ONTARIO CIVILIAN POLICE COMMISSION
Safety, Licensing Appeals and Standards Tribunals Ontario
COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Cst. Lloyd Tapp
Appellant
And
Ontario Provincial Police
Respondent
DECISION
Panel:
D. Stephen Jovanovic, Associate Chair Theodore Crljenica, Vice-Chair Maureen Helt, Vice-Chair
Appearances:
James Girvin, counsel for the appellant Andrea Huckins, counsel for the respondent
Place and date of hearing:
Toronto, Ontario October 11, 2018
Introduction
1In a decision dated January 8, 2018, Superintendent Greg Walton (the Hearing Officer) found the appellant guilty of two counts of misconduct: discreditable conduct and insubordination. The allegations of misconduct were set out by the Hearing Officer as follows:
Count #1 Discreditable Conduct
PC Tapp committed discreditable conduct in that he did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit to the reputation of the OPP, contrary to section 2(1)(a)(xi) of the Code of Conduct contained in the Schedule to Ontario Regulation 123/98, as amended. The edited particulars of the allegation state:
On March 2, 2010 while on break from a Human Rights Tribunal hearing in Toronto, PC Tapp referred to his former detachment as racist.
Count #2 Insubordination
PC Tapp committed insubordination in that he was insubordinate by word, act or demeanor, contrary to Section 2(1)(b)(i) of the Code of Conduct contained in the Schedule to Ontario Regulation 123/98 as amended. The edited particulars of the allegation state:
On March 2, 2010 while on break from a Human Rights Tribunal hearing in Toronto, PC Tapp acted in an insubordinate manner, in that when approached by an OPP sergeant and asked a question, he said words similar to “John, you have nothing to say to me, you are a racist, I’m being frank with you.” PC Tapp then directed the sergeant to go over with the other group. PC Tapp’s comments were said in a loud and insubordinate manner.
2In a decision dated March 9, 2018 the Hearing Officer imposed a penalty of the forfeiture of 12 hours on each count. The appellant has appealed the findings of guilt and has requested a reduction in the penalty if only one of the charges is sustained.
Disposition
3For the reasons that follow, the findings of guilt on the charge of discreditable conduct and insubordination are confirmed.
Background
4The appellant became a police officer in 1987, first serving for four years with the Toronto Police Service then with the OPP since 2001, stationed at the Peterborough detachment at the relevant time. He encountered difficulties working at that detachment and believed that he was being discriminated against. He filed his first human rights application in 2005.
5The appellant testified before the Hearing Officer as to various interactions he had with Sgts. Brown, Smith and Martin while working at the detachment. In 2008 Sgt. Martin laid a “stunt driving” charge under the Highway Traffic Act against the appellant. According to the appellant, an article in the Peterborough Examiner publicized the charge with the headline “Officer charged with racing” which caused embarrassment to him and his family and his children were ridiculed at school.
6After the charge was dismissed following a trial, the appellant was quoted in a newspaper article saying that the investigation into the charge was “shoddy” and motivated by race. He was subsequently found guilty of discreditable conduct after a Police Service Act (PSA) hearing for making those comments.
7One of the appellant’s human rights applications alleging discrimination by various members of the respondent came on for hearing before the Human Rights Tribunal of Ontario (HRTO) on March 2, 2010. In addition to the appellant, Sgts. Smith, Brown and Martin were in attendance as either respondents or witnesses.
8Sgt. Gerry Smith had worked at the Peterborough OPP detachment as a sergeant from 1995 until his retirement in 2017. In his examination-in-chief before the Hearing Officer, he testified that he appeared as a witness at the HRTO hearing. Shortly before 2:00 p.m. he approached the appellant outside of the hearing room in what has been described as a public area. As the two of them shook hands, the appellant asked him if he was “still working at the racist detachment” and that he needed to “get out of that racist detachment.” Sgt. Smith then moved away from the appellant and joined Sgt. Brown who was standing nearby.
9Sgt. Smith also testified that shortly after he moved away, the appellant said words to the effect of “don’t talk to me you racist” to Sgt. John Martin who he observed standing next to the appellant. Sgt. Smith described the situation as being uncomfortable as there were people in the vicinity and the comments were inappropriate, because of the content as well as the volume and tone of the appellant’s voice. Sgt. Smith stated that he had never heard the appellant raise his voice to that level before, that he knew the appellant did commonly elevate his voice more than the average person, but on this date, it was louder than even on those occasions.
10Sgt. David Brown had worked out of the Peterborough OPP detachment as a platoon sergeant from 1995 to 2006. He testified before the Hearing Officer that he attended the Match 2^nd^ hearing as a witness, dressed in civilian attire as were all other officers in attendance, other than Sgt. Martin who was dressed in full uniform. According to Sgt. Brown’s evidence he overheard the appellant twice say to Sgt. Martin words to the effect of “when are you getting out of that racist detachment.” When cross examined Sgt. Brown acknowledged that he was a respondent in the appellant’s human rights application.
11The final witness for the prosecution was Sgt. Martin. He testified that he attended the hearing on March 2^nd^ and after lunch, in a public area outside of the hearing room he observed Sgt. Smith from about 25 feet away speaking with the appellant. According to Sgt. Martin he heard the appellant loudly say words to the effect of “I’m blessed to be out of that racist detachment.”
12A few minutes after he heard that conversation he was near the appellant and asked him why the hearing was on a break. Sgt. Martin testified that the appellant replied by saying “John, you have nothing to say to me. You are a racist.” Sgt. Martin, a police officer for 23 years, also testified that he was shocked by the comments, the offensive tone and the loud level of the appellant’s voice. It was not until his cross-examination that he acknowledged that he too was a respondent in the appellant’s human rights application.
13The appellant acknowledged in his evidence that he said to Sgt. Smith “Gerry, I’m surprised you are still at that racist detachment” and that he told him to “go join the rest of the racists over there.” There was some confusion in the appellant’s mind as to whether this conversation took place in the morning or the afternoon, but given his acknowledgment of what he said, the timing of the comments is not relevant.
14The appellant also acknowledged telling Sgt. Martin that he was a racist and lifting up his hand to indicate he wanted Sgt. Martin to stop. His explanation for doing so was that Sgt. Martin had ruined his family’s reputation with the stunt driving charge and that thought flashed through his mind when he and his wife were approached by Sgt. Martin.
15The appellant explained that while testifying at the HRTO hearing he referred to Sgts. Martin, Brown and Smith as racists so the comments he made to them outside of the hearing room were no different than those he made inside the hearing room.
16The Hearing Officer’s rationale for finding the appellant guilty of discreditable conduct is found in the following extract from his decision:
A reasonable person expects police officers to conduct themselves in a professional manner at all times. It was PC Tapp’s right to file a complaint with the Human Rights Tribunal expressing his concerns of discrimination. I do not find however that the reasonable person would be comfortable with the behaviour PC Tapp demonstrated in the waiting area. The words he uttered along with the tone he used and the physical action of holding out his palm to Sgt. Martin to “shush” him is not consistent with the professional comportment the public expects from members of any police service. Beyond simply a lack of professional conduct, I am convinced a reasonable person would find the accusations PC Tapp leveled at the OPP would discredit its reputation.
17The rationale for finding the appellant guilty of insubordination is found in the following extract from the Hearing Officer’s decision.
Clearly, PC Tapp was aware Sgt. Martin and the other involved officers held a rank higher than his own. It is my position that if a member of the public heard the loud comments uttered by PC Tapp to Sgt. Martin (in his uniform), and PC Tapp’s demeanor at the time, they would find his behaviour to be insubordinate.
One of the reasons there is a proper forum to hear allegations of discrimination in the workplace, is so that they can be assessed and dealt with in a professional manner. PC Tapp was not accused of misconduct when he proceeded with his Human Rights complaint in the appropriate fashion; in fact I would suggest the OPP would support any employee who feels it fitting to do so. It was his behaviour in the foyer of the Human Rights Tribunal on March 2, 2010 which gave rise to the code of conduct charges.
18A key issue before the Hearing Officer was whether the appellant could be found guilty of insubordination for comments made while he was admittedly off-duty. Neither the prosecution nor the defence could find any case law to assist the Hearing Officer who concluded that the appellant’s status as being off-duty was not a bar to a finding of insubordination.
Issues
19The appellant submitted the following two broadly worded issues.
I. Did the Hearing Officer misapprehend, misapply the evidence, and incorrectly apply the law as it relates to discreditable conduct?
II. Did the Hearing Officer make an error of law in his interpretation and application of insubordination to the facts and circumstances of this case?
III. Did the Hearing Officer err in his duty to correctly interpret and apply human rights law in the case at bar.
20The respondent raised similar issues to be determined rewording the third issue slightly submitting: Was the Hearing Officer required to apply “human rights” case law to the facts of this case and if so, did he fail to do so properly?
Analysis
21The standards of review applied by the Commission to a decision of a Hearing Officer are 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 that 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.
22In 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 generally owed considerable deference by the Commission: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (ON SCDC).
I. Did the Hearing Officer misapprehend, misapply the evidence and incorrectly apply the law as it relates to discreditable conduct?
23In our view, the Hearing Officer correctly stated the law as to discreditable conduct. Two decisions cited by the respondent support this conclusion. In Constable W.D. Silverman v. Ontario Provincial Police, 1997 CanLII 22046 (ON CPC) the Commission wrote:
…the jurisdiction of the Police Services Act is not limited to on-duty activities and any officer whose activities off-duty 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.
24In the case of Susan Mancini and Constable Martin Courage of the Niagara Regional Police Service, 2004 CanLII 76810 (ON CPC) the Commission wrote:
The concept of discreditable conduct covers a wide range of potential behaviours. The test to be applied is primarily an objective one. The conduct in question must be measured against the reasonable expectation of the community.
It is not necessary to establish actual discredit.
25The appellant cited the decision in Gallant v. Ontario Provincial Police, 2017 ONCPC 16 where the Commission wrote:
The appellant accepts that the Hearing Officer correctly stated the test for discreditable conduct. The Hearing Officer wrote “The test for discreditable conduct is primarily an objective one and can be measured in asking this question: Would a reasonable person in the community, dispassionate and fully apprised of the circumstances of the case perceive the statements as discreditable?”
26In our view, the Hearing Officer who referred both to Silverman and Mancini correctly stated the law relating to discreditable conduct. The appellant submitted, however, that he misinterpreted the law and the evidence as it applied to this charge.
27The principle arguments of the appellant on this last point may be summarized as follows.
Although credibility was not in issue, the Hearing Officer did not accept the appellant’s evidence that his health impacted his ability to control the volume of his voice.
The Hearing Officer imposed a double standard on the appellant by requiring that he conduct himself professionally while not so requiring Sgts. Martin, Smith or Brown.
The Hearing Officer lacked an understanding of the dynamics of racism and microaggression and failed to appreciate the context of the appellant complaining of racism and then being approached by those who were respondents in his human rights application.
While Sgt. Smith chose not to deal with the appellant’s comments on the day of the hearing, the respondent overreacted by instituting formal discipline.
28The Hearing Officer, at page 13 of his decision, noted that the appellant’s assertion that he could not control his voice due to health reasons was not supported by any medical evidence so he did not consider that to be a reasonable explanation for the tone of his voice on March 2^nd^. The Hearing Officer in referring to the evidence of all of the witnesses wrote: “A credibility assessment of their testimony is not required as their evidence went virtually [emphasis added] unchallenged.” Sgt. Smith testified that he had never heard the appellant raise his voice to the level he did on March 2^nd^ while acknowledging that he did commonly elevate his voice. Even if the Hearing Officer erred by commenting on the lack of medical evidence, there was other evidence to deal with the tone of the appellant’s voice in making the accusations of racism.
29The heart of the appellant’s position before us was that the Hearing Officer displayed a complete lack of understanding of the racial undertones and dynamics in the incident of March 2^nd^. The appellant submitted that he was, in effect, being accosted by the three sergeants under the guise of exchanging pleasantries, while they were respondents who were accused by him or being racists in the HRTO hearing. Accordingly, he submitted that his reaction to them was in response to their microaggression.
30The difficulty with that argument is that no expert evidence was presented by the appellant in support. One of the authorities relied on by the appellant is Naraine v. Ford Motor Co., [1996] O.H.R.B.I.D. No. 23. Mr. Naraine’s employment was terminated for verbal threats and physical contact with another employee. Expert evidence was called by the Human Rights Commission about the nature of racism, its patterns and manifestations in the workplace. One of those expert witnesses noted the following quotation from an article: “Blacks have a certain amount of expertise about racism through extensive experience with Whites. The latter, conversely, are often hardly aware of the racism in their own attitudes and behaviour.”
31The adjudicator in Naraine upheld the complaint writing “...where racial and ethnic conflict contribute to the altercation which results in a discharge, the discharge is unlawful. The real reason for the termination is not the altercation, but the underlying factors of racial discrimination and harassment.”
32It is understandable why expert evidence was not called in this matter, but without it, the Hearing Officer could not fairly deal with the appellant’s arguments on how the alleged microaggressions of the three sergeants may have factored into his comments and actions. The appellant did refer the Hearing Officer to an article in a psychology text titled Racial Microaggression in Everyday Life: Implications for Clinical Practice. The Hearing Officer found that the reactions of the appellant to the three sergeants were unprovoked, implicitly rejecting the argument of microaggression. Based on the evidence before him, we are not satisfied that the Hearing Officer erred in his consideration of the concept of microaggressions as an excuse or explanation for the appellant’s conduct.
33The Hearing Officer determined that “If the public heard PC Tapp’s comments and the manner in which they were made, they would reasonably believe his behaviour was discreditable.” In our view, his decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, thereby meeting the definition of reasonableness
II. Did the Hearing Officer make an error of law in his interpretation and application of insubordination to the facts and circumstances of the case?
34The parties before the Hearing Officer indicated that they were not aware of any case law where an officer was found guilty of insubordination for off-duty conduct. The appellant submitted that the PSA does not “provide authority for a police supervisor to order or direct an off-duty officer in relation to his or her off-duty conduct or behaviour upon which a failure to comply would result in a charge of insubordination.” There have in fact been cases where an officer was found guilty of insubordination for disobeying an order while off-duty. In Alden v. Ottawa Police Service, 2013 ONCPC 13 the officer was found guilty of insubordination for an off-duty traffic stop which was prohibited by a policy, which has the same effect as an order.
35However in this matter, the appellant was found guilty of insubordination under section 2(1)(b)(i) of the Code in that he was insubordinate by word, act or demeanor with Sgt. Martin. Section 80(2) of the PSA has been interpreted to deal with off-duty conduct and reads as follows:
A police officer shall not be found guilty of misconduct under subsection (1) if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force [emphasis added].
36On a plain reading of section 80(2) and section 2(1)(b)(i) of the Code, we agree with the respondent that they do not preclude a finding of insubordination for off-duty conduct. Conduct amounting to insubordination is not restricted to conduct occurring only during working hours.
37The appellant framed the issue in terms of how would the reasonable person view his comments. The Hearing Officer wrote “It is my position that if a member of the public heard the loud comments uttered by PC Tapp to Sgt. Martin (in his uniform) and PC Tapp’s demeanor at the time, they would find his behaviour insubordinate.” In our view, this was a reasonable conclusion based on the record.
38Insubordination by “word, act or demeanor” connotes an element of disrespect. In our view, the Hearing Officer’s conclusion was reasonable based on the record. We see no reason why insubordination, under section 2(1)(b)(i) should be limited to on-duty words, acts or demeanor. The incident between the appellant and Sgt. Martin occurred in an area open to the public Sgt. Martin was a superior officer. He remained a superior officer the next day. In our view, the appellant cannot be insulated from a charge of insubordination because his the incident occurred off-duty.
III. Was the Hearing Officer required to apply human rights case law to the facts of this case and if so, did he fail to do so properly?
39The appellant submitted that the Hearing Officer erred in his duty to correctly interpret and apply human rights law citing Hall v. Ottawa Police Service (2008) 2008 CanLII 65766 (ON SCDC), 93 O.R. (3d) 675 (Div. ct.). We disagree that this decision is applicable to this matter. In Hall, the officer pleaded guilty to eight charges under the Code, all relating to his acquisition and use of cocaine. The Hearing Officer ordered his dismissal from the service, which decision was confirmed first by the Commission then by the Divisional Court.
40The officer’s position in Divisional court was that his addiction was a disability which required accommodation from the service in accordance with section 47(1) of the PSA. In our view, that section does not apply to this matter as it was not suggested that the appellant had a mental or physical disability that rendered him incapable of performing his essential duties as an officer.
41Finally, the appellant submitted that these matters should have been dealt with as performance issues rather than through the formal discipline process. Whatever merit there may be to that submission, our role is to review the decision of the Hearing Officer and not otherwise dictate management rights.
ORDER
42Pursuant to section 87(8) of the PSA the Commission confirms the findings of guilt for discreditable conduct and insubordination and the penalties imposed.
Released: November 28, 2018
__________________________
D. Stephen Jovanovic
__________________________
Theodore Crljenica
__________________________
Maureen Helt