TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Wells v. Cornwall Police Service, 2021 ONCPC 13

Date: 2021-10-29

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

Between:

Cst. Kevin Wells

Appellant

and

Cornwall Police Service

Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Jesse Boyce, Member

Laura Hodgson, Vice-Chair

Appearances:

Lawrence Greenspon and Graham Bebbington, counsel for the appellant

Lynda Bordeleau and Jessica Barrow counsel for the respondent

Place and date of hearing:

Videoconference - Toronto, Ontario

May 12, 2021

Introduction

1In a decision dated March 3, 2020, by Superintendent (Ret.) Greg Walton (the Hearing Officer), the appellant was found guilty of two counts of discreditable conduct, one count of neglect of duty and one count of deceit. The charges were under the Code of Conduct, O.Reg. 268/10, pursuant to the Police Services Act (the PSA). He was found not guilty of two other counts of neglect of duty.

2The Hearing Officer, in a decision dated October 7, 2020, ordered that the appellant be dismissed from the respondent in seven days unless he resigned before that time.

3The appellant has appealed to the Commission both the findings of misconduct and the penalty imposed by the Hearing Officer.

Disposition

4For the reasons that follow, the appeal is dismissed.

OVERVIEW

5The events giving rise to the charges all occurred over the course of one shift worked by the appellant from the afternoon of September 6, 2018 to the following morning. The facts underlying the charges may be summarized as follows.

Count 1: Discreditable Conduct

The appellant was advised by a fellow officer prior to the start of his shift that his driver’s licence had been expired for about two months. He nevertheless operated the service vehicle without informing his supervisor that he did not have a valid licence, contrary to service policy.

Count 3: Neglect of Duty

The appellant, while operating the service vehicle, collided with a cement median at about 11:00 p.m. damaging the undercarriage and did not make an entry in his notebook about the collision. He did not “immediately” report the damage to the vehicle but continued to drive it until 4:45 a.m. when he did report the accident to his supervisor.

Count 4: Discreditable Conduct

The appellant left a domestic harassment call for service at about 11:36 p.m. and drove the vehicle to a friend’s place of business for inspection. The friend, who was a licensed mechanic, examined the undercarriage and determined the extent of the damage. The appellant was contacted by Communications about responding to the harassment call but stayed at his friend’s garage for 29 minutes before leaving to attend the call. He did not advise Communications of his location and did not make any notes about the harassment call.

Count 5: Deceit

At the conclusion of his shift, the appellant advised his supervisor of the collision but did not advise him that he had the vehicle inspected by a licensed mechanic; that he had viewed the damage; and that he did not have a valid licence. Further, he left a “misleading” note for the respondent’s mechanic writing “I hit a curb with car 4, there’s a vibration and it doesn’t sound right”.

6The appellant began his employment as a 4th Class Constable in 2007 eventually progressing to 1st Class Constable. In March 2016 he pleaded guilty to three counts of discreditable conduct, two counts of breach of confidence and two counts of neglect of duty. The hearing officer presiding over those misconduct charges ordered that the appellant be demoted to the rank of 4th Class Constable. The significance of that demotion to the current matter will be discussed later in these reasons.

ISSUES

7We shall deal with the appellant’s submissions under the following headings:

I) The Standard of Review

II) The Application of Vavilov to the Decision

III) The Reasonableness of the Penalty

ANALYSIS

i) The Standard of Review

8the standard of review applied by the Commission when considering an appeal from the decision of a hearing officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Service v. Diafwila, 2016 ONCA 627. Questions as to whether facts satisfy a legal test are questions of mixed fact and law and are to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Jeremiah Johnson v. Durham Regional Police Service, 2020 ONCPC 3; Dunsmuir v. New Brunswick, 2008 SCC 9.

9On the issue of penalty, the standard of review is reasonableness. The Divisional Court in Constable I. Karklins v. The Chief of Police – Toronto, 2010 ONSC 747, accepted the following statement on the role of the Commission on a penalty appeal:

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. That is not something done lightly.

10In Kobayashi and Waterloo Regional Police Service, 2015 ONCPC 12 the Commission summarized its function on a penalty appeal as follows:

[T]he Commission is not permitted to reweigh the disposition factors to come to a different 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.

II) The Application of Vavilov

11The appellant submits that the principal issue in this appeal is the failure of the Hearing Officer to fully or meaningfully analyze and “grapple” with the core issues before him. He cites the following passage from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65:

…a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.

12The appellant further submits that Vavilov requires a “robust” review of the decision especially when there is the potential of a significant outcome, i.e. the dismissal of an officer.

13The Divisional Court has recently commented on what may constitute a reasonableness review post Vavilov. The Court wrote the following in Radzevicius v. Workplace Safety and Insurance Appeals Tribunals, 2020 ONSC 319 at paras 56-58:

…The Tribunal’s reasons are not perfect, nor are they required to be. Vavilov stresses the importance of the reasoning process as well as the outcome, given the legal constraints and the evidence before the Tribunal. However, Vavilov does not constitute a significant change in the law of judicial review of the reasons of administrative tribunals. The Supreme Court drew on its past jurisprudence when it gave guidance as to how to engage in reasonableness review. I note that at para. 75, the majority emphasized that their approach is not “fundamentally dissimilar” to that of the dissenting judges stating,

…reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers. Moreover, as explained below, reasonableness review considers all relevant circumstances in order to determine whether the applicant has met their onus.

Here, there was no fundamental flaw or gap in the Tribunal’s analysis. It satisfied its obligation to explain its conclusions. Its reasoning was coherent and logical, and its determination that the deceased was not entitled to benefits was within a range of reasonable outcomes, based on the legislation, the operative Policies and the evidence.

14In reviewing the analysis and reasons of the Hearing Officer, we do so as directed by the Supreme Court in Vavilov at para. 91 where the Court wrote the following:

A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details that the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16.

15We now turn to the appellant’s submissions on the Hearing Officer’s findings of guilt on the individual counts of misconduct.

Count 1: Discreditable Conduct

16The appellant submitted that the Hearing Officer made three errors in his consideration of this count. He submits that the Hearing Officer failed to apply the test for whether conduct by an officer can amount to discreditable conduct as set out in Galassi v. Hamilton Police Service, 2003 CanLII 75459 (ONCPC); that he failed to refer to three specific cases that illustrated the type of conduct that may rise to the level of being discreditable and; that he failed to address the issue as to whether the conduct amounted only to neglect of duty rather than discreditable conduct. He further submitted that the Hearing Officer ignored six pieces of evidence which, presumably, had they been considered would have negated a finding of discreditable conduct.

17The appellant acknowledged in oral argument before us that the Hearing Officer did set out in his decision the proper test for discreditable conduct from Galassi, which stated the following:

• The test is primarily an objective one.

• The Board [referring to the former Boards of Inquiry] must assess the conduct of the officer by the reasonable expectations of the community.

• In determining the reasonable expectations of the community, the Board may use its own judgment, in the absence of evidence as to what the reasonable expectations are. The Board must place itself in the position of the reasonable person in the community, dispassionate and fully apprised of the circumstances of the case.

• In applying this standard, the Board should consider not only the immediate facts surrounding the case but also any appropriate rules and regulations in force at the time.

• Because of the objective nature of the test, the subjective element of good faith (referred to in the Shockness case) is an appropriate consideration where the officer is required by the circumstances to exercise his discretion.

18The six pieces of evidence referred to above were:

1. the appellant’s licence was expired as opposed to suspended;

2. the appellant was not informed of the expiry for two months;

3. the appellant was working an overtime night shift;

4. by working, the appellant was, in effect supporting his co-workers;

5. the appellant planned to renew his licence the next day; and

6. the respondent’s knowledge or lack of knowledge of the status of the appellant’s licence.

19At page 13 of his decision the Hearing Officer began his analysis of the first count of discreditable conduct. He noted that the essence of the allegation was that the appellant operated a police cruiser without a valid licence, contrary to the respondent’s General Order ADM029 which, not surprisingly, provides that no member of the service shall operate a service vehicle unless they hold a valid Ontario driver’s licence.

20The Hearing Officer reviewed the essential facts underlying the count which were that the appellant did not possess a valid licence, knew he did not have one before the start of his shift, did not advise any of his superiors that he was not properly licenced, could have renewed his licence online before the start of the shift and operated the cruiser the entire shift without a valid licence.

21At page 15 of the decision, the Hearing Officer recited the submission of the appellant’s counsel that “an objective member of the community, dispassionate, reasonable and fully apprised of the same facts and circumstances as well as the applicable rules and regulations would not assess the conduct as being discreditable; the actions do not rise to the level of discreditable conduct.” The Hearing Officer stated that he disagreed with the submission, which was a concise summary of the test, and explained why he disagreed.

22The Hearing Officer noted that the appellant made the conscious decision to not only report for duty but to conceal the fact that he did not have a valid licence. In our view, it was open to the Hearing Officer to find that the appellant’s conscious actions satisfied the test for discreditable conduct. This was a reasonable finding of mixed fact and law that was fully supported by the evidence. There was no need for the Hearing Officer to state or “grapple” with what the appellant submitted were the six additional pieces of evidence: see Vavilov above.

23We do not agree with the appellant that the Hearing Officer was required to weigh the actions of the appellant against the actions of the officers in Galassi; Mulligan and The Ontario Provincial Police, 2017 ONCPC 19 or Susan Mancini and Constable Martin Courage (Niagara Regional Police Service), 2004 CanLII 76810. Each case is to be assessed on its own particular facts, as found by the hearing officers.

24Finally, with respect to this count, we see no reason why the Hearing Officer was required to explain why the appellant’s actions may have amounted to neglect of duty but not discreditable conduct. As we indicate above, the Hearing Officer cited the correct test for discreditable conduct, analyzed whether the facts before him satisfied the test and made a reasonable finding of guilt. It was irrelevant whether the facts could also support a finding of neglect of duty: see Sterling and Hamilton-Wentworth Police Service, 1999 CanLII 31606 (ON CPC).

Count 3: Neglect of Duty

25The appellant had been charged with an additional count of neglect of duty for failing to make a notebook entry of his response to a “suspicious person” call. However, he was acquitted by the Hearing Officer who determined that the appellant’s failure to make an entry was more of a performance issue that did not cross the threshold into neglect of duty. In making this decision, he reviewed a number of authorities cited by the parties. He then dealt with the third count of neglect of duty.

26He indicated that there were two components to this charge: the failure to report the collision with the median “immediately” as required by the respondent’s policy and the failure of the appellant to make a notebook entry about the collision. The Hearing Officer also indicated that a finding of neglect of duty could be made if only one of the components was established. The appellant doesn’t take issue with that point but advances a number of reasons why the finding of guilt should be set aside.

27The Hearing Officer heard evidence from Sgt. MacLean and Inspector Maxwell to the effect that “immediately” doesn’t necessarily mean “right away”. The appellant cites the following passage from the decision in Gallant v. Ontario Provincial Police, 2017 ONCPC 16 as to the importance of such evidence.

Bringing disciplinary charges, in the context of this case was, in our view, an overreaction to the appellant’s report. The appellant’s use of the language in the RMS report, as set out in paragraph 39 above, while sarcastic, should have been treated as a performance issue and addressed accordingly. It should be remembered that his direct supervisor, Sgt. Leblanc, felt that even internal discipline was not warranted. At one point he approved the appellant’s report. Sgt. Leblanc’s opinion would have been part of the “circumstances” of the case in considering whether the appellant’s actions amounted to discreditable conduct.

28In our view, the decision in Gallant is not especially helpful to us or the appellant. As indicated above, the officer in Gallant had been charged with discreditable conduct. The Commission considered the evidence or opinion of Sgt. Leblanc in deciding if the hearing officer’s conclusion that the conduct in question was discreditable and concluded that the finding was unreasonable, in part because of that evidence. The Commission wrote that “If the actions of the officer were viewed objectively, we do not believe that a reasonable person in the community would have concluded that the report was ‘likely to bring discredit upon the reputation’ of the respondent”.

29What we can take away from Gallant is simply that each case is to be decided on its own facts or the “circumstances of the case”. The appellant submits that the Hearing Officer failed to address the opinions of Sgt. McLean and Inspector Maxwell and whether they had any bearing on the neglect of duty charge.

30As we read the decision of the Hearing Officer, he did in fact consider their opinions and rejected them for reasons that he explained.

31The Hearing Officer considered the following three sections of the respondent’s policy ADM029 dealing with vehicle damage:

2.07 When a member of the service discovers a vehicle or its equipment in need of maintenance or repair, the member shall report the discrepancy to the SDO [Station Duty Officer] immediately, who in turn will make arrangements to have the vehicle repaired.

4.05 Members will immediately report to their supervisor, any damage that occurs to a vehicle being operated by them and any damage or lost equipment contained therein.

7.01 When a Service vehicle or a vehicle rented by the Service is involved in a collision or the vehicle is otherwise damaged, the incident will be reported to a Supervisor immediately and investigated by an officer holding supervisory rank, (including acting rank).

32Although there was some disagreement as to which section applied to the appellant, the Hearing Officer reasonably decided that section 7.01 would apply and that “immediately” meant just that, immediately or without delay.

33The Hearing Officer specifically referenced the evidence of Inspector Maxwell when he was asked in cross-examination if circumstances existed where immediate reporting of the damage might not be required. Inspector Maxwell acknowledged that he was aware of incidents in the past where minor damage was reported after the fact. The Hearing Officer wrote:

I am not impacted by this comment. I was not provided the circumstances which existed in those instances and irrespective of those situations, I am required to examine the circumstances which exist to this specific allegation.

34In dealing with the evidence of Sgt. Mclean that the report of the collision he received from the appellant five hours after the fact was, in effect, sent immediately, the Hearing Officer noted that this opinion could not supersede the respondent’s Policy. He noted that the Merriam-Webster dictionary definition of immediately was “without interval of time”.

35A hearing officer is not bound to accept the evidence of an officer’s immediate supervisor: see Smith and Manuel and The Toronto Police Service, 2003 CanLII 75469 (ON CPC). Such evidence may be supportive or contradictory to the officer’s position. Under s. 94 of the PSA, a hearing officer is the delegate of the Chief of Police who is responsible for the discipline of officers. While a Chief of Police may accept an opinion of a supervisory officer, he or she is not bound to accept it and neither is a hearing officer.

36The Hearing Officer’s decision that the appellant failed to report the collision “immediately” was reasonable and his reasons fully explained why he so concluded. He did in fact “grapple” with the evidence,

37As indicated above, the second component to the neglect of duty count was the appellant’s failure to make any notebook entries. The following paragraphs taken from pages 22 and 23 of the Hearing Officer’s decision support a finding of neglect of duty for this reason.

I find that failing to document the collision and subsequent damage is more than a performance issue, the degree of neglect is so significant that it rises to a matter of misconduct. Cst. Wells’ explanation that it was a non-reportable accident, similar to a non-reportable call for service as in Count #2 does not apply here; all officers know that on-duty collisions must be reported to a supervisor and a notebook entry is required. He did not just fail to record that he was in a collision, he also failed to document that he observed damage to his cruiser, that he had the cruiser examined by a licenced mechanic who pointed damage out to him, that he informed his sergeant of the collision hours later and that he dropped off the car at [Cornwall] Transit.

Not recording the collision in his notes was a deliberate decision.

Count 4: Discreditable Conduct

38In his factum, the appellant submitted that the conduct that formed the basis for count 3 was the same conduct that made up count 4 and accordingly the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), precluding an accused from being punished twice for the same cause or matter, should be applied. However, during oral argument, he indicated that he would not be pursuing this point.

39There were several different components to this count and the Hearing Officer found in favour of the appellant on several of them. He found that the appellant’s departure from his patrol area, or jurisdiction, without authorization did not amount to discreditable conduct. Nor did the fact that the 38 minute delay in responding to the harassment call, because the appellant was outside the area and did not advise Communications as to his location, amount to discreditable conduct.

40His reasoning for finding the appellant guilty of this count is set out at page 31 of his decision. He again referred to section 2.07 of ADM029 and the fact that the appellant had his cruiser inspected by an unapproved mechanic without authorization, then wrote the following:

I do not accept Cst. Wells’ assertion that this was a necessary exercise to ensure the vehicle was safe to drive during the course of his shift. Policy directs officers to report vehicle damage to a supervisor who will address the situation. Cst. Wells’ decision to have the vehicle inspected by a friend, and to not make any notification or notebook entry is very concerning.

I find that the reasonable person in the community, fully armed with all the knowledge of this matter, would conclude that having a marked cruiser which had been damaged by an officer, inspected by an unauthorized mechanic without notifying a supervisor, is conduct which is likely to damage the reputation of the CPS. This type of behaviour has all the appearance of dishonesty, and/or an attempt to conceal the extent of the damage or that he was operating a CPS marked vehicle without having a proper driver’s licence.

41The appellant raised many of the same arguments about the Hearing Officer’s failure to properly consider the test for discreditable conduct as he did with respect to count 1 above. As we stated earlier, the Hearing Officer did in fact set out the test commonly used for discreditable conduct. There was no need for him to repeat it throughout the decision. His conclusion was reasonable and entitled to deference.

Count 5: Deceit

42The allegations underlying this count may be summarized as follows:

• The appellant misled Sgt. McLean by not informing him that he had personally observed the damage to the cruiser and that it had been examined by a licenced mechanic.

• The appellant made an inaccurate and misleading statement to Sgt. McLean when stating to him that he was unsure of the extent of the damage to the cruiser.

• The appellant omitted to inform Sgt. McLean that he did not have a valid licence on the day of the accident.

• The appellant made an inaccurate and misleading statement in the note he left for Mr. Pettinella (Cornwall Transit mechanic).

43The Hearing Officer wrote that based on the Commission’s decision in Lloyd and London Police Service, 1999 CanLII 31609 (ON CPC) he would have to be satisfied that the appellant “wilfully or negligently made a false, misleading or inaccurate statement pertaining to official duties with an intention to deceive”.

44The appellant was charged with deceit under section 2(1)(d)(ii) of the Code of Conduct which provides that an officer commits deceit if he or she “wilfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties”.

45The Hearing Officer referred to the Commission’s decision in Andrews v. Midland Police Service, 2003 CanLII 87663 (ON CPC), in which it upheld a finding of deceit when the officer’s statement to his Sgt. “clearly did not reflect what he knew and he failed to make full disclosure as he was required to do.”

46The Hearing Officer acknowledged that inaccurate or incomplete statements alone were insufficient to support a finding of deceit and that there had to be the intention to mislead or deceive. After reviewing in some detail the actions of the appellant, and in particular what he did not disclose to Sgt. McLean, he wrote the following:

I find that Cst. Wells was intent on suppressing the extent of the damage sustained to CPS marked cruiser #4 in an attempt to conceal that his driver’s licence was expired. This is not honest or genuine. Cst. Wells wilfully misrepresented facts by providing misleading or inaccurate statements related to his official duties with the intent to deceive Sgt. McLean.

47The appellant submitted that the Hearing Officer failed to analyze the evidence of Sgt. McLean who thought the appellant was being honest and genuine in his reporting. The Hearing Officer indicated that he did not concur with that assessment and reached his own conclusions on the totality of the evidence as he was entitled to do. Those conclusions were reasonably available to the Hearing Officer on the whole of the evidence. In particular, the failure of the appellant to disclose to Sgt. McLean of his having left the jurisdiction to have the cruiser examined by a licenced mechanic and what he learned during that examination support the conclusion that there was the intention to mislead.

48To conclude, the Hearing Officer’s finding of guilt on the count of deceit was reasonable and amply supported by the evidence.

III) The Reasonableness of the Penalty

49The Hearing Officer began his analysis of the appropriate penalty by stating some general principles historically applied in police discipline matters. He referred to the oft-quoted decision in Williams and Ontario Provincial Police, 1995 CanLII 15417 (ON CPC), in which the Commission wrote the following:

The assertion that Constable Williams can be useful or an asset to the Ontario Provincial Police after a finding of misconduct is argued by his counsel with reference to a number of prior decisions. For this to be the case though, three elements must be considered with reference to these cases: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police force that would occur should the officer remain on the force.

50He recognized the “fundamental proposition” that a disposition must be proportionate to the misconduct and that proportionality requires a “careful examination” of the standard disposition factors that may be mitigating, aggravating or neutral. The Hearing Officer also noted the importance of consistency of penalty, but, wrote that it was of “limited assistance” because of the unique nature of the matter. He considered the following nine disposition factors that he found were relevant:

• Public interest;

• Employment history;

• Nature and seriousness of the misconduct;

• Recognition of the seriousness of the misconduct;

• Ability to rehabilitate;

• Specific and general deterrence;

• Damage to the reputation of the police service

• Effect on the officer and his family and;

• Consistency of penalty.

51The appellant in oral argument submitted that the Hearing Officer made the following errors in deciding that dismissal was the appropriate penalty:

• Characterizing the misconduct as serious;

• Applying the harshest penalty available;

• Placing undue emphasis on the prior discipline;

• Refused to consider the potential for rehabilitation;

• Treatment of the character witnesses evidence;

• Analysis of specific deterrence and;

• Impact of his actions on the respondent.

52In reviewing the Hearing Officer’s reasons and the alleged errors in his analysis we are to bear in mind that our role is not to second-guess the Hearing Officer, whose assessment of and weight given to the factors is entitled to deference. Also, none of the disposition factors are 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 (Div. Ct.).

53The Hearing Officer agreed with the submission of the appellant that the misconduct for which he was found guilty was not “so egregious that on its own, it merits dismissal”. His analysis of the nature and seriousness of the misconduct is found at pages 14-20 of his decision. He reviewed what he termed to be the “multiple acts of dishonesty” committed by the appellant prior to and during his shift, from the time he learned that he did not have a valid licence to when he failed to inform Sgt. McLean that he took his cruiser out of the jurisdiction to be examined by a mechanic. He then wrote the following at pages 16-17:

Regardless, I am comfortable asserting it is behaviour which amounts to a significant aggravating factor. Police Officers, like everyone, make mistakes but a person with integrity would have notified his employer about the expired driver’s licence as soon as it became known. An honest person would have immediately notified a supervisor about the collision. Cst. Wells failure to do the right thing, as was clearly expected of him, is compounded by the fact that he was still fulfilling his sanction from previous misconduct. This dramatically affects the ability of his employer and his community to trust Cst. Wells to act with professionalism in the future.

Cst. Wells committed deceit; he misled his supervisor when he was not forthcoming with the full facts of his licence status, the collision and subsequent cruiser damage. Jurisprudence confirms that there are varying degrees of deceit; he did not lie to the public or commit perjury, he did not make a false report or false notes. There are other acts of deceit that are more serious than Cst. Wells’ misconduct and in fact, Ms. Bordeleau conceded if it were not for Cst. Wells’ previous misconduct, a sanction short of dismissal would likely have been sought.

54The appellant was found guilty of misconduct that raised questions about his honesty, integrity and trustworthiness. We agree with the respondent that the Hearing Officer’s conclusion that the misconduct was serious and an aggravating factor was reasonable and entitled to deference. Whether the penalty was unreasonably harsh requires a review of the other disposition factors.

55The appellant’s discipline history appears to have been the paramount factor leading to the Hearing Officer’s order. A brief summary of the facts behind that discipline is found at pages 12-13 of the decision where he wrote the following:

Following his guilty plea, Cst. Wells was found guilty of three counts of discreditable conduct, two counts of breach of confidence and two counts of neglect of duty. Cst. Wells recruited and became the primary handler for a female informant. Cst. Wells did not disclose to his employer that he had been friends with the confidential source. In breach of Cornwall Police Service policy, Cst. Wells introduced the confidential informant to members of his family, discussed personal business in the presence of the confidential informant, and engaged in a personal, intimate relationship with the confidential source between 2013 and 2015. It was determined that this behaviour may have endangered the safety of the confidential informant, members of her family, Cst. Wells, members of his family and other police officers.

During the relationship, Cst. Wells breached policy when he disclosed police business and/or internal procedures with the confidential informant. He breached policy further by not reporting dates and times of scheduled and unscheduled meetings with the confidential informant and by not making notebook entries about those meetings. Furthermore, Cst. Wells queried a vehicle and two persons on the Canadian Police Information Centre (CPIC) and on the internal Cornwall Police Service records system for purposes other than official police business and failed to make subsequent notebook entries. Cst. Wells also used the internal Cornwall Police Service records system for non-official business when he queried the name of the confidential informant and he failed to make a corresponding notebook entry.

Resulting from the previous misconduct, Cst. Wells received the most serious sanction short of dismissal; he was demoted from first-class constable to fourth-class constable. He was not demoted one level, he was demoted three levels and at the time, the hearing officer stated that if it were not for existing mitigating factors, he would have considered a more severe penalty. The only penalty more severe would have resulted in dismissal. The previous misconduct is a significant factor for consideration, it is recent, it is serious and in both incidents, Cst. Wells demonstrated a lack of honesty and integrity.

56Given the fact that the appellant had not even completed the demotion ordered by the previous hearing officer when he committed the additional misconduct, we see no errors in principle in the weight applied to that factor by the Hearing Officer.

57The appellant submitted that the Hearing Officer did not properly assess his rehabilitative potential. We disagree, as a fair reading ofthe decision makes it clear that the Hearing Officer did in detail review this factor.

58The Hearing Officer began his consideration of this factor at page 21 of his decision. He noted that the appellant “proved to be a productive and valued employee” following the earlier demotion. After reviewing the evidence of the character witnesses, he wrote the following:

One witness officer testified that Cst. Wells makes Cornwall a safer city when he is working. That was a consistent theme and based on the character evidence, I do not dispute Cst. Wells’ dedication, his passion for his job, his work ethic, or his commitment to policing. Unfortunately, these are not traits essential to the job, honesty and integrity are and this is what I am left questioning; can Cst. Wells be trusted to do the right thing during times of ambiguity?

59The Hearing Officer answered his question at pages 25-26 of the decision where he wrote the following:

I recognize it is likely Cst. Wells would continue to be a hard worker if he returned to his position, but, similarly, his character is also unlikely to change. Cst. Wells has repeatedly demonstrated a lack of honesty and integrity. He was fully prepared to engage in unethical behaviour in response to the circumstances he faced. There is no reason to believe that he will suddenly employ the essential attributes, being honesty and integrity, when faced with a similar predicament in the future; he simply can no longer be trusted to do the right thing. Consequently, Cst. Wells has nullified his usefulness as a police officer

60The common theme throughout the decision of the Hearing Officer is the need for police officers to have honesty, integrity and trustworthiness. We see no basis for us to decide that the Hearing Officer made an error in principle in his consideration of the appellant’s ability to be rehabilitated.

61We also do not see any error in principle in the Hearing Officer’s assessment of the character evidence. In fact, despite his concerns about some of the evidence presented, he accepted much of it, especially with respect to the appellant’s work performance.

62The Hearing Officer did consider the factor of general deterrence and the appellant has not suggested that he did so unreasonably. The Hearing Officer wrote that given his conclusion as to the appellant’s usefulness as a police officer, there was no need to consider specific deterrence. We see no error in his doing so.

63The Hearing Officer found that the damage to the reputation of the respondent was an aggravating factor. He wrote the following at page 26 of the decision:

The likely damage to the reputation of the Cornwall Police as a result of Cst. Wells’ behaviour is obvious. It is my position that if the public became aware of his misconduct while fully apprised of Cst. Wells’ previous misconduct, they would be shocked if he maintained his employment. If Cst. Wells received a sanction less than dismissal, the potential damage to the reputation of the Cornwall Police Service would be substantial; the public expects sanctions to be fitting so their trust can be re-instilled, helping to repair the damage done to the reputation of the Cornwall Police Service.

64While we don’t necessarily agree that the public would be “shocked”, the conclusion that the potential for damage was an aggravating factor was reasonable.

65The final point for our consideration is the appellant’s submission that the Hearing Officer failed to apply the principle of consistency of penalty citing Stitt and York Regional Police, 1997 CanLII 22038 (ON CPC) and Suleiman v. Ottawa Police Service and Lord, 2011 ONCPC 10. The Hearing Officer distinguished Stitt as the officer had no prior discipline record. In Suleiman, the officer had a record of 7 previous misconduct findings. The penalty ordered by the Commission was the forfeiture of 8 days or 64 hours pay after what was, in effect, a joint submission. The Hearing Officer wrote that “The greatest disparity in these cases is the seriousness of Wells’ previous misconduct, where he already essentially, received his second chance”. The second chance was the prior demotion to 4th class constable.

66Consistency of penalty is an important factor for a hearing officer to consider, but it is just one of the up to 13 factors to be considered, and none should be given greater priority over others: see Husseini, cited above, and Krug and Ottawa Police Service, 2003 CanLII 75460 (ON CPC). It was incumbent on the Hearing Officer to consider and then weigh the disposition factors that were relevant. Aggravating and mitigating factors can vary widely.

67In Orser v. Ontario Provincial Police, 2018 ONCPC 7, the Commission wrote the following:

We 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 over time. 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.

68To conclude, we find that the Hearing Officer did not make such errors in principle that would justify our interfering with the penalty he imposed.

ORDER

69Pursuant to s. 87(8)(a) of the PSA, the Commission confirms the findings of guilt on the misconduct charges and the penalty imposed by the Hearing Officer.