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: Orser v. Ontario Provincial Police, 2018 ONCPC 7

Date: March 16, 2018

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

Between:

Constable James Orser Appellant

and

Ontario Provincial Police Respondent

DECISION

Panel: Katie Osborne, Vice-Chair Karen Restoule, Member Marisa Victor, Vice-Chair

Appearances: Harry Black, Q.C., counsel for the appellant Chris Diana, counsel for the respondent

Place and date of hearing:

Toronto, Ontario September 8, 2017

oVERVIEW

1The appellant, Constable James Orser, is a member of the Ontario Provincial Police (the “OPP”). He pleaded guilty to misconduct under the Police Services Act, R.S.O. 1990, c. P.15 for recording a sex video of his former girlfriend without her consent and then showing that video to fellow officers following their break-up. He now appeals a penalty decision in which the Hearing Officer, OPP Superintendent Greg Walton, ordered him to resign within seven days or be dismissed from the force.

2The events that led to the misconduct finding and penalty were not in dispute. The appellant dated “A.B.” for almost one and a half years. In the course of her employment, A.B. had regular contact with members of the OPP, including members of the detachment where the appellant worked.

3At some point during their relationship, the appellant used his cell phone to film the two of them having sexual intercourse. When A.B. realized that the appellant was recording them, she covered her face, told him to turn off his phone and stop recording. She also demanded that he delete the video. The appellant told A.B. that he had done so, but instead continued recording and retained the video of their sexual encounter. The video was about 15 seconds in length. It captured the couple engaged in sexual intercourse and showed parts of their genitalia.

4After the appellant and A.B. broke up, the appellant showed the sex video to fellow officers on two occasions. The appellant first showed the video clip to a colleague while traveling on a bus to Huntsville for policing duties relating to the G8 Summit in June 2010. He was on duty at the time. The appellant later showed the clip to a group of officers while they were off-duty and socializing during the G8 Summit. One of the officers who was shown the video recognized A.B.

5A.B. later learned that the video had been shown to members of the OPP. She did not consent to the initial recording, nor its distribution. She was traumatized and embarrassed. The events left her feeling shame, distrust and fear.

6The appellant was charged with discreditable conduct under the Police Services Act. He pleaded guilty to a single count of conduct likely to bring discredit on the reputation of the OPP and was found guilty of misconduct based on the agreed facts. Following a penalty hearing, the Hearing Officer ordered the appellant to resign from the OPP within seven days or be dismissed.

7In his appeal to the Commission, the appellant argued that the Hearing Officer’s penalty decision is unreasonable. The appellant alleged various errors of principle and law. At the hearing, the appellant focused primarily on errors relating to the Hearing Officer’s approach to the seriousness of the misconduct, his treatment of the appellant’s diagnosis of post-traumatic stress disorder (“PTSD”), and consistency with other penalty decisions.

8The OPP argued that the Hearing Officer’s decision is reasonable and asked the Commission to dismiss the appeal and confirm the penalty imposed by the Hearing Officer.

Disposition

9We find that the decision of the Hearing Officer is reasonable, and that he committed no error in principle. We confirm the Hearing Officer’s decision. The appellant is ordered to resign from the OPP within seven days of the date of this decision or face dismissal.

THE PENALTY HEARING AND DECISION

10On April 11, 2016, the appellant appeared before the Hearing Officer. He pleaded guilty to discreditable conduct under s. 2(1)(a)(xi) of the Code of Conduct contained in the Schedule to Ontario Regulation 268/10 under the Police Services Act. A hearing with respect to penalty only was held on April 11, May 4, May 24, and June 21, 2016. The Hearing Officer released a lengthy decision on September 29, 2016.

11In his reasons for decision, the Hearing Officer summarized the factual background and the evidence before him. He accepted that the appellant suffered from PTSD, and went on to examine whether there was a nexus or connection between PTSD and the misconduct at issue. He ultimately determined that the appellant’s PTSD was not linked to his misconduct. The Hearing Officer then identified and engaged in a detailed analysis of relevant sentencing principles.

12The Hearing Officer recognized that the penalty of dismissal must be reserved for the most egregious offences committed by a police officer. However, after considering a number of penalty factors, he found that the appellant’s misconduct called for dismissal. In reaching his decision the Hearing Officer wrote:

The seriousness of PC Orser’s misconduct is so significant and egregious I find it provides grounds for dismissal. I do not find PC Orser is a viable candidate for rehabilitation based on the aggravating factors which significantly outweigh any mitigation. I have determined PC Orser no longer has any further usefulness to the OPP or the community in general; the damage to the reputation of the OPP would be too significant if PC Orser were to remain employed by the OPP. PC Orser is no longer fit to remain an employee of the OPP.

13The Hearing Officer ordered the appellant to resign within seven days or face dismissal from employment with the OPP.

ANALYSIS

14Under the Police Services Act, both a finding of guilt and the issue of penalty can be appealed by the police officer to the Commission. The appellant appealed the penalty decision only.

15It is well-settled that the standard of review in a penalty appeal is reasonableness. The Commission owes deference to the Hearing Officer’s decision.

16In the present case the Commission must first determine whether the Hearing Officer’s decision is reasonable on its face. This requires the Commission to determine whether the penalty falls within the range of possible, acceptable outcomes. If the decision is within the range of reasonable outcomes, it will be reasonable unless the Hearing Officer committed an overriding error in principle that affected the result.

Issue 1: Is the Hearing Officer’s decision reasonable?

17The Supreme Court of Canada described the test for reasonableness in Dunsmuir v New Brunswick:¹

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

18Reasons need to be sufficient to allow parties to understand why the decision was made, and to enable effective review of the decision. However, reasons must be read as a whole and in context. They should also demonstrate that the decision-maker dealt with the issues necessary to decide the matter.²

19The Hearing Officer clearly set out the events that gave rise to the disciplinary proceedings. These matters were the subject of an agreed statement of facts. The Hearing Officer began his analysis by considering the appellant’s PTSD diagnosis, its role in or connection to the misconduct, and the weight to accord to the disorder as a mitigating circumstance. The Hearing Officer then went on to consider many of the disciplinary factors established in Krug v Ottawa Police Service,³ including:

• Seriousness of the misconduct
• Recognition of the seriousness of the misconduct
• Employment history
• Public interest
• Ability to reform or rehabilitate
• Need for deterrence
• Damage to the reputation of the police force
• Disability and other relevant personal circumstances
• Consistency of penalty
• Effect on the police officer and the police officer’s family

20The Hearing Officer comprehensively examined the evidence, considered the relevant case law, and engaged in a detailed analysis of the relevant sentencing principles. In doing so, he properly considered the factual background and surrounding circumstances. He concluded that the appellant’s misconduct was so significant and egregious that it provided grounds for dismissal.

21The Hearing Officer acknowledged the presence of some mitigating factors, but concluded that the aggravating factors outweighed any mitigation. Aggravating considerations included:

• The seriousness of the appellant’s misconduct
• The significance of the breach of trust involved
• The character issues raised by a previous misconduct finding, together with the current misconduct
• Concerns about the appellant’s ability to reform
• Damage to the reputation of the police force if the appellant were to return to work

22The Hearing Officer had serious concerns about the appellant’s ability to reform, given the nature of the misconduct at issue, as well as the actions that led to a previous finding of misconduct. That earlier incident involved an inappropriate, on-duty interaction with a young woman that had what the Hearing Officer described as “sexual overtones.” The Hearing Officer concluded that the appellant was not a viable candidate for rehabilitation.

23The Hearing Officer was deeply troubled by the breach of trust, and the lack of ethics, integrity, professionalism and compassion demonstrated by the appellant. As a result of these concerns, he determined the appellant no longer had any usefulness to the OPP or the community in general, and that the damage to the reputation of the OPP would be too significant if the appellant were to remain employed by the OPP. His findings are reasonable and supported by the record.

24In this case, the Hearing Officer’s reasons pass the test for reasonableness. His reasons contain a line of analysis that is transparent and intelligible, and the decision falls within a range of possible, acceptable outcomes.

Issue 2: Did the Hearing Officer commit an overriding error in principle that affected the result?

25The appellant argued that the Hearing Officer made a number of errors in reaching his decision. We find most of these arguments to be without merit. While we will touch on some of the other issues raised by the appellant in the course of our analysis, this case largely turns on the Hearing Officer’s consideration of three issues:

• Seriousness of the misconduct
• The PTSD issue
• Consistency of penalty

We will deal with each of these issues in turn.

(a) Seriousness of the misconduct

26The appellant submitted that the Hearing Officer made multiple errors in his approach to the seriousness of the misconduct. Specifically, he argued that the Hearing Officer:

• grossly exaggerated and overstated the seriousness of the appellant’s misconduct
• mistakenly described the conduct as having been committed over an extended period of time
• erred when he stated that the nature and seriousness of the misconduct is the most significant factor in determining penalty, and that grounds for dismissal can be based on this factor alone

27The respondent submitted that seriousness of the misconduct is one of the primary sentencing considerations, along with the ability to reform or rehabilitate and the damage to the reputation of the police service should the officer remain on the force. The respondent took the position that where the conduct is egregious, the seriousness of the misconduct alone can lead to the imposition of the most severe penalties. The respondent took issue with the appellant’s attempt to minimize the seriousness of the misconduct and to describe it as an isolated incident.

28The Hearing Officer reviewed the particulars of the appellant’s misconduct in detail at the outset of his decision. He pulled no punches in his reasons, describing the appellant’s conduct variously as appalling, disturbing, shameful, incomprehensible and reprehensible. He went on to outline why he viewed the appellant’s conduct so harshly.

29It was open to the Hearing Officer on the facts to view the misconduct as egregious, to see it as an extreme violation of the trust and privacy rights of A.B., and to conclude that the conduct demonstrated a lack of ethics, integrity, professionalism and compassion. The Hearing Officer also felt the facts in issue would be considered disturbing if they were committed by any person, but they were more appalling given they were committed by a serving police officer. We agree. The Hearing Officer reasonably concluded on the evidence before him that the seriousness of the conduct was a significant aggravating factor.

30We reject outright the attempt by appellant’s counsel to minimize the seriousness of the appellant’s conduct on the basis that the video was short and of poor quality. The video was long enough – and clear enough – for the viewing officers to recognize A.B., to see her genitals, and to observe the appellant and A.B. having intercourse. The length and quality of the video do not minimize the trauma and harm experienced by the victim. Additionally, the length and quality of the video simply do not bear on the seriousness of the underlying decision by the appellant to record and share an intimate sexual video without A.B.’s consent. The appellant’s conduct represents an extraordinary betrayal and violation of trust at the hands of an intimate partner. The length and quality of the video do not diminish that plain fact.

31We also reject the appellant’s argument that the Hearing Officer erred in his appreciation of the evidence by describing the conduct in question as taking place over an extended period of time, when there was no evidence that the conduct was any longer than a day. We disagree.

32While the Hearing Officer did not know with precision the number of days that passed from the recording of the video to the two incidents when the appellant showed the video to colleagues, he properly concluded that the misconduct did not involve an isolated act or error in judgment. The Hearing Officer said the following about the ongoing nature of the misconduct, and how it reflected on the appellant’s character:

It was PC Orser’s continuous choice to keep a shocking and disturbing video, recorded without A.B.’s consent or knowledge. Only he knows why he made the recording, why he kept it and why he showed it on two occasions. The fact that this conduct extended over such a period of time makes PC Orser’s behaviour all the more reprehensible. At some point during the time PC Orser was in possession of the recording, before showing it to his peers, he must have contemplated his actions. He must have considered the difference between right and wrong. If just once over that timeframe PC Orser was guided by what could be considered an average conscience, reasonable integrity, ethics or morality he simply would have deleted the recording. It causes me to question if these characteristics are non-existent. At the very least, they are not up to the level the public or the OPP would expect of a police officer.

33In our view, it was appropriate for the nature, context and timeline of the events to bear on the Hearing Officer’s assessment of the seriousness of the misconduct, as well as his assessment of the appellant’s ability to rehabilitate, his usefulness to the force and the potential damage to the police service if he were to remain on the force.

34Contrary to the appellant’s suggestion, case law confirms that the seriousness of the offence alone can justify dismissal.⁴ In Krug,⁵ the Commission said the following about the seriousness of the offence and the weight to be accorded to it and other factors:

There is no requirement that any one factor be given more weight than another. The seriousness of the offence alone may justify dismissal. Aggravating factors can serve to diminish the weight of any mitigating factors.

35We also note that while the seriousness of the appellant’s misconduct was a critical factor in the Hearing Officer’s decision, he did not fail to consider other relevant sentencing factors in his reasons, including the appellant’s PTSD diagnosis, employment history, potential for rehabilitation, damage to the reputation of the OPP, and usefulness to the force. It is clear that these and other penalty considerations also factored into the Hearing Officer’s decision, and that he did not reach his decision to dismiss on the basis of the seriousness of the misconduct alone.

36Dismissal of an officer is the most serious punishment that can be imposed in a disciplinary decision. Case law confirms that dismissal should be reserved for the most serious cases.⁶ The Hearing Officer explicitly acknowledged this in his reasons, and made it clear that his decision to impose the penalty of dismissal was not made lightly.

37We conclude that the Hearing Officer did not err in his approach to the seriousness of the misconduct, or in reaching any of his conclusions on that issue. It was reasonable for the Hearing Officer to find that the seriousness of the appellant’s misconduct was a substantial aggravating factor, and to give considerable weight to the nature and seriousness of the misconduct in determining the penalty in this case.

(b) The PTSD issue

38During oral submissions, counsel for the appellant focused primarily on arguments relating to PTSD. He argued that the Hearing Officer erred in dealing with the expert evidence on PTSD and erred in law by applying a causation test. We gave these issues careful attention.

39The evidence before the Hearing Officer on PTSD came from two sources: Dr. Janet McCulloch (for the appellant) and Dr. John Arrowood (for the respondent). Both witnesses were qualified at the hearing as experts in causes, symptoms, diagnosis and treatment of PTSD.

40Dr. Janet McCulloch is a psychiatrist on staff at the Canadian Forces Base in Kingston, Ontario. She has considerable experience with PTSD, including extensive work with returning soldiers and first responders. Dr. McCulloch assessed and treated the appellant. She indicated that the appellant suffered from PTSD not only at the time of the misconduct that was the subject of the hearing, but also at the time of the previous misconduct. Dr. McCulloch testified that PTSD played a significant role in the misconduct that led to the disciplinary proceedings and must be considered as a mitigating factor in sentencing. She was unequivocal in her view that PTSD was the cause for the appellant’s misconduct.

41Dr. John Arrowood is a Staff Forensic Psychologist for the Centre for Addiction and Mental Health in Toronto. He reviewed Dr. McCulloch’s report, but did not assess the appellant. Dr. Arrowood did not see the correlation between the diagnosis and the appellant’s misconduct.

42The Hearing Officer reviewed in considerable detail the evidence of Dr. McCulloch and Dr. Arrowood. While he recognized that Dr. McCulloch had the benefit of assessing the appellant, he was not persuaded by her evidence. His reasons tell us why.

43The Hearing Officer clearly set out his concerns with Dr. McCulloch’s evidence. He was troubled by the fact that Dr. McCulloch refused to accept that there was anything other than PTSD that was responsible for the appellant’s conduct. He felt that it was as if Dr. McCulloch was making the facts fit a PTSD diagnosis rather than assessing the facts on their merit. He found her to be too steadfast in her position. In contrast, the Hearing Officer found Dr. Arrowood to be straightforward and genuine when he said he could not state definitively that Dr. McCulloch’s opinion is wrong, only that she had not sufficiently established the linkage between PTSD and the misconduct.

44Like Dr. Arrowood, the Hearing Officer was not persuaded that showing the video footage had anything to do with PTSD-related hyper-vigilance, hyper-arousal or aggression, as stated by Dr. McCulloch in her evidence. After considering all of the evidence, the Hearing Officer was simply not convinced that the behaviour that led to the misconduct finding – recording and sharing a sex video without consent – was in any way related to the appellant’s PTSD diagnosis.

45The Hearing Officer accepted that the appellant suffers from PTSD. He acknowledged that PTSD among first responders is a worrisome, complex and emerging trend that is even more concerning when it is acquired as a direct result of one’s employment, as is the case with the appellant. While the Hearing Officer noted that he had considerable compassion for the appellant’s circumstances, the evidence did not persuade him that there was a connection between the disorder and the underlying misconduct.

46We owe deference to the Hearing Officer’s decision, unless an examination of the record demonstrates that his conclusions cannot reasonably be supported by the evidence.⁷ The Hearing Officer had the advantage of hearing the evidence and observing the witnesses as they testified. He carefully assessed the expert evidence on the PTSD issue. His findings were open to him on the record, and he explained why he reached the conclusions he did.

47While it is possible another decision maker might have reached different conclusions, it is not the role of the Commission to re-weigh the evidence, to second-guess the Hearing Officer’s findings, or to substitute our own opinion.⁸ An examination of the record in this case reveals a solid basis for the Hearing Officer’s findings on the PTSD issue. We owe his findings deference. We see no basis to intervene.

48We are also not persuaded by the appellant’s argument that the Hearing Officer erred in law by applying a causation test instead of determining whether the PTSD “influenced” the misconduct, the test applied by the Commission in Moraru v. Ottawa Police Service.⁹

49It is true that the Hearing Officer used the term “cause” or “causation” multiple times in his decision. The appellant submitted that this shows the Hearing Officer applied a different and higher standard. However, we note that the Hearing Officer uses a number of other words and phrases in his decision that clearly demonstrate he did not apply a strict causation test, and that he turned his mind to whether there was a link, connection, relationship or nexus between PTSD and the misconduct.

50Case law confirms that reasons must be read as a whole, and do not need to be perfect or comprehensive. It also tells us that the Commission must not focus on mistakes that do not affect the reasonableness of the decision as a whole, or be overly critical of the language used by the adjudicator.¹⁰

51While the Hearing Officer could have been more careful and precise with his language, in our view the decision should not fail on the basis of the Hearing Officer’s word selection when his reasons demonstrate he grappled with the substantive issues before him.¹¹

52The reasons make clear that the Hearing Officer took the PTSD issue seriously, and engaged in meaningful analysis of the evidence on the role that PTSD might have played in the misconduct. The Hearing Officer accepted the appellant suffered from PTSD, but was not convinced that the appellant’s misconduct was related in any way to his PTSD diagnosis. His conclusions are reasonable and supported by the record. We owe them deference. We find he did not commit an error in principle in his treatment of the PTSD issue.

(c) Consistency of penalty

53Consistency of penalty is an important dispositional factor. The Hearing Officer recognized that consistency is a “hallmark of fairness,” but noted that an appropriate penalty must be tailored to the specific circumstances of the case at hand, and address the distinguishing features.¹²

54Appellant’s counsel concedes that the appellant’s conduct is deserving of sanction, but submits that the penalty imposed should fall short of dismissal. He argues that other police disciplinary cases involved misconduct that was as or more serious than the appellant’s conduct, but did not result in dismissal.

55The respondent takes the position that the Hearing Officer did not commit any error in principle in considering penalty cases. He submits that dismissal falls within the range of appropriate penalties for the misconduct, considering all relevant sentencing factors and findings of the adjudicator.

56The Hearing Officer’s reasons show he carefully considered the principle of consistency of penalty. While comparisons are necessarily inexact due to differing circumstances, the Hearing Officer examined in some detail the cases that he found most relevant. He noted that while the officers in these cases received significant demotions, they could have been subject to dismissal. The Hearing Officer also provided a rational basis for distinguishing the appellant’s case from those involving lesser penalties, including differences in the nature and seriousness of the conduct, and the employment history of the officers.

57We also note that the presence of cases involving lesser penalties is not determinative. As the Commission has previously observed, assessments of appropriate penalties are not only fact-specific, they may shift and evolve over time.¹³ Consistency of penalty should not be applied in a way that results in penalties being frozen in time. Responses to misconduct should bear some connection to societal norms.

58Technology has opened up new avenues for bullying, shaming, humiliation and abuse. There is growing awareness of the harm caused by non-consensual recording and sharing of sexually explicit images and videos. We should all enjoy a right to privacy that assumes our most personal and intimate moments will not be shared with others without our consent.

59It was open to the Hearing Officer to impose the penalty of dismissal and he provides a sound basis for that decision in his reasons. Dismissal falls within the range of possible penalties for the misconduct.

CONCLUSIONS

60The Hearing Officer’s reasons demonstrate he had a clear grasp of the facts, considered and weighed the evidence before him, and applied the relevant penalty factors. It is not our role to second-guess the Hearing Officer or re-weigh those factors. He arrived at a result that falls within the range of reasonable outcomes.

61While the Hearing Officer’s reasons are not perfect, when read as a whole they meet the test for reasonableness. The reasons contain a line of analysis that is transparent and intelligible, and the decision falls within a range of possible acceptable outcomes that are defensible in respect of the facts and the law. The Hearing Officer made no error in principle. We see no basis to interfere with his decision.

ORDER

62Pursuant to s. 87(8)(a) of the Police Services Act, we confirm the Hearing Officer’s decision. The appellant is ordered to resign from the Ontario Provincial Police within seven days or be dismissed from the force.

Released: March 16, 2018

___________________________ Katie Osborne, Vice-Chair

____________________________ Karen Restoule, Member

____________________________ Marisa Victor, Vice-Chair

Footnotes

1. 1Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
2. 2See Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland and Labrador Nurses’ Union] at para 9.
3. 3Krug v Ottawa Police Service, 2003 CanLII 85816 (ON CPC) [Krug] at para 69, quoting from Ceyssens, Paul, Legal Aspects of Policing, loose-leaf (Saltspring Island; Earlscourt, 1994).
4. 4See Clough v Peel Regional Police Service, 2014 ONCPC 12 [Clough] at para 104.
5. 5Krug, supra note 2 at para 70.
6. 6See Favretto v Ontario Provincial Police, 2002 ONCPC 3; aff’d by Ontario (Provincial Police) v Favretto, 2004 CanLII 34173 (ON CA).
7. 7See: Toronto Police Service v Blowes-Aybar 2004 CanLII 34451 (ON SCDC) at paras 30-33; Ontario Provincial Police v Purbrick, 2013 ONSC 2276 at para 16, aff’d by Ottawa Police Services v Diafwala, 2016 ONCA 627.
8. 8See Karklins v Toronto (City) Police Service, 2010 ONSC 747.
9. 9Moraru v Ottawa Police Service 2008 ON CPC 1.
10. 10See Galassi v Hamilton Police Service, 2005 CanLII 20789 (ON SCDC) at para 19, and McPhee v Brantford Police Service, 2012 ONCPC 12 at para 90.
11. 11See Newfoundland and Labrador Nurses’ Union, supra note 2 at para 9.
12. 12See Clough, supra note 4 at para 118.
13. 13See Shorey v Belleville Police Service, 2017 CanLII 53072 (ONCPC) at para 69.