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: Kramp v. Durham Regional Police Service, 2020 ONCPC 9

Date: September 18, 2020

File: 19-ADJ-006

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. Tara Kramp Appellant

And

Durham Regional Police Service Respondent

DECISION

Panel: Maureen Helt, Vice-Chair Laura Hodgson, Vice-Chair Jenny Restoule-Mallozi, Vice-Chair* *Ms. Restoule-Mallozi did not participate in the final decision

Appearances: Sandip S. Khehra, counsel for the appellant Ian Johnstone and Alex Sinclair, counsel for the respondent

Place and date of hearing: Toronto, Ontario December 11, 2019

INTRODUCTION

1This is an appeal by Constable Tara Kramp (the appellant) from the penalty imposed by Hearing Officer Supt. Morris Elbers (the Hearing Officer) following her guilty plea to one count of insubordination and one count of discreditable conduct under subsection 87(1) of the Police Services Act (PSA). The Hearing Officer, in his decision dated June 26, 2019, imposed the penalty of immediate dismissal.

2The appellant seeks an order reversing the dismissal ordered by the Hearing Officer, instead imposing a demotion to fourth class constable, and then eventual promotion to first class constable over several years. The appellant agrees to be subjected to random urine analyses and/or random approved screening device breath samples within reason.

3The events giving rise to this appeal date back to 2011.The appellant had been a member of the Durham Regional Police Service (DRPS) since 1998. In 2011, the DRPS acted on a tip that a police officer was providing confidential and sensitive police information to members of the public. The DRPS commenced an investigation into not only the appellant, but a number of known drug dealers in the Oshawa region.

4The investigation ultimately revealed that the appellant conducted seven unauthorized Canadian Police Information Centre (CPIC) searches as well as dozens of unauthorized searches on the Durham Records Management System. A wiretap was authorized to monitor the appellant’s communications. The wiretap revealed that the appellant disclosed confidential information relating to an ongoing police investigation. More specifically, the appellant was recorded disclosing confidential information to a man who ultimately pled guilty to trafficking drugs and a number of other offences in May 2013.

5On June 12, 2012 the DRPS executed a search warrant at the appellant’s residence. As a result, she was arrested for Breach of Trust and Careless Storage of a Firearm under the Criminal Code of Canada. After her arrest, the appellant attended a thirty-five-day residential treatment program at Homewood Health Centre. At the time, she was suffering from depression and substance abuse issues.

6On June 13, 2012, the appellant was interviewed by the DRPS Professional Standards Unit in relation to her arrest the previous day. On June 22, 2012 an Order to Conduct a Hearing naming the appellant was issued. It set out several PSA disciplinary charges.

7On July 29, 2014 the appellant pled guilty to the criminal offences of Breach of Trust and Careless Storage of Firearm and received a suspended sentence and probation. Throughout this time, the appellant’s hearing under the PSA was stayed.

8On October 3, 2014, the appellant received a Notice to Attend a Hearing for her PSA charges.

9On March 21, 2016 the appellant pled guilty to the PSA charges of discreditable conduct and insubordination.

10This appeal relates to the penalty decision in which the appellant was dismissed. Over the approximate three-year period over which the penalty hearing took place there were several procedural motions made by the appellant including: abuse of process, an application made for a fact finder and a request for a stay of proceedings.

DISPOSITION

11For the reasons set out below, the Hearing Officer’s decision on penalty is confirmed and the appeal is dismissed.

ISSUES

12This appeal raises the issue of:

a. What is the appropriate standard of review to be applied to a penalty decision?

13Further, issues raised by the appellant can be summarized as:

i. Did the Hearing Officer err in law by dismissing the abuse of process application, the request for a fact finder and the adjournment motions?

ii. Did the Hearing Officer fail to give appropriate weight to the appellant’s expert opinion?

iii. Did the Hearing Officer impose a reasonable penalty in the circumstances?

ANALYSIS

What is the standard of review to be applied to a penalty decision?

14In Kobayashi and Waterloo Regional Police Service, 2015 ONCPC 12, the Commission summarized its function on a penalty appeal at paragraphs 32 and 33:

[32] The law is clear that the standard of review for a Hearing Officer’s penalty disposition is that of reasonableness. As stated in Karklins v. Toronto (City) Police Service, 2010 Carswell Ont. 567 (Div. Ct.) at para 9:

“[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 decision where there is a clear error in principle or relevant material facts are not considered. This is not something done lightly.”

[33] As such, 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 - see: Groot and The Peel Regional Police Service, (April 5, 2002, OCCPS) at p. 7; Hassan and The Peel Regional Police Service, (September 8, 2006, OCCPS) at p. 10; Williams, Wilson and Ontario Provincial Police, (November 20, 2006, OCCPS), Favretto and Ontario Provincial Police, (February 13, 2002, OCCPS) and Karklins and Toronto Police Service, supra.

15The Commission accepts that it cannot reweigh the disposition factors nor interfere with a decision on a penalty even if it may have come to a different conclusion. The standard of review is reasonableness for a penalty decision.

I. Did the Hearing Officer make the following errors?

Abuse of Process

16The appellant submits that the Hearing Officer erred in law by dismissing the abuse of process application that alleged witness intimidation by the DRPS.

17Following his testimony at the PSA proceedings, a character witness for the appellant, Constable Kirk, was put on notice that he was being investigated by the DRPS for Neglect of Duty. The investigation related to his testimony that he did not notify supervisors after observing the appellant impaired at work. The investigation did not result in any charges against Constable Kirk.

18On July 7, 2016, the appellant brought a motion alleging abuse of process and requesting a stay of the proceeding on the basis of witness intimidation. The appellant argued that the investigation and alleged intimidation of Constable Kirk constituted an abuse of process warranting a stay of proceedings. In the appellant’s view, the DRPS’ conduct towards Constable Kirk, her first character witness, “had a chilling effect on her ability to call other character witnesses.” That chilling effect, the appellant submitted, interfered with her ability to make full answer and defence.

19In his reasons for dismissing the abuse of process and stay application, the Hearing Officer noted that the standard for determining abuse of process in a PSA proceeding is extremely high¹. He concluded that the DRPS investigation of Constable Kirk did not amount to abuse of process as it was within the DRPS’ authority to investigate Constable Kirk for alleged Neglect of Duty.

20In making her submissions that the Hearing Officer erred in dismissing the abuse of process motion, the appellant submits that the DRPS could not investigate Constable Kirk. She argued that section 14.1 of the Statutory Powers Procedure Act (SPPA) provides that a witness’ evidence cannot be used against him or her. The DRPS submits that this provision is not applicable to employee discipline and that the DPRS had a statutory obligation to investigate.

21The DRPS references the decision Brewers Retail Inc. v. United Food and Commercial Workers Union². In that case, the union sought an order preventing the employer from disciplining any witness who came forward to give evidence regarding the practice of employees punching one another’s time cards. The Arbitrator held that employees cannot be shielded from an employer investigation.

22The obligation for senior police officials to properly supervise subordinate officers under their command, and to follow up on allegations of potential serious misconduct or dereliction of duty, was established in Gottschalk v. Toronto Police Service (2003) CanLII 75465. The DRPS relies on this to support its position that, upon learning of Constable Kirk’s Neglect of Duty in reporting the appellant, the DRPS had an obligation to investigate.

23The Commission finds the Hearing Officer made no error in dismissing the abuse of process application.

Appointment of Fact Finder

24The appellant asked the Hearing Officer to appoint a fact finder to investigate her claim that other witnesses were afraid to testify on her behalf because of the investigation of Constable Kirk. The Hearing Officer found there was no evidentiary or legal basis for a fact finder to be appointed and dismissed the application.

25The appellant submits that the Hearing Officer erred in refusing to appoint a fact finder however fails to set out any evidentiary grounds for this alleged error nor any law to suggest that a fact finder ought to have been appointed in this case.

26The DRPS submits that the Hearing Officer’s powers were limited to the statutory mandate under the PSA. The PSA does not allow for the appointment of a fact finder by a Hearing Officer. Additionally, the DRPS submitted that there was no evidentiary basis to support the appellant’s claim that other officers were intimidated.

27The Commission finds that the Hearing Officer’s decision to not appoint a fact finder is reasonable.

Request for Adjournment

28On May 14, 2019, the appellant requested an adjournment of the penalty hearing to “renew” her abuse of process application on the basis of alleged “fresh evidence”. Her adjournment request was made on the basis of a newspaper article alleging “mass wrongdoing” by the upper management of the DRPS. The appellant submitted a Toronto Star article dated February 22, 2019 alleging intimidation at the DRPS as evidence in support of her motion.

29In dismissing the motion, the Hearing Officer found that the appellant had not pointed to any fresh evidence relevant to her proceedings. With respect to procedural fairness the Hearing Officer noted:

The Tribunal has adjourned on three occasions for the Defense to raise Motions for Procedural issues and Fact Finding, this Tribunal has been cautious and has waited and allowed the Defense to bring these Motions forward in all cases in extreme opposition to the delay from the Prosecution. I noted in the Motion decisions that the adjournments were allowed due to the fact that the prosecution was seeking dismissal for this officer. I have been extremely cautious of this area of Procedural Fairness. That is the reason that this case has been in progress for over four years. At this point, it is my belief, that there are no considerations before this Tribunal that are apparent or give cause for consideration.

30It was within the Hearing Officer’s discretion to refuse an adjournment. The Commission finds the Hearing Officer was reasonable in doing so.

31Based on the findings noted above, the Commission does not find any errors committed by the Hearing Officer with respect to his decisions concerning the abuse of process motion, request for a fact finder and the request for an adjournment.

II. Did the Hearing Officer fail to give appropriate weight to the appellant’s expert opinion?

32The appellant relied on the expert evidence of Dr. Hy Bloom to support her submission that her substance abuse was tied to her behaviour resulting in the PSA offences. Dr. Bloom explained how alcoholism impacted the appellant’s behaviour and, more specifically, how long-term alcohol abuse physiologically impacts one’s brain. Dr. Bloom testified that long term alcohol use can cause one to make poor decisions even when they are not directly under the influence of alcohol.

33In the appellant’s submissions, the Hearing Officer failed to assign any weight to Dr. Bloom’s opinion. In response, the DRPS submits that the Hearing Officer’s decision to accept or weigh expert evidence is to be given deference.

34The Commission notes that the Hearing Officer found that Dr. Bloom did not have all the information before him to fully assess the appellant’s circumstances. More specifically, Dr. Bloom did not have, at the time of his assessment, the agreed statement of facts submitted by the appellant in relation to her guilty plea to the PSA offences.

35As noted by the DRPS, a decision maker is entitled to give less weight to expert evidence when the expert does not have all the information before them to provide an opinion. In Sinclair v. Canada (Attorney General),³ the court held that the Commissioner of the RCMP was entitled to give little weight to the expert psychiatrists’ evidence when the psychiatrists were not apprised of all the facts relating to the subject officer's work performance.

36In the present case, Dr. Bloom was similarly deprived of the information required to fully assess the appellant’s circumstances. It is crucial for an expert witness to possess a full factual picture in order to provide an expert opinion. For this reason, the Commission finds that the weight given by the Hearing Officer to the expert evidence was within his discretion.

III. Did the Hearing Officer impose a reasonable penalty in the circumstances?

37The appellant asks that the Commission to vary the penalty on the basis that the Hearing Officer failed to consider all relevant factors fairly and impartially.

38The appellant submits that the Hearing Officer failed to appreciate that alcoholism is a disease which impacted her behaviour and, as such, the penalty should have been mitigated on account of her illness. The appellant submits that the Hearing Officer erred in focusing solely on the seriousness of the misconduct, the public interest and the need for deterrence and failed to give any weight to her illness.

39The DRPS submits the appellant’s alcoholism was fully considered. Further, the DRPS argued that deliberate misconduct on multiple occasions is not a lapse in judgement as submitted by the appellant.

40In Orser v. Ontario Provincial Police,⁴ the subject officer pled guilty to one charge of Discreditable Conduct under the PSA. The Hearing Officer accepted that the subject officer had PTSD, and still imposed a penalty of dismissal unless the subject officer resigned within seven days. In dismissing the appeal, the Commission found that even though the subject officer had PTSD there was not a sufficient nexus between his disability and his behaviour.

41Similarly, in this case, the Commission finds that the Hearing Officer did in fact consider alcoholism a disease, however, he did not find a sufficient nexus between her illness and her misconduct. The Hearing Officer at page 67 of the Penalty Decision held:

The actions as displayed by Constable Kramp were grossly inappropriate and lacked any logical reason for her to have engaged in this type of conduct. This is conduct that cannot by tolerated by the Durham Regional Police Service.

42The Commission finds that the Hearing Officer did in fact acknowledge and consider the appellant’s alcoholism but determined that the appellant failed to establish the necessary nexus between her alcoholism and the offences.

43With respect to appropriateness of dismissal as a penalty, the appellant also argued that her lack of personal gain or “motive” should have been sufficient to reduce her penalty from dismissal to demotion.

44The DRPS submits that lack of motive is an insufficient reason to reduce the appellant’s penalty from dismissal to demotion and references the decision in Markham and Waterloo Regional Police Service,⁵ which states:

To send confidential police information to civilians in and of it itself could cause harm. To send such information to the friend of the person who is being investigated could not only lead to an obstruction of justice but could lead to serious harm on many levels.

45In Markham, the subject officer was charged under the PSA for performing unauthorized CPIC searches and disclosing the results of those searches to a person in cells on drug trafficking charges. He was also charged criminally for breach of trust due to these events. The Hearing Officer imposed a penalty of dismissal unless the subject officer resigned within seven days. The subject officer appealed the penalty. This Commission held that disclosure of the contents of CPIC searches places police officers and the community they serve at an unacceptably high level of risk.

46The Commission finds that, in the circumstances of this case, the penalty of dismissal was arrived at after the Hearing Office properly considered all of the factors including: public interest, seriousness of misconduct, recognition of seriousness of misconduct, employment history, need for deterrence, ability to reform or rehabilitate the officer, damage to the reputation of the force, handicap, effect on the police officer’s family, management approach to misconduct, provocation, procedural fairness considerations and consistency of penalty.

47The Hearing Officer also considered established case law supporting dismissal in the circumstances of the case. The Commission finds that the penalty decision of dismissal is in keeping with this Commission’s jurisprudence on the dismissal of officers who have performed unauthorized CPIC searches. The penalty imposed was reasonable.

Conclusion

48The Commission confirms the penalty decision of the Hearing Officer and dismisses the appeal.

Footnotes

1. 1Groat and Quinte West Police Service, 2001 CanLII 56732 (ON CPC), 2001 CanLII56732 (ON CPC) at para 52
2. 2Brewers Retail Inc. v. United Food and Commercial Workers Union, (United Brewers’ Warehousing Workers Provincial Board), 2000 CanLII 50235 (ON LA), 2000 88 LAC (4th) 435
3. 3Sinclair v. Canada (Attorney General) 2006 FC 528 at para 34.
4. 4Orser v. Ontario Provincial Police, 2018 ONCPC 7 at para 52
5. 5Markham and Waterloo Regional Police Service, 2015 ONCPC 4 at para 63 [Markham].