ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Division

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

Division de la sécurité, des appels en matière de permis et des normes

Citation: Cst. James Ebdon v. Durham Regional Police Service, 2020 ONCPC 5

Date: June 30, 2020

File: 17-ADJ-011

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

Between:

Cst. James Ebdon

Appellant

And

Durham Regional Police Service

Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Maureen Helt, Vice Chair John Kromkamp, Member

Appearances:

William R. MacKenzie, counsel for the appellant Alex Sinclair, counsel for the respondent

Place and date of hearing:

Toronto, Ontario November 20, 2019

INTRODUCTION

1This matter arises from the decision of Inspector Bruce Townley (the Hearing Officer) dated May 3, 2017 by which he imposed a 12-month demotion on the appellant, having earlier found him guilty of Discreditable Conduct. The particulars of the charge under s. 2(1)(a)(xi) of the Code of Conduct, O. Reg. 268/10 pursuant to the Police Services Act (the PSA) were as follows:

On the 16th and 26th of June 2015, Constable James Ebdon, badge 3315, gave testimony in R. v. Guindon et al, before Justice L. Bird of the Superior Court of Justice. Throughout his two appearances, Constable Ebdon gave inconsistent and contradictory evidence in relation to his interactions with Bradley Cox that was captured by surveillance video on the 6th of December, 2011.

2The demotion was to third class constable for six months and to second class constable for a further six months, with a return to first class constable thereafter. There is no appeal from the finding of guilt.

DISPOSITION

3For the reasons that follow, the decision of the Hearing Officer is confirmed.

OVERVIEW

4In the decision of R. v. Guindon, et al, 2015 ONSC 4028 Justice Bird dealt with an application by Harley Guindon under section 24(2) of the Charter to exclude evidence he claimed was obtained in contravention of his section 8 Charter rights. Guindon and his co-accused were on trial for a number of drug offences dating back to 2012. The appellant testified on two occasions as to an encounter he had with Bradley Cox, who may have been an associate of Guindon, at a crack house. The full details of that encounter are set out in the decision and there is no need to repeat them here, other than to say that Justice Bird found the appellant’s conduct “reprehensible” and that he showed a “staggering lack of appreciation for the seriousness of his conduct.”

5Briefly, the appellant asked Cox if he knew “Harley”, illegally searched him and made various threats. When he first testified on June 16, 2015, the appellant stated that he had not made a report of this incident which he believed occurred in November 2011. However, the Crown subsequently discovered a report of the interaction the appellant had completed on December 6, 2011. This report, according to Justice Bird, did not bear any resemblance to what a surveillance camera had recorded and was a “work of fiction”

6The appellant was subpoenaed to appear again on June 26, 2015 and then produced a report dated December 9, 2011 detailing a second encounter he had with Cox. The appellant testified that he had no interest in Guindon although Justice Bird found that it was obvious that he was attempting to gather information about Guindon, for reasons that were not apparent during the hearing of the Charter application. She also called his evidence a poor attempt to justify that which was unjustifiable. However, Justice Bird ultimately dismissed the Charter applications and it does not appear that the evidence given by the appellant played any part in that decision.

7The Hearing Officer based the finding of guilt on the Discreditable Conduct charge on four factors:

• The appellant’s December 6th report was not an accurate description of what actually occurred during his interaction with Cox.
• The appellant’s decision not to bring his notebook or other notes to the criminal trial, notwithstanding that it was made clear to him in the subpoena that he was required to do so.
• The appellant denied he had any interest in Harley Guindon even though the evidence suggested otherwise.
• The appellant’s inconsistent evidence with respect to his interaction with two other officers after his meeting with Cox.

8The Hearing Officer concluded that the appellant gave inconsistent and contradictory evidence before Justice Bird and found him guilty accordingly. The matter then proceeded to a hearing on penalty.

9One witness testified on behalf of the respondent at the penalty hearing, Supt. Kim Bulloch, whose areas of responsibilities included the Courts unit where the appellant was working at the time of the hearing. Supt. Bulloch reviewed the appellant’s personnel file and testified that he was placed on a performance improvement plan, one year after he was hired, in 2004. She made the following observations:

I’ve noted it – I read it probably in excess of three or four times where supervisors use different adjectives to describe PC Ebdon, including; inflexibility, an inability to take ownership and very quick to cause blame to others or the process or management, when concerns are being brought to his attention. So we see time and time again, that there is an inability to kind of accept ownership of what his course of action has caused, and then an inability to make sustainable change. So we see positive change when something occurs. So, there is an area of deficiency. It is brought to his attention. We see an element of positive change. We see this then regression and this inflexibility and an inability to see sustainable change and ownership, is the concerning part.

…so this document [2012 performance review] here kind of encapsulates on the paragraph given by the supervisor’s comments, that’s the theme I’m seeing. That there is performance – there is a struggle to maintain consistency on an appropriate level of performance, and there is – the officer seems not being able to accept responsibility and view what is being told to him as constructive criticism and having an open mind to it.

James has expressed the desire to perform well over the past twelve months but has struggled to maintain a consistent level of performance. James was the subject of five separate performance/misconduct inquiries in 2012. Two resulted in a finding of misconduct, two were concluded with a determination of sub-standard performance, and one was withdrawn. It is concerning to the management team that James consistently deflects responsibility for his judgment or performance and shifts culpability to the public, police management, or platoon morale.

10The Hearing Officer considered the evidence of Supt. Bulloch and concluded that the appellant’s employment records included questionable performance reviews and a consistent theme of him not accepting responsibility for his actions.

11The Hearing Officer set out what he considered to be the mitigating and aggravating factors to be taken into account in arriving at an appropriate penalty.

Mitigating:

• The appellant had only one formal reprimand on his discipline record.
• He had positive work performance reviews and several outstanding commendations and letters of recognition.
• He had been a police officer for 13 years.
• He had demonstrated elements of positive change in his performance.

Aggravating:

• The appellant had not accepted responsibility for his misconduct, nor did he apologize to the respondent.
• He had not taken any documented steps to improve his level of professionalism and reputation within the service.
• Being an officer for 13 years and 11 at the time of the misconduct, he ought to have known the consequences for his lack of providing consistent and non-contradictory evidence in a court of law.

12The Hearing Officer’s ultimate conclusion was as follows:

What Cst. Ebdon was found guilty of strikes at the heart of the justice system. I view his misconduct at the high end of the spectrum and serious enough to warrant a severe penalty. In today’s reality, the public expects a much higher level of professionalism from Police Officers in order to keep their trust. A clear message must be sent both to Cst. Ebdon and all police officers that these actions compromise the integrity of our profession and put the confidence of the public in jeopardy.

ISSUES

13Before dealing with the issues raised by the appellant it would be useful to restate the role of the Commission in appeals from a penalty imposed by a Hearing Officer. In Karklins v.Toronto (City) Police Service, 2010 ONSC 747, the Divisional Court adopted the following description of the Commission’s role:

The role of the Commission on a penalty is well established. Our function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him or her. We can only vary a penalty decision where there is clear error in principle or relevant material facts are not considered. This is not something done lightly.

14The appellant raised the following two principal issues in this appeal:

A) Did the Hearing Officer err in law by treating the right to hearing and thereby, a refusal to accept responsibility, as an aggravating factor on penalty?

B) Did the Hearing Officer err in law by failing to apply the sentencing principles of progressive discipline and consistency of penalty, thereby imposing a penalty that was harsh and excessive in the circumstances of this case?

ANALYSIS

15The Hearing Officer reviewed the following 10 of the standard 13 factors that he thought were relevant in arriving at an appropriate penalty:

• Public interest
• Seriousness of the misconduct
• Recognition of the seriousness of the offence
• Employment record
• Ability to reform
• Need for deterrence
• Damage to the reputation of the police service
• Effect on the officer and his family
• Management approach to misconduct
• Consistency of penalty

16The relevance and importance of the individual factors will vary depending on the circumstances of each case. None of these factors is paramount over the others and the factors are intended to be flexible, contextual and may evolve over time: see Husseini v. York Regional Police Service, 2018 ONSC 283 at para. 36.

17In Krug v. Ottawa Police Service, 2003 CanLII 85816 (ON CPC) the Commission spoke to the seriousness of the offence and the weight to be accorded to it and other factors when it wrote:

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.

18We shall now deal with the issues raised by the appellant.

A) Did the Hearing Officer err in law by treating the right to have a hearing and thereby, a refusal to accept responsibility, as an aggerating factor on penalty?

19There appear to be two somewhat competing lines of cases at play with this issue. While remorse or refusal to accept responsibility may be taken into account when determining a penalty, the cases are not consistent on the issues of whether lack of remorse can only be considered as the absence of a mitigating factor, rather than as an aggravating factor. The appellant relies on the principle stated in Carson and Pembroke Police Service, 2001 CanLII 56731 (ON CPC) where the Commission wrote the following at page 8 of its decision:

Accordingly, the Hearing Officer should not have concluded that Constable Carson’s refusal to accept responsibility for his actions was an aggravating factor in the imposition of the penalty. In other words, the Hearing Officer could have refused to reduce the penalty of Constable Carson by reason of his refusal to accept responsibility but he should not have considered such refusal as an aggravating factor and therein increased the penalty. Accordingly, we have concluded that the Hearing Officer made an error in principle in this regard.

20The respondent submits that the Hearing Officer was entitled to take into account the appellant’s lack of an apology and relies on the following quote from Martin v. Windsor Police Service, 2009 ONCPC 10:

In our opinion the Hearing Officer was entitled to conclude that Constable Martin did not recognize the seriousness of his misconduct in the circumstances. The lack of any apology or expression of remorse is one element which the Hearing Officer is entitled to consider when analyzing whether or not an officer truly recognizes the seriousness of his actions.

21In Martin, the Commission also adopted the following quotation from Carson:

Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach. Other factors can be relevant, either aggravating or mitigating a penalty, depending on the conduct in question. These include the officer’s employment history and experience, recognition of the seriousness of the transgression [emphasis added] and handicap or other personal considerations.

22The respondent also relies on a quote from Karklins where the Divisional Court wrote the following at para. 23:

The Hearing Officer’s conclusion that Karklins was beyond rehabilitation was a key part of his decision and encompassed a number of sub-factors, including Karkins’ lack of remorse, his lack of empathy for Ferreira, his failure to recognize or understand the seriousness of his misconduct…….

23However, in Karklins the court mentioned that the lack of remorse by the officer was to be treated as the absence of a mitigating factor rather than an aggravating factor.

24The recognition or lack of recognition of the seriousness of an offence has been a standard factor for Hearing Officers to consider when attempting to arrive at a suitable penalty for misconduct.

25The Hearing Officer considered the lack of an apology as an aggravating factor while also taking that lack into account when considering whether the appellant recognized the seriousness of the offence. In our view, however, even if he did commit an error in principle when he considered it to be an aggravating factor rather than one that instead did not warrant mitigation, that does not automatically lead to a reduction in the penalty.

26In LSUC v. Abbott, 2017 ONCA 525 the Court of Appeal wrote the following:

In order to justify its rejection of that outcome, the Appeal Division was required to identify an overriding error of principle made by the Hearing Division that renders its penalty decision unreasonable, in the sense given metaphorically by Stratas, J.A. in South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286, leave to appeal ref’d, [2012] S.C.C.A. No. 349 at para. 46:

“Overriding” means an error that goes to the very core of the outcome of the case…[it] is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.

27It is clear to us from reviewing the entire decision that the Hearing officer took a balanced approach to sentencing and in doing so he found the misconduct at the high end of the spectrum writing at page 15:

I view his misconduct at the high end of the spectrum and serious enough to warrant a severe penalty. In today’s reality, the public expects a much higher level of professionalism from police officers in order to keep their trust. A clear message must be sent both to Cst. Ebdon and all police officers that these actions compromise the integrity of our profession and put the confidence of the public in jeopardy.

28We would not give effect this ground of appeal. Even if the Hearing Officer did commit an error in principle, we do not believe such error went to the core of the penalty decision.

B) Did the Hearing Officer err in law by failing to apply the sentencing principles of progressive discipline and consistency of penalty, thereby imposing a penalty that was harsh and excessive in the circumstances of this case?

29Consistency of penalty has always been considered as an important principle to be applied by both Hearing Officers and the Commission. The appellant submits that the Hearing Officer ignored three penalty decisions that were particularly apposite and established the range of penalties that should have been considered. In PC Lock v. OPP, Board of Inquiry, January 17, 1995 the officer was found guilty of Discreditable Conduct for giving “differing and inconsistent testimony in court proceedings” and was assessed a penalty of 32 hours forfeiture of pay. In Worthman v. York Regional Police Service, September 23, 2014 the officer was also convicted of Discreditable Conduct when he gave what the court termed “misleading, nonsensical and patently absurd evidence” the penalty was also the forfeiture of 32 hours pay. Finally, in Kennedy v. Ottawa Police Service, January 11, 2016 the officer was found guilty of Discreditable Conduct for providing inaccurate information in court that compromised the prosecution and was given a penalty of the forfeiture of 48 hours pay.

30The respondent notes that the penalties in Worthman and Kennedy were the result of joint submissions and that there are insufficient facts in the report of the Lock decision to understand if it is a useful comparator for consistency purposes.

31The respondent relies in large part on the decision in Mountjoy v. Metropolitan Toronto Police Force, 1989, 6724 (ON CPC) where the Commission upheld a demotion from first class to third class constable, then a yearly progression back to first class for an officer who was convicted of two counts of Discreditable Conduct. One count involved the officer providing false information to investigating officers about a friend of his that was being investigated and the second count related to signing a passport application attesting to having known the applicant for three years when he had not. We don’t view this decision as being especially helpful.

32The ultimate question is whether the penalty imposed was reasonable in all of the circumstances or was it unfit. Rarely are two cases used as precedents before Hearing Officers identical. The 13 factors usually taken into account by Hearing Officers are invariably given different weight in different situations. In this matter, different Hearing Officers may very well have reached a different conclusion. We are not satisfied that the demotion imposed by the Hearing Officer on the appellant was outside the range of reasonable penalties given the nature of the misconduct.

33The appellant’s final submission is that the Hearing Officer failed to apply the sentencing principle of progressive discipline as the only previous discipline on his record was a reprimand. There is no legal principle that requires progressive discipline in every case: Agostino v. Gary Bean Securities LTD., 2015 ONCA 49. The nature of the misconduct must be considered and even a single act of misconduct may be sufficient to warrant dismissal in an extreme situation.

ORDER

34Pursuant to s. 87(8) of the PSA, we confirm the decision of the Hearing Officer.