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. C.J. (Clarence) Pierce Appellant
and
Ontario Provincial Police Respondent
DECISION
Panel: D. Stephen Jovanovic, Associate Chair Winston Tinglin, Member Marisa Victor, Member
Appearances: James Girvin, counsel for the appellant Brian G. Whitehead, counsel for the respondent
Place and date of hearing:
Toronto, Ontario July 25, 2017
Introduction
1Cst. Pierce, the appellant, at a hearing before Superintendent Walton (the Hearing Officer), pleaded “not guilty to that extent” to a charge of Discreditable Conduct contrary to section 2(1)(a)(xi) of the Code of Conduct under the Police Services Act (the PSA).
2After that qualified plea of guilty, the Hearing Officer proceeded to hear evidence to satisfy himself that the facts the appellant was prepared to admit to, did provide clear and convincing evidence sufficient to allow a finding of guilt.
3The edited particulars in the Notice of Hearing alleged, in part, that:
On December 13, 2013 while on duty at the Rainy River District Detachment, without proper authorization, PC Pierce transported his spouse and son in an OPP vehicle, from Rainy River District to the Thunder Bay Airport.
PC Pierce was repeatedly less than forthcoming about the matter when questioned by Det. Sgt. Mitchell, Staff Sgt. Gobeil, Superintendent Van Straalen, Sgt. Major McCallum, Inspector Shouldice and Det. Sgt. Larry Lamme.
PC Pierce involved a member of the public, J.L.H., in the incident by having her state that she drove his spouse and son to Thunder Bay on December 13, 2013.
PC Pierce knew or ought to have reasonably known that his repeated lack of truthfulness and involvement of a member of the public to support his version of events is extremely unprofessional and discreditable.
4The Hearing Officer summarized the facts admitted to by the appellant as the following:
On December 13, 2013 while on duty and without proper authorization, PC Pierce transported his spouse and son in an OPP vehicle to Thunder Bay Airport. PC Pierce was repeatedly less than forthcoming about the matter when questioned by OPP supervisors of multiple ranks.
5After hearing the parties’ submissions, the Hearing Officer imposed a penalty of the forfeiture of 80 hours pursuant to section 85(1)(f) of the PSA. The appellant now requests an order from the Commission varying the penalty to a reprimand or a forfeiture of up to 50 hours.
Disposition
6For the reasons that follow, the penalty imposed by the Hearing Officer is varied to the forfeiture of 60 hours.
Background
7On November 28, 2013 a flight was booked for the appellant’s wife and son to fly from Thunder Bay to Nova Scotia on December 13, 2013. The appellant initially testified that he did not book the flight and was not aware of its departure time, as late as the night before the departure. He also testified at another point that “we booked” the flight. In an internal complaint that he filed, he wrote that he booked the flight.
8On December 6, 2013 the appellant scheduled a meeting with Det. Sgt. McCallum in Thunder Bay for the same day as his wife’s flight. He testified that he did so in order to be able to drive his wife and son to the Thunder Bay Airport for their flight. He testified that it was his intention to obtain permission to transport them in his cruiser the morning of the 13th.
9According to the appellant, these plans changed on December 12, 2013. On that evening a friend of the appellant’s wife came to their house and offered to drive her and his son to the airport, an offer which they accepted. The appellant testified that he also made arrangements to meet the three of them at the Thunder Bay Athletic Club the following morning and that he would drive his wife and son from there to the airport and then attend his meeting. The appellant maintained throughout the hearing this was what in fact happened on the 13th.
10Shortly after December 13, Staff Sgt. Gobeil’s wife told him that she saw J.L.H. in Fort Frances on the 13th at about 10:30 a.m. which would have been 11:30 a.m. Thunder Bay time. Questions then arose as to how J.L.H. could have driven the appellant’s wife and son to Thunder Bay, a trip that would take about four hours, in time to make the 1:00 p.m. flight.
11On December 16 or 17 the appellant was asked by Det. Sgt. Mitchell how his wife and son got to Thunder Bay on the 13th. The appellant told him that they were driven there by J.L.H. At the hearing, he testified about this conversation, in part, as follows:
If I was supposed to tell him at that particular point, that no, I didn’t drive her, but I drove her to the Thunder Bay airport, I apologize, I didn’t say that.
12Later the same day, the appellant was asked the same question by Staff Sgt. Gobeil and gave the same answer as he did to Det. Sgt. Mitchell. He explained his response at the hearing as follows:
I apologize if I wasn’t forthcoming at that point; it was not my thought process at the time. They asked me specifically how she got to Thunder Bay and I answered specifically. If I was supposed to volunteer that information to senior command then I apologize.
13The appellant also testified that he was not more forthcoming as he believed he was being targeted by management that was conducting a “witch-hunt”. He told both Staff Sgt. Gobeil and Det. Sgt. Lamme that his wife’s flight was for 3:00 p.m.
14The prosecution called as a witness Ted Meighen an employee of Porter Airlines. His evidence established that the appellant’s wife and son checked in for their flight at 12:17 p.m. and it left at 1:46 p.m.
15Sgt. Amy Ramsay, a senior policy development officer with the respondent was also a prosecution witness. She testified about OPP orders 6.10 and 6.16.4. The first order related to an officer’s responsibility to maintain professional ethics, and serve with honesty and integrity in a manner that places public interest above personal interests. The second order dealt with the requirement that officers obtain approval from a detachment commander to transport individuals in their cruisers during regular patrol duties.
16The Hearing Officer concluded that although the evidence did not establish misconduct on the part of the appellant in accordance with the allegations in the Notice of Hearing, the evidence was nevertheless sufficient to support a conviction for Discreditable Conduct. That conclusion is not challenged on appeal.
17The appellant brought two motions before the Hearing Officer prior to making his qualified plea of guilty. Both motions were dismissed. One motion, which occupied three days of evidence and argument, was for an order staying the prosecution based on the actions of the respondent in obtaining personal information about his wife i.e. the fact that she was on the Porter flight. The second motion dealt with the appellant’s request for additional disclosure.
18J.L.H. had been summonsed by the prosecution to testify but was not called as a witness.
Issues
19The appellant in his factum submitted that the Hearing Officer made the following errors:
I) Incorrectly assessed the evidence on a clear and convincing standard;
II) Gave insufficient or no weight to mitigating factors;
III) Wrongly conflated mitigating factors with aggravating factors;
IV) Imposed a penalty that was inconsistent with established cases and;
V) Imposed a penalty that was unduly harsh in the circumstances.
20During oral argument, the appellant stressed a number of different points. He submitted that the Hearing Officer erred in his imposition of the penalty by not taking into account the Charter violations of the respondent in obtaining personal information about his wife; he failed to properly consider the guilty plea; he failed to consider the “poisoned” work environment the appellant faced; he failed to properly consider the appellant’s work history with no prior discipline and; he made adverse findings of credibility against the appellant all of which gave rise to an “incorrect” penalty.
21As previously stated by the Commission, the ultimate issue to be decided in most cases dealing with appeals from penalties imposed by a Hearing Officer, is whether the penalty imposed was reasonable in all of the circumstances of the matter?
Analysis
22The parties agree on the role of the Commission in its review of a penalty decision as set out in Karklins v. Toronto (City) Police Service, 2010 ONSC 747 (Div. Ct.) and Wong and Toronto Police Service, 2015 ONCPC 15. That role is as follows:
The Commission’s 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 where there is a clear error in principle or relevant material facts are not considered. This is not something done lightly.
23In Kobayashi et al and the Waterloo Regional Police Service, the Commission wrote the following:
…the Commission is not permitted to reweigh the disposition factors to come to a conclusion on penalty 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 the first instance.
24In our view, the Hearing Officer did make an error in principle in arriving at the penalty that he imposed
25Turning to the reasons of the Hearing Officer, he was quite critical of the testimony of the appellant. So much so, that he flatly rejected the appellant’s unwavering position that although he arranged his meeting in Thunder Bay, which meeting he acknowledged could have been handled by way of a teleconference, in order to drive his wife and son to the Thunder Bay Airport, he instead met them at the Thunder Bay Athletic Club and drove them only the last few kilometres. The Hearing Officer wrote the following at various points in his decision:
However, I do not accept that he did not drive his family from his residence in Fort Frances directly to the Thunder Bay Airport.
The fact that PC Pierce drove his family in essence three hours versus three minutes, does not affect that particular of the NoH; all that matters is that he transported his spouse and son in an OPP vehicle to the Thunder Bay Airport without permission and that he was then, less than forthcoming. However, the fact that I take issue with PC Pierce’s credibility becomes an aggravating factor in the applicable penalty principles. Appropriate weight must then be assessed.
It is one thing to be less than forthcoming in a meeting with a superior officer but quite another to attempt to mislead this Tribunal. This is behaviour that goes far beyond mildly upsetting.
His situation was then exacerbated by his inability to recognize the absurdity of his fictitious story and expecting OPP management and this Tribunal to find it truthful.
26For reasons that were not satisfactorily explained, at least to us, the respondent chose not to call J.L.H. as a witness. It appears that the prosecution was content to accept for the purposes of the guilty plea that the appellant only drove his wife and son from the Thunder Bay Athletic Club to the airport and not all the way from Fort Frances to the airport.
27Having accepted the admission of guilt on that basis, it was not open to the Hearing Officer to make the broader finding that he did. If he was not prepared to accept the appellant’s evidence, he could have rejected the admission of guilt and required that the respondent proceed to call its evidence. Once he accepted it and considered the respondent’s position that it could not call evidence to contest it, the Hearing Officer was limited to making a finding that the appellant had only transported his family the shorter distance from the Athletic Club to the airport.
28The Hearing Officer further compounded his error by then using his finding that the appellant had in fact driven the entire distance from Rainy River to the Thunder Bay Airport to brand the appellant as being dishonest and considered this as an aggravating factor in arriving at an appropriate penalty. In our view, this was an overriding error in principle that would render a penalty unreasonable: See The Law Society of Upper Canada v. Abbott, 2017 ONCA 525 at para. 52.
29The Hearing Officer considered the public interest and found that the public had the right to expect police officers to “do the right thing” and be completely forthcoming at the first opportunity. He found this to be an aggravating factor. It was reasonable for him to so find.
30The Hearing Officer wrote about the nature and seriousness of the misconduct. He found that the most aggravating factor was the appellant’s concocting of a story in an attempt to justify his behaviour. This was another example of the Hearing Officer using the finding he was not asked to make as an aggravating factor.
31In considering the appellant’s recognition of the seriousness of his misconduct, the Hearing Officer held that the credit the appellant should receive for pleading guilty was to be reduced for two reasons. First, because the plea came after two motions were heard, which included the testimony of several witnesses. Second, because the pleas were only a partial admission to the particulars of the allegations. If the prosecution wanted to proceed to prove the full particulars of the NoH, it could have tried to do so. Having chosen not to try and do so, this could hardly then be used against the appellant by the Hearing Officer. We do agree, however, that the timing of the guilty plea is properly a factor that can be taken into account: See Kobayashi, above.
32The Hearing officer congratulated the appellant on the “splendid” start to his career and considered his employment history to be a significant mitigating factor.
33The Hearing Officer wrote the following in considering the appellant’s ability to reform or rehabilitate:
My concerns aside, PC Pierce did ultimately enter a guilty plea and some substance of an apology. That is a good start and show he has the ability to move forward in a positive manner……Based on the letters of support and his exemplary employment history, I am confident PC Pierce has the foundation to learn from this experience and grow from it.
This was accordingly viewed as a mitigating factor, reasonably in our view.
34In considering the need for deterrence, he wrote that general deterrence was a necessity so that the membership would appreciate the need to be forthcoming at the earliest opportunity. He also wrote that the sanction imposed “must consider specific deterrence an aggravating factor.” There is no doubt that the appellant was repeatedly less than forthcoming with his superior officers on several occasions. No one can dispute that trust among officers is a necessity. The appellant’s actions can be seen as violating that trust and the need for deterrence should be obvious.
35The Hearing Officer found that the appellant’s conduct would damage the reputation of the respondent and that this would be an aggravating factor. The need for integrity by police officers cannot be overstated. It should be axiomatic. In our view, it was reasonable for the Hearing officer to find the failure of the appellant to be forthright with his superior officers was capable of causing damage to the reputation of the respondent.
36Finally, the Hearing Officer reviewed a number of discipline cases presented by the parties but found only one, Hominisky, to be somewhat helpful. He reviewed these cases in an attempt to honour the need for consistency of penalties in cases of similar misconduct. No additional cases were submitted to us for our consideration.
37In Hominisky, the officer was convicted of misconduct, after pleading guilty, for damaging a police cruiser, failing to report the damage and then trying to cover it up by painting over the damage. He also falsified a report but admitted to his actions when questioned by Professional Standards. Based upon a joint submission, a penalty of the forfeiture of 90 hours was imposed.
38Imposing a penalty, like sentencing in a criminal matter, is more of an art than a science. The spectrum of penalties for similar offences is often so extreme and the range so wide that consistency of penalty sometimes seems like an impossible objective to achieve.
39In the appellant’s case, the conviction was based on his not obtaining permission, which apparently would have been granted if asked for, to transport his wife and son to the airport, and then not being forthcoming when asked about the trip. The conviction was not based on his driving his family from Fort Frances as had been originally alleged in the NoH and as the Hearing Officer had concluded. The original penalty of 80 hours appears to have been premised on the finding that the appellant did drive his family the entire four hour trip but denied doing so throughout the investigation and the hearing. Accordingly, it would be reasonable to reduce that penalty somewhat.
40In our view, taking into account all of the factors applicable to determining an appropriate penalty, the forfeiture of 60 hours would be reasonable.
ORDER
41Pursuant to section 87(8)(a) of the Police Services Act, the Commission varies the penalty of the forfeiture of 80 hours to the forfeiture of 60 hours.
Released: January 24, 2018
D. Stephen Jovanovic
Winston Tinglin
Marisa Victor