellant was interviewed by Detective Sergeants (Det/Sgt.) Baldassare Nuccio and Pete Donnelly in what was described as a “busy” Tim Hortons during the evening of May 21, 2009. The Hearing Officer found that the recording of this interview was poor and that the interview itself was disjointed and confusing to follow. He noted that the recorder failed to record the last thirty minutes of the interview. The Hearing Officer nevertheless determined the following from that interview.

• The appellant stated that he preferred using RADAR rather than LIDAR;
• When confronted with the three PONs, the appellant stated that he wrote down LIDAR out of habit, despite the fact that his habit was using RADAR;
• The appellant volunteered the idea that he wrote LIDAR because he was lazy;
• The appellant admitted he was using RADAR not LIDAR in the case of Mr. Breznica and that he simply estimated the distance he recorded;
• He did not use any speed measuring device with the Martino stop but decided to write down LIDAR;
• The appellant asked Det/Sgt. Nuccio if he was going to lose his job for what he had done.

11The Hearing Officer also noted some omissions during the interview, in particular reference to the numbers 78.7 and 178.7 that the appellant had recorded on two of the PONs. This omission will be discussed further below. The Hearing Officer did place considerable reliance on the interview writing: “The interview of Sgt. Mahoney-Bruer was crucial to the investigation; without an admission, there is evidence of inaccurate information but no evidence that information was knowingly documented with an intent to mislead.”

12The Hearing Officer began his analysis of the evidence and the parties’ submissions at page 39 of his decision where he stated that the standard of proof was clear and convincing evidence which was greater than a balance of probability standard but less than that of beyond a reasonable doubt. He adopted the following quotation from Alan v. Munro, Ont. B. of Inq., 27 July 1994: “There must be weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to a fair and reasonable conclusion that the officer is guilty of misconduct.”

13In dealing with the PON issued to Mr. Ghafari, the appellant testified that he tested the RADAR device at 07:30 and 17:15 hours on May 10, 2009, even though he indicated on the PON that LIDAR (or Atlanta Lazr) was used. The Hearing Officer did not accept the appellant’s explanations as to the testing times writing that the use of RADAR or the testing of it were not recorded in his notebook. They concluded that “…by making these false documentations…it was the intent of Sgt. Mahoney-Bruer to mislead or deceive the courts.”

14The Hearing Officer did not accept the appellant’s explanation that he was “so used to putting laser down” as an excuse for the misstatement. In fact, the appellant had stated in his interview with Det/Sgt. Nuccio that he did not use lasers often, preferring RADAR, so the appellant’s explanation was illogical, according to the Hearing Officer.

15The Hearing Officer, in finding an intent to deceive by the appellant, wrote the following:

The main purpose of documenting times of testing speed measurement devices is to support evidence in court. Those very notes could also be used by courts to accept a guilty plea and for subsequent penalty determinations. Therefore, by making these false documentations, I find it was the intent of Sgt. Mahoney-Bruer to mislead or deceive the courts.

16Similarly, the Hearing Officer did not accept the appellant’s explanations for the PON he issued to Mr. Breznica on May 10, 2009, finding instead that “…the entries made by Sgt. Mahoney-Bruer surrounding the testing of the Atlanta laser were intentional and known false statements; made to mislead the courts.”

17In his interview with Det/Sgt. Nuccio, the appellant explained that his notation of “78.7m” on this PON was simply an estimate of the distance between his vehicle and that of Mr. Breznica and that he had used RADAR and not the LIDAR. The Hearing Officer wrote that this explanation was “consistent with an individual scrambling for answers which might satisfy the investigator.” Neither did the Hearing Officer accept the different explanation the appellant gave at the hearing. He wrote the following:

Sgt. Mahoney-Bruer in his testimony attributed the entry of “87.7m” in his PON notes to an answer to a real estate question that was inadvertently included. He explained how he was working on a real estate question and he wrote the answer on the same dash pad that contained his HTA evidence and then he carelessly imbedded it in his PON officer notes on May 12, 2009. He explained that he was “bone-tired” when he wrote these notes and wasn’t thinking. He further stated he only recalled the real estate answer when he received his disclosure nine months later and saw the number.

I do not accept that Sgt. Mahoney-Bruer did not recall a real estate question when being interviewed by the investigators but then did so several months later. Had this been a truthful explanation, I fully expect Sgt. Mahoney-Bruer would have provided it at the time of the interview.

18Lastly, with respect to the PON for Mr. Martino, the Hearing Officer noted that Det/Sgt. Nuccio advised the appellant that although the PON indicated LIDAR, the downloaded data from the unit did not support that LIDAR had in fact been utilized. The appellant maintained that he had paced Mr. Martino and that he noted LIDAR because he “...didn’t want to go through all the pacing evidence like putting down, I was being lazy….And you know what I was lazy and well I faked (inaudible) but you know what….Okay, I fucked up. “

19The Hearing Officer then dealt with the notation on “178.7m” on the appellant’s version of the PON. Again, this number typically represented the distance between the LIDAR and the vehicle being monitored when the speed was recorded. The Hearing Officer did not accept the appellant’s explanation that this number was simply a correction of the answer he gave to the real estate question he wrote on his dash pad after the incident with Mr. Breznica.

20The Hearing Officer wrote the following in assessing the appellant’s credibility:

I found the testimony of Sgt. Mahoney-Bruer to be self-serving and impracticable. Considerable content of his testimony contradicted the information he provided to investigators during the interview. I did not find the testimony of Sgt. Mahoney-Bruer credible nor did I find the information he provided in his interview to be completely truthful.

21During the penalty phase of the hearing, the appellant suggested a forfeiture of 60 hours while the respondent sought his dismissal. The Hearing Officer, for reasons discussed in detail below, rejected the penalty of dismissal, writing:

The test for dismissal has not been met in this case. Sgt. Mahoney-Bruer committed serious misconduct, but based on mitigating factors such as his employment history, I have determined Sgt. Mahoney-Bruer has the ability to rehabilitate. In lieu of dismissal, the most appropriate sanction, considering all of the circumstances is a demotion in rank from sergeant to third-class constable.

22The appellant now submits that the appropriate penalty would be the forfeiture of eight days while the respondent supports the demotion as ordered by the Hearing Officer.

Issues

23The appellant listed the following issues in his factum in support of the appeal of the finding of guilt for deceit:

1. Failure to deal with relevant evidence inconsistent with guilt.
2. Inconsistent approach to fact finding.
3. Different approach to the appellant’s credibility than to prosecution witnesses.
4. Focus on minutiae.
5. Hearing Officer supplementing the evidence-radar testing.
6. Leap of logic.
7. Supplementing the evidence-officer notes-accept guilty pleas.
8. Finding the appellant guilty of matters beyond the scope of the Notice of Hearing.
9. Speculation-different and more serious offence.

24The appeal against the penalty was, in essence, on the basis that: 1.The penalty was not consistent with penalties in other similar cases. 2. The appellant was wrongly penalized for having an intention to mislead the court. 3. The Hearing Officer improperly relied on the decision in the criminal case in finding that the appellant repeatedly failed to tell the truth. 4. The Hearing Officer failed to properly take into account mitigating factors including the appellant’s unblemished twenty year career with the respondent.

25Finally, with respect to the lifting of the stay by the Hearing Officer under section 25 of the SPPA, the appellant submitted the Hearing Officer had no authority to do so and in the alternative, if he had the authority, he exercised it improperly.

ANALYSIS

The Conviction Appeal

26The 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 Service 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 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.

27In 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. Findings of fact and assessments of credibility are owed deference by the Commission: Paige v. Hanover Police Service, 2017 CanLII 36559 (ONCPC), at paragraph 18.

28There are three components to the offence of deceit under the Code: 1) Did the officer make or sign a false statement in a record? 2) Was the false statement made knowingly? And 3) Did the officer make the false statement with intent to deceive? As stated in Burgess and St. Thomas Police Service (1989), 2 O.P.R.822 (O.P.C.) at page 828: “It is a long mile, however, between the point at which one can find a statement to be inaccurate and the point at which one can find a statement was made with intent to mislead or deceive”.

29With these principles in mind, we turn to the issues raised by the appellant.

Failure to deal with relevant evidence inconsistent with guilt

30The appellant points to the following key facts that he submitted the Hearing Officer failed to consider:

• Why he would falsely write that he used a LIDAR device when he had not.
• One of the prosecution witnesses, Inspector Graham, conceded that he had no evidence that the appellant did not in fact use RADAR for Mr. Breznica and Mr. Ghafari and did not pace the Martino vehicle as he subsequently claimed.
• RADAR and LIDAR devices are equally accurate and accepted by the courts.
• After the appellant recorded that he had used LIDAR for Mr. Breznica and Mr. Ghafari, he recorded in the usage log that he had not used LIDAR.
• The evidence was uncontradicted and eventually conceded by the prosecution that the appellant had dash mounted radar in his vehicle on May 10, 2009.
• The appellant knew that he was under investigation and that the LIDAR devices had chips that would work so that speeds would be recorded.
• The appellant completed a usage log for the LIDAR (that he had created) on May 10, 2009 that he had not used LIDAR that day.
• One hour before he issued the PON to Mr. Martino, he stopped a Mr. Kazmi and correctly recorded that he used the LIDAR which was in his vehicle.
• The appellant stopped a Mr. Aniol, who was driving a white car, at 12:35 a.m. on May 13, 2009 and that after thinking of writing that he used LIDAR, he returned to his detachment to test his speedometer as he had paced Mr. Aniol and recorded this in his notes.
• It was clear that during his interview with Det/Sgt. Nuccio he confused the vehicle of Mr. Aniol with that of Mr. Martino who was operating a black car.

31According to the appellant, during the May 21st interview, he was told by Det/Sgt. Nuccio that the vehicle he had operated on May 10, 2009 was not equipped with RADAR when it in fact was and that the appellant was under surveillance on the days in question when he in fact was not. Det/Sgt. Nuccio made these statements to the appellant after flatly stating that he was not going to lie to the appellant.

32Again, according to the appellant, he was not given the actual PONs during the interview and, as the transcript confirms, Det/Sgt. repeatedly confused RADAR with LIDAR.

33In our view, it cannot be said that the Hearing Officer failed in his legal obligation to consider all relevant evidence, as submitted by the appellant. The Hearing Officer did in fact consider much, if not all of the above evidence. The appellant cites the Supreme Court of Canada decision Harper v. The Queen, 1982 CanLII 11 (SCC), [1982] 1 SCR 2 for the following proposition:

An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the relevant evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.

34The Hearing Officer conducted a painstaking review of the evidence. In our view, he did properly direct himself to all the relevant evidence bearing on the relevant issues.

35What the appellant appears to be arguing is that the Hearing Officer’s decision was unreasonable given the evidence. He submits that the totality of the evidence was “overwhelming evidence” of a lack of intent to deceive and that he was “at worst honestly mistaken.” The reasons of the Hearing Officer have to be examined in accordance with the principles set out in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 where Justice Abella wrote the following:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

36We shall deal with the reasonableness of the decision later in these reasons.

Inconsistent approach to fact finding

37The appellant submitted the following in his factum:

The Hearing Officer appears to have no recognition of the fact that he rejects the defence evidence because it is “illogical” but takes a generous and forgiving approach to prosecution evidence even though the Hearing Officer conceded it was completely illogical. He appears not to recognize two very contradictory approaches to the evidence….The Hearing Officer’s approach to defence evidence was arbitrary and unfair.

38The Hearing Officer did find that parts of the appellant’s evidence were illogical or nonsensical. For example, he wrote “It is illogical that someone who clearly prefers using the radar device over the laser would be ‘more used to putting laser down’…” In our view, the comments made by the Hearing Officer about parts of the evidence of the appellant being illogical or nonsensical were open to him to make on the evidence and essentially went to the appellant’s credibility.

39The Hearing Officer did not “concede” that the prosecution evidence was completely illogical as the appellant submitted. As will be discussed under the next heading, he accepted that evidence. We see no error in how the Hearing Officer considered the prosecution evidence.

Different approach to the appellant’s credibility than to the prosecution witnesses and focus on minutiae

40The appellant submitted that the Hearing Officer adopted a more stringent approach to his evidence that of the prosecution; that he erred in not giving reasons for describing the prosecution witnesses as being honest and; that he further erred in rejecting the appellant’s evidence as self-serving and “impracticable.”

41We do not agree that the Hearing Officer applied a more stringent approach to the credibility of the appellant than he did to that of the prosecution witnesses. As set out above, a Hearing Officer is owed considerable deference on findings of credibility, and for good reason, especially in this matter. The appellant appears to have been his own worst enemy in giving his explanations for what he wrote on the PONs and why. Just one example was why he wrote laser when he was normally used radar. The Hearing Officer adequately explained his credibility findings.

42Insofar as the comment by the Hearing Officer about the appellant giving self-serving evidence, that comment must be taken in the context of the entire decision. We acknowledge that there is a danger in disregarding evidence as being self-serving as even an innocent person has a reason to give self-serving evidence: R. v. Pham, 2012 ONSC 6340.

43In Rose v. Toronto Police Service, 2016 CanLII 84144 (ONCPC) the Commission considered an appeal by officers where the Hearing Officer wrote: “By contrast, the subject officers have a great deal to lose in this proceeding and have a significant interest to exaggerate or even fabricate evidence to avoid discipline.” In other words, self-interest.

44The Commission, in deciding if those comments tainted the decision, considered the decision of R. v. Laboucan, 2010 SCC 12. In Laboucan, the court dealt with a matter where a trial judge had rejected the defendant’s evidence in a sexual assault prosecution writing that the accused had a motive to lie because of his interest in securing an acquittal. The court, however, upheld the conviction of the defendant writing the following:

As stated at the outset, while some of the language used by the trial judge in his reasons may give cause for concern, when viewed in isolation, when the reasons are read in their entirety, and in light of the context of the trial as a whole, they reveal that the trial judge properly assessed and weighed the evidence of all witnesses, including the accused, without undermining the presumption of innocence or the burden of proof.

45In our view, the above quotation applies to the Hearing Officer’s decision. He explained why he did not accept the appellant’s evidence that he made honest or inadvertent mistakes in writing what he did on the PONs.

46The appellant submitted that the Hearing Officer focused on minutiae while ignoring relevant evidence. In short, the Hearing Officer did conduct a detailed review of the evidence, weighed that evidence and came to the conclusion that the appellant was guilty of deceit. We do not agree that he focused on minor points in the evidence while not considering other relevant evidence.

Hearing Officer supplementing the evidence-radar testing

47The Hearing Officer questioned the appellant’s evidence as to the time he claimed that he tested the RADAR device on May 10, 2009 in the incident with Mr. Ghafari. According to the appellant, the Hearing Officer impermissibly used his “unknown purported experience to fill in a gap in the evidence.” In our view, he did not do so. The appellant was charged with deceit for writing on the PON that he used LIDAR. The appellant admitted that he did write LIDAR, so whatever his evidence was about the timing of any RADAR testing was not relevant to proving the offence, although it could certainly be used as part of the overall assessment of credibility.

Leap of logic

48Paragraph 101 of the appellant’s factum sets out the essence of his submission on this point. It reads as follows:

Nowhere in his analysis does the Hearing Officer give any meaningful consideration to the fact that the entire prosecution theory that the appellant attempted to mislead that he had used the LIDAR when he had not is completely contradicted by the evidence that on returning to the detachment that day he recorded, in the log he had created, that he had not used the LIDAR device that day nor did the Hearing Officer give any meaningful consideration to any of the other matters referred to in paragraph 70 above.

49Paragraph 70 was a summary of evidence, with some argument, that the appellant submitted was inconsistent with a finding that he intended to mislead. Again, in our view the Hearing Officer did conduct an adequate review of the evidence presented and the parties’ submissions. His decision comes within the definition of a reasonable one when the Dunsmuir criteria are applied.

Supplementing the evidence-officer notes-accepting guilty plea

50The Hearing Officer wrote: “Those very notes could also be used by the courts to accept guilty pleas and for subsequent penalty determinations.” The appellant submits that there was no evidence to support this statement and that the Hearing Officer erred in creating evidence on the point. The Hearing Officer was an experienced OPP officer and obviously had knowledge of what an officer’s notes could be used for. We see nothing wrong with his writing that notes, that would be made available to a defendant through disclosure, would form the basis of a plea of guilty and determine a penalty.

51The appellant submits that the Hearing Officer essentially concluded that there was an intent to deceive because of the “apparently” false statements made by him. The Hearing Officer acknowledged the requirement set out in Burgess, above, that “there is a significant challenge leaping from the inaccurate statement to the conclusion of intent (to deceive).” Intent is determined by an assessment of all of the circumstances in a particular matter, with the credibility of an accused being part of those circumstances. We cannot say that in all of the circumstances or evidence presented to the Hearing Officer that his finding of intent was unreasonable.

Finding the appellant guilty of matters beyond the scope of the Notice of Hearing.

52The appellant submitted that the Hearing Officer had no basis for finding the appellant guilty of the intent to mislead the courts as the Notice of Hearing did not contain any reference to such an intent, that the appellant was not asked about such an intention in cross-examination and that the intent was not part of the record before the Hearing Officer.

53Section 2(1)(d)(i) of the Code provides that an officer commits deceit when he or she “knowingly makes or signs a false statement in a record.” The case law requires an intention to deceive. The appellant cites the decision in Re Golomb and College of Physicians and Surgeons of Ontario 1976 CanLII 752 (ON HCJ), 1976, 12 O.R. (2d) 73 in support of his submission that he was found “guilty of matters that were beyond the scope of the notice of hearing.” Two instructive passages from that decision are as follows:

Not only must the charge be correct in form and sufficient to inform the person charged, in general terms, of the charge against him, but must contain sufficient particulars to enable him to properly prepare his defence.

Was the appellant found guilty and sentenced for the offence for which he was charged?

54The last line of the Hearing Officer’s decision states the appellant was found guilty of deceit. There was no requirement that the Notice of Hearing set out who the appellant intended to deceive. The Hearing Officer wrote that the officer portions of the PONs were meant to be the anticipated evidence of the appellant. That was not an unreasonable statement to make and it does not appear that the appellant takes any issue with that statement. Accordingly, in our view, the appellant was convicted of the offence as charged in the Notice of Hearing, in that he “recorded evidence in his notebook, on provincial offences notices, summonses or other documents, which he knew not to be accurate.”

Speculation-different and more serious offence.

55The Hearing Officer wrote the following at page 50 of his decision:

[The appellant’s] explanation of how the incorrect information found its way onto his notes is not reasonable. It is just as plausible to conclude that the speed was estimated or fabricated by Sgt. Mahoney Bruer based on credibility issues.

56The appellant correctly points out that there was no suggestion by the prosecution or in the Notice of Hearing that he falsified the speeds he recorded. However, the decision of the Hearing Officer must be read in its entirety and when doing so he provided sufficient reasons for convicting the appellant of deceit.

The Penalty Appeal

57The precise penalty as imposed by the Hearing Officer was as follows:

I order Sgt. Mahoney-Bruer demoted from the rank of sergeant to third class constable effective immediately. He will progress through the constable reclassification process, from third-class to second-class and then to first-class constable as contractually obligated pursuant to section 85(1)(c) of the Police Services Act, R.S.O. 1990. Sgt Mahoney-Bruer will be then permitted to join the promotional process but he will not be automatically reinstated to his former rank of sergeant.

58The Hearing Officer noted the difficulty in determining the appropriate range of penalties to consider when he wrote the following:

Based on these two examples, it would appear appropriate for this tribunal to consider a sanction for Sgt. Mahoney-Bruer in the range of a forfeiture of 40 hours all the way to dismissal. This hardly seems like a range at all, rather a near infinite possibility of determinations.

59The prosecution sought the dismissal of the appellant, which position which it did not maintain on this appeal, while the appellant now submitted that the forfeiture of 8 days was appropriate. After the Hearing Officer decided that dismissal was not the appropriate penalty, he began at page 10 of his decision to consider the 13 factors typically taken into account when determining an appropriate penalty. These factors are as follows:

1. Seriousness of the misconduct
2. Consistency of penalty
3. Public interest
4. Recognition of the seriousness of the misconduct
5. Potential to reform or rehabilitate
6. Employment history
7. Specific deterrence
8. Procedural fairness
9. Effect of publicity
10. Damage to the reputation of the OPP
11. General deterrence
12. Disability or other personal circumstances
13. Effect on the police officer and his family

60The role of the Commission in an appeal from a penalty has been set out in several decisions and approved by the Divisional Court in Karklins v. Toronto (City) Police Service, [2010] O.N.S.C. 747 which adopted the following statement:

The role of the Commission in a penalty appeal 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.

61In Kobayshi and Waterloo Regional Police Service, [2015] ONCPC 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.

62The Hearing Officer determined that the range of penalties for deceit was between the forfeiture of 40 hours and dismissal by reviewing the dispositions in two relatively recent cases. In Toronto Police Service and McCahery, (2013), Superintendent Byrnes) the officer wrote 63 PONs naming two individuals for offences that did not occur and received a penalty of the forfeiture of 40 hours after pleading guilty. That penalty was based on a joint submission. In Karklins, above, the Commission upheld the penalty of dismissal where the officer failed to serve traffic tickets and a Notice of Suspension on an individual who was convicted in absentia and sentenced 15 days in jail, five of which he served before the wrongful conviction was discovered.

63The Hearing Officer wrote “This hardly seems like a range at all, rather a near infinite possibility of determinations.” He went on to write that an appropriate penalty must be carefully tailored to the individual case and address all of the distinguishing factors. He did just that over the next 49 pages of his decision, but in our view settled on a penalty that was not reasonable under all of the circumstances. .

64The Hearing Officer used the decision in Ottawa Police Service and Ellis, (2013, Superintendent Delaney) as, in effect, the minimum penalty for what he viewed as being similar misconduct. The officer in that case issued 33 PON warnings without evidence and was demoted for 18 months.

65We have reviewed the Hearing Officer’s assessment of the 13 factors set out in paragraph 59 above and do not propose to reweigh them, in order to be consistent with Kobayashi and the decisions cited therein. Indeed, the appellant doesn’t take any issue with how the Hearing Officer dealt with most of the factors. However, we do accept the appellant’s submission that the Hearing Officer did make errors in principle that justify a change in the penalty, although not to the extent he submitted.

66In paragraph 53 above we referred to the Divisional Court decision in Re Golomb and the reference to the need to answer the question “Was the appellant found guilty and sentenced for the offence for which he was charged?” As discussed earlier in this decision, no one suggested during the hearing that the appellant knowingly made the false statements on the PONs to mislead the courts. It was not put to him in cross-examination that he did so. The Notice of Hearing did not make this allegation. While we have held that the conviction was still proper as there was no need to specify who was being misled, in our view, coupled with other comments made by the Hearing Officer it was unfair to the appellant to base, even in part, the determination of the penalty on a finding that the appellant intended to mislead the courts.

67One such comment made by the Hearing Officer is found at page 24 where he wrote “Sgt. Mahoney-Bruer was caught in the act of fabricating evidence in preparation to commit perjury.” It was simply unfair to the appellant for the Hearing Officer to have drawn this conclusion.

68We accept the appellant’s submission that the Hearing Officer did make another error in principle when he effectively used the fact that he didn’t believe the appellant’s evidence as an aggravating factor in arriving at an appropriate penalty. The Hearing Officer wrote the following at pages 36 and 37 of his decision:

In this case concerning Sgt. Mahoney-Bruer, it has been determined he did not make an honest mistake as claimed. I found Sgt. Mahoney-Bruer knowingly wrote false information on the officer notes portion of the PON with intent to mislead the courts. The fact that he then knowingly and intentionally lied about that to PSB investigators, to Judge Fitzpatrick and before this tribunal must be a consideration when assessing the ability.

The testimony of Sgt. Mahoney-Bruer went beyond what could be construed as an honest belief in the propriety of what he did and I find his untruthful statements to be very relevant to his ability to rehabilitate.

69Justice Fitzpatrick made the following comments in his decision:

Ultimately, I am left in the position where I am unable to believe Mahoney-Bruer’s testimony…I am also, however, unable to reject Mahoney-Bruer’s evidence of what he described as the ‘perfect storm” of events culminating in these charges…In conclusion, the totality of the evidence, including that tendered by Mahoney-Bruer leaves me with a reasonable doubt as to whether he had the requisite intent for the charged offences.

70At page 53 of his decision the Hearing Officer wrote the following:

Similar to Justice Fitzpatrick, I found Sgt. Mahoney-Bruer was less than truthful in his explanation of the events. That absolutely aggravates this issue and when combined with his deceitful behaviour, causes me to conclude Sgt. Mahoney-Bruer is not capable of continuing in a supervisory role.

71In Rose v. Toronto Police Service, above, the Commission accepted the principle stated in R. v. Bradley 2008 ONCA 179 that it is an error for a trial judge to treat an accused’s fabricated evidence as an aggravating factor in deciding an appropriate sentence. In our view that is exactly what the Hearing officer did and he erred in doing so.

72What then is the appropriate disposition in the circumstances? As indicated above, the appellant took little to no issue with the Hearing Officer’s assessment of most of the 13 factors typically used in arriving at an appropriate penalty. The Hearing Officer was correct when he discussed the public interest and the need for honesty by police officers. An aggravating feature of this matter was that the appellant was a sergeant, a position of leadership. Yet, the appellant had a twenty year, unblemished career, a mitigating factor.

73In our view, in all of the above circumstances, a demotion to second-class constable for six months and thereafter to first-class would be an appropriate and reasonable penalty. Such a demotion falls within the range of penalties as found by the Hearing Officer and is well short of the dismissal ordered in Karklins.

Section 25 of the SPPA

74The Hearing Officer decided to lift the automatic stay under section 25 of the SPPA. The Hearing Officer explained his reasons for acceding to the request by the prosecution, noting that the appellant had been suspended with pay since May 29, 2009 and that he should not return as a sergeant pending any appeal. The appellant submitted in part, that the Hearing Officer did not have the jurisdiction to lift the stay as no appeal had yet been filed.

75In view of our disposition as to penalty, the issue of the stay is now moot and we decline to make any order regarding the propriety of the stay.

ORDER

76Pursuant to section 87(8) of the PSA, the Commission confirms the decision of the Hearing Officer finding the appellant guilty of deceit. The Commission varies the penalty to a demotion to second-class constable for six months and to first-class constable thereafter. Once the contractual period for serving as a first-class constable is complete the appellant may join the promotional process for a possible return to the rank of sergeant.