TRIBUNALS ONTARIO Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission civile de l’Ontario sur la police
File: 21-ADJ-001
Appeal under section 87(1)(4) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
A.B.
Appellant (Public Complainant)
and
Cst. Steven Carleton
Respondent
and
North Bay Police Service
Respondent
And
The Independent Police Review Director (IPRD)
Intervenor
MOTION DECISION
Representatives:
Sharon Devine, for the appellant
Gary Clewley, counsel for the Constable Steven Carleton
Lynda A. Bordeleau, counsel for the North Bay Police Service
Morvarid Shojaei, counsel for the IPRD
Heard by way of written submissions
Adjudicator: D. Stephen Jovanovic
INTRODUCTION
1In a decision dated November 27, 2020, (Ret.) Superintendent M.P.B. Elbers (the Hearing Officer) accepted a plea of guilty by Cst. Steven Carleton (the respondent) to one count of neglect of duty set out in the decision as follows:
You are alleged to have committed Neglect of Duty in that on December 9, 2018 you without lawful excuse, neglect or omits promptly and diligently to perform a duty as a member of the North Bay Police Service constituting an offence against discipline as prescribed in section 2(1)(c)(i)(A) of the Code of Conduct, Ont. Regulation 268/10, as amended.
2The respondent was charged following an investigation by the Office of the Independent Police Review Director (the OIPRD) into a complaint made by A.B. (the appellant) that she had been the victim of a sexual assault on December 9, 2018. The matter proceeded by way of an Agreed Statement of Fact (the ASF) and one charge of discreditable conduct was withdrawn.
3The prosecution and counsel for the respondent proposed a joint submission on penalty for the forfeiture of 64 hours of time to be worked at the discretion of the Division Commander pursuant to s. 85(1)(f) of the Police Services Act (the PSA). The appellant now seeks leave of the Commission to appeal the penalty as required by s. 87(4) of the PSA and Rule 32 of the Commission’s Rules of Practice.
4The Hearing Officer wrote the following in his decision:
AB’s mother who attended the proceeding agreed with the hours to be worked and understood that the Discreditable Conduct charge that was withdrawn on the Hearing date, that the facts of that count were rolled into the Neglect of Duty charge. She commented that she would have preferred the Discreditable Conduct charge to remain. The issues were explained and resolved prior to the Hearing with Counsel, AB’s mother and the Adjudicator (the Hearing Officer).
AB’s mother also presented submissions to the Tribunal. She was polite and cordial in her presentation. I have considered her submissions in the disposition presented by Counsel. I think it is fair to comment that her mother was not satisfied in the least by the investigation by this officer. She pointed out a number of inconsistencies in the investigation and pointed out to the Tribunal she or her daughter did not receive an apology from Constable Carleton. She did outline that she spoke with Chief Tod of the Service and this was beneficial to her.
As was stated by Counsel, sexual assault investigations are under reported by victims to police services and we must make the victims feel comfortable as we know they are reporting or attending the Service with fear and with a distrust of the judicial system. AB’s experience with the Service through Constable Carleton made her feel re-victimized and not believed by the officer. I hope Constable Carleton has learned and also has listened to the comments made by ABs mother at the Hearing. Those words spoken by her will make him a better Police Officer.
5The Hearing Officer assessed nine of the factors typically taken into account in determining an appropriate penalty. He divided these factors into those that he found to be aggravating and those to be mitigating as follows:
Aggravating factors
- Public interest
- Seriousness of the misconduct
- Need for deterrence
- Damage to the reputation of the police service
- Management approach to misconduct
Mitigating factors
- Recognition of seriousness of the misconduct
- Employment history
- Ability to reform or rehabilitate the office
- Effect on the police officer and his family
6The Hearing Officer indicated that he “may have been more inclined to administer a more stringent penalty if it were not for the positive comments and observations relayed to me by Counsel.”
DISPOSITION
7For the reasons that follow, the appellant’s Request for Leave to Appeal is dismissed.
THE ISSUES
8Under s. 87(4) of the PSA, the Commission in an appeal from a penalty by a complainant “may hold a hearing, if it considers it appropriate…” The test to be applied in considering whether leave to appeal a penalty should be granted was recently restated in the Commission’s decision in Ryan v. Ramos, 2019 ONCPC 1 where the Commission wrote the following:
Leave to appeal should be granted if one of the following conditions is met:
i) The decision is clearly wrong on its face and the appeal involves matters of such importance that leave ought to be granted.
ii) There is a conflicting decision of the Commission on the matter involved in the proposed appeal and it is desirable that leave be granted.
iii) The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.
9In my view, the decision is not clearly wrong on its face and the appellant has not cited any conflicting decisions of the Commission. Accordingly, I need only to consider the third branch of the test.
10The North Bay Police Service takes no position on the issue of leave to appeal and the IPRD did not file submissions on the motion but indicated that a decision would be made whether to be further involved if leave were granted.
11The appellant essentially makes two submissions. She indicates in her factum that she believes she was not afforded full party status and should have received clearer assistance from the Hearing Officer during the course of the proceedings. The appellant also submits that the “minimum” penalty that should have been assessed by the Hearing Officer was the forfeiture of 80 hours or a six-month demotion with additional training and “professional rehabilitation.”
12In Challans v. Timms-Fryer, 2017 ONSC 1300, the Divisional Court dealt with a judicial review application brought by an officer seeking to set aside a decision of the Commission that ordered a new disciplinary hearing because the hearing officer did not provide the public complainant, who was unrepresented, with the minimum level of assistance he was entitled to receive during the hearing. The Divisional Court agreed with the Commission that a public complainant was entitled to the same rights as the officer charged with misconduct and a minimum level of assistance. The application for judicial review was dismissed.
13The appellant in her factum alleges that she was hurried into accepting the ASF and did not understand what “submissions” meant or her right to make them. However, the extracts from the reasons of the Hearing Officer provided above and the transcript of the proceedings indicate otherwise.
14The respondent in his factum points out that the appellant took the opportunity to make submissions on the merits of the misconduct charge and on the penalty being considered: see the transcript at pages 38-55 and 68-78.
15In my view, the issues raised by the appellant do not rise to the level of “significant importance to the policing profession as a whole and the community at large.” Her written submissions on her leave application that the respondent should have been assessed the forfeiture of 80 hours rather than 64 hours of pay, as a minimum, is not of significant importance justifying the granting of leave.
16I am not therefore satisfied that it would be appropriate to grant the request for leave to appeal and hold a hearing on the issue of penalty.
ORDER
17The appellant’s Request for Leave to Appeal is dismissed.
DATED at Toronto: August 31, 2021
D. Stephen Jovanovic, Associate Chair