TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Reeves v. London Police Service, 2021 ONCPC 3

Date: February 24, 2021

File: 19-ADJ-010

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. Wesley Reeves

Appellant

and

London Police Service

Respondent

DECISION

Panel: D. Stephen Jovanovic, Associate Chair Laura Hodgson, Vice Chair Theodore Crljenica, Vice Chair

Representatives: For the Appellant: Gary Clewley, counsel For the Respondent: Lynda A. Bordeleau and Patty Malone, counsel

Place and date of Videoconference – Toronto, Ontario

Hearing: May 12, 2020

INTRODUCTION

1This appeal arises from the decision of Superintendent (Ret.) Greg Walton (the Hearing Officer) dated October 21, 2019 where he ordered that the appellant be dismissed from the respondent in seven days, unless he resigned before that time.

2The appellant had pleaded guilty to one count of insubordination and four counts of discreditable conduct. These charges may be summarized as follows:

Insubordination: Between August 18, 2015 and December 27, 2016 the appellant without lawful excuse repeatedly disobeyed, omitted or neglected a lawful order by utilizing his access to the CPIC (Canadian Police Information Centre) database for personal reasons contrary to the CPIC policy manual, and London Police Service procedure contrary to s. 2(1)(b)(ii) of the Code of Conduct, O. Reg. 268/10.

Discreditable Conduct: Between June 1, 2015 and October 31, 2016, the appellant acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the London Police Service. Namely, he consumed cocaine. His conduct was contrary to s. 2(1)(a)(xi) of the Code of Conduct.

Discreditable Conduct: Between June 1, 2015 and October 31, 2016 the appellant acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the London Police Service. Namely, he consumed cannabinoid delta-9-tetrahydrocannabinil (THC). His conduct was contrary to s. 2(1)(a)(xi) of the Code of Conduct.

Discreditable Conduct: Between June 1, 2015 and October 31, 2016 he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the London Police Service. Namely, he utilized non-prescription anabolic steroids. His conduct was contrary to s. 2(1)(a)(xi) of the Code of Conduct.

Discreditable Conduct: On September 27, 2015 he acted in a disorderly manner prejudicial to discipline or likely to bring discredit upon the reputation of the London Police Service. Namely, he requested a fellow officer to have a lawfully issued Provincial Offences Notice voided to assist a person known to him personally. His conduct was contrary to s.2(1)(a)(xi) of the Code of Conduct.

3The appellant pleaded guilty to these charges and the hearing proceeded on the basis of an Agreed Statement of Fact. The Hearing Officer found the appellant guilty of all of the above counts and concluded that he had nullified his usefulness to the respondent and ordered his dismissal failing his resignation.

DISPOSITION

4For the reasons that follow, we confirm the decision of the Hearing Officer.

OVERVIEW

5The appellant had been an officer with the respondent since January 2012. While married and living with his wife, he began a relationship with S.D. in 2015. He began living with S.D.in a home he rented in 2016 while telling his wife that he was in a full-time residential treatment program. His relationship with S.D. continued until March 2017. In September 2017, the appellant was diagnosed with mild to moderate post-traumatic stress disorder (PTSD).

6He ran unauthorized CPIC enquiries on four relatives and a friend of S.D. for "personal purposes", which enquiries led to the insubordination charge. The first three discreditable conduct charges related to the appellant's drug use and possession.

7In April 2017, the Waterloo Regional Police Service began a criminal investigation of the appellant. When interviewed by an officer of that Service, the appellant admitted to the repeated use of cocaine over an 18-month period in the course of his relationship with S.D. He subsequently admitted this possession and use of cocaine when interviewed by a member of the respondent's Professional Standards Branch (PSB). The Hearing Officer accepted that the appellant did not have an addiction to cocaine which was related to his alcohol consumption.

8During those two interviews, the appellant also admitted to the use and possession of non-medically prescribed marihuana.

9As part of the Waterloo Police Service investigation, S.D. recorded the appellant admitting to the use of non-prescribed steroids which would have been an offence contrary to the Controlled Drugs and Substances Act (CDSA). He subsequently admitted to the possession and use of the steroids during an interview with the respondent's PSB.

10The final discreditable conduct charge related to the appellant requesting that a fellow officer void a Provincial Offences Notice issued to the sister of S.D. for the use of a handheld communication device while operating a motor vehicle. That officer did as the appellant had requested.

11The Hearing Officer began his analysis of the appropriate penalty to be applied by quoting several passages from the Ontario Police Services Act, Fully Annotated, P. Ceyssens and S. Childs, (B.C. Earlscourt, 2017). He recognized that the penalty, or disposition, must be proportionate to the misconduct and that three decisions must be made by a hearing officer in arriving at the appropriate disposition. First, the relevant dispositional factors should be identified. Second, those factors must be assessed as being mitigating, aggravating or neutral. Third, proper weight must be assigned to these factors.

12The Hearing Officer identified the following dispositional factors as being relevant and assessed their impact on his decision:

• public interest
• deterrence
• employment history
• nature and seriousness of the misconduct
• recognition of the seriousness of the misconduct
• ability to rehabilitate
• damage to the reputation of the Police Service
• consistency of penalty
• effect on the officer and his family

13The Hearing Officer recognized that the appellant had suffered from PTSD and attended Homewood Health Care from September 5, 2017 to October 10, 2017. He was clearly troubled by the fact that the Homewood Discharge Summary noted that a urine test administered the day after the appellant's admission was positive for cocaine. The Hearing Officer wrote: "I find it troubling that even after becoming the subject of a criminal investigation and being charged accordingly, Constable Reeves was still using cocaine."

14The Hearing Officer also found it concerning that the appellant's counsel at the hearing made no submissions indicating that the appellant complied with any of the recommendations in the Discharge Summary which included the following:

• Maintain abstinence from all mood-altering substances.
• Attend 90 meetings in 90 days and maintain connection with 12-step recovery supports in the community by way of home group and sponsor.
• Maintain structured daily program as outlined by his discharge planner.
• Connect with family physician and seek medical advice before any self-medication.
• Recommend ongoing outpatient support with a psychologist to work on PTSD and trauma related struggles.
• Deal with prescribed medication.
• Return to Phase III at Homewood for ongoing addiction aftercare.

15The Hearing Officer conducted a lengthy analysis of the cases presented to him dealing with disciplinary penalties and considered that the range of penalties was from a lengthy demotion to a dismissal. He ultimately decided on dismissal, writing the following:

I find the seriousness of Constable Reeves' misconduct to be so egregious, that for him to return to employ as a police officer would cause irreparable harm to the London Police Service and he has not demonstrated an ability to rehabilitate.

16We shall now turn to the issues raised by the appellant.

ISSUES

I) The appellant's motion to admit fresh evidence on appeal

17Mr. Clewley, who was not the appellant's counsel at the hearing, brought a motion on behalf of the appellant, requesting that we permit the filing of fresh evidence that was not before the Hearing Officer.

18Section 87(5) of the Police Services Act provides that a hearing before the Commission shall be an appeal on the record but that "...the Commission may receive new or additional evidence as it considers just." The Commission has in previous decisions applied the traditional four-part test for the admission of fresh evidence on appeal as set out in R. v. Palmer, 1979 CanLII 8 (SCC), which is as follows:

1. The evidence should generally not be admitted if, by due diligence, it could have been obtained at trial provided that this general principle will not be applied as strictly in a criminal case as in a civil case;

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

3. The evidence must be credible in the sense that it is reasonably capable of belief, and;

4. It must be such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.

19In Bernardon and Windsor Police Service, 2017 CanLII 37593 (ON CPC); judicial review application dismissed 2019 ONSC 764, the Commission wrote the following:

The Palmer test cannot be strictly applied in the circumstances of this case. All of the proposed evidence could have been provided had the matter proceeded to a hearing either on the merits of the charge or as part of the submissions during the penalty phase of the proceeding. Palmer is a case involving the admission of evidence in criminal proceedings where the rules of evidence and procedure are necessarily more rigid than in administrative proceedings. Sections 2 and 15 of the Statutory Powers and Procedure Act, allow for a more liberal approach to both evidence and procedural matters. In our view, where the proposed fresh evidence goes to the fairness of the hearing process, in this case specifically the voluntariness of the appellant's guilty plea, the interests of justice would best be served by allowing its introduction. The hearing process includes the penalty phase. Once evidence is accepted, it should be considered on all issues. Accordingly, we allow the fresh evidence pursuant to our discretion under section 87(5) of the PSA.

20The appellant proposes to introduce the following as fresh evidence:

1. Report of Dr. J.R. Ferrari, Psychologist, dated March 21, 2020. Dr. Ferrari saw the appellant for the first time in January 2020 and five times afterwards. It appears that he would be qualified to give opinion evidence as an expert in PTSD. His report outlined three traumatic incidents the appellant endured or witnessed and relates his substance abuse and associated conduct to PTSD.

2. Report of Dr. Greg Jaychuk, Psychiatrist, dated February 19, 2020. He too relates the conduct of the appellant to PTSD and not a character flaw, as found by the Hearing Officer.

3. Note from Dr. Mustaq, C.Psych.,a staff psychologist with the respondent, dated March 17, 2020 approving the appellant's participation in the Project Trauma Support program dedicated to the treatment of PTSD.

4. Report of William McIntosh, MSW and RSW, dated December 10, 2019. He saw/counselled the appellant on 13 occasions from April 2017 to March 2019. He noted the appellant's acceptance of responsibility for his actions which was a sign of the potential for rehabilitation.

5. A note in a chart from the London Health Sciences Centre dated December 8, 2017 and February 2, 2018 indicating that the appellant did attend the mental health unit of the hospital after his discharge from Homewood to seek assistance for PTSD.

21In partial response to the above material, the respondent relied on an affidavit from Samantha Santos, an employee, dated May 5, 2020 which attested to the efforts counsel for the respondent attempted to determine if the appellant's then counsel would be presenting medical evidence. These efforts began with an email from Ms. Malone dated August 1, 2019. On August 19, 2019 Ms. Malone sent another email to the appellant's then counsel enquiring if medical evidence would be presented and if a conference call should be arranged with the Hearing Officer to discuss that issue.

22A response to that email came from an assistant with the appellant's then counsel indicating that an expert would not be retained but that medical evidence would be presented through oral testimony. A conference call with counsel and the Hearing Officer was held on August 22, 2019 during which the then counsel for the appellant confirmed that he would not be calling expert evidence because he did not want to incur the expense of calling such evidence to support the mitigating effect of the PTSD.

23The Hearing Officer then emailed counsel for the parties stating that the appellant could testify about his PTSD diagnosis which evidence could be supported with expert or medical reports. None of the reports set out above was tendered by the appellant.

24The appellant readily acknowledges that his "mental health and whether or not it influenced his misconduct was a critical issue." The actions of his then counsel in not tendering any expert evidence on what in fact was critical issue could only have been explained by the apparent unwillingness of the appellant or someone on his behalf to incur the expense of obtaining such reports.

25The appellant at paragraph 11 of his factum on the fresh evidence motion notes that the Hearing Officer in effect criticized the appellant for failing to follow up on the Homewood recommendations. He submits that the report from Mr. McIntosh "says otherwise". He writes the following:

The Hearing Officer called it "a lost opportunity for Constable Reeves to demonstrate his commitment to recovery." The real lost opportunity lay in the failure of defence counsel to put this material before the Hearing Officer in the expectation that a different conclusion be reached regarding the Appellant's efforts to rehabilitate himself.

26In Bernardon, the issues before the Commission were the competency of defence counsel and the voluntariness of the officer's plea of guilty. Neither of these issues were before the hearing officer in Bernardon as they could effectively only be raised after the hearing was concluded.

27In this matter, the competency of defence counsel at the hearing stage is not a formal issue or ground of appeal although it has been indirectly faulted. As the appellant's new counsel stated, the "decisive" issue was the relationship between the PTSD and the appellant's admitted misconduct. The appellant was represented by counsel when submissions as to penalty were made to the Hearing Officer. There is no suggestion that counsel did not have every opportunity to obtain the type of expert evidence that is now sought to be admitted, after it cannot be countered by the respondent.

28There does not appear to be any reason, other than an unwillingness to incur the expense, why the appellant could not have been assessed by Dr. Ferarri or Dr. Jaychuk before the hearing and either their reports or their oral evidence presented before the Hearing Officer.

29Returning the four-part test set out in Palmer, the appellant concedes that the materials he now seeks to have admitted as evidence do not meet the first part. He blames the lack of diligence and the inexperience of his then counsel for underestimating the importance of the evidence. The Commission has ruled in the past that a party seeking to adduce fresh evidence before the Commission must meet all four parts of the test: see Acton v. Cavanaugh, Graff and Durham Regional Police Service, 2013 ONCPC 6; Mulholland v.Peel Regional Police Service, 2014 ONCPC 8 and; Adam Nobody v. Babak Andali-Goortani and Toronto Police Service, 2017 CanLII 44994 (ON CPC). In the Adam Nobody decision the Commission wrote the following at para. 16:

The appellant was represented by experience counsel throughout the original hearing and he had the opportunity to present whatever evidence he thought was helpful to his position. An appeal to the Commission is not a second chance to make up and perceived shortcoming's in a party's case. The due diligence test was designed, in part, to strictly control any such attempts.

30However, as set out above, the Commission in Bernardon granted some leeway in requiring all four parts of the test to be met although counsel for the responding party did not object to the introduction of that evidence.

31In this matter, parts two and three of the test appear to have been met. We are not satisfied that part four has been met. None of the proposed fresh evidence indicates that the appellant was fit to return to work, which would have been the case had the Hearing Officer ordered a demotion. The proposed evidence does not indicate that the appellant in fact complied with the Homewood recommended treatment plan in the discharge summary. It would correct the Hearing Officer's misunderstanding as to the appellant's rehabilitation efforts, but only to a very limited extent. There is no indication that, as pointed out by the Hearing Officer, the appellant attended the 90 meetings in 90 days or maintained connection with the 12 step recover supports. Given the seriousness of the appellant's misconduct and the lack of a prognosis for a safe return to work by the appellant, we are not satisfied that the fourth part of the test has been met.

32The rehabilitation of the appellant was only one of the factors for the Hearing Officer to consider and accordingly we cannot say that the introduction of these materials would have necessarily affected the ultimate result.

33However, we do retain the ultimate discretion under s. 87(5) of the PSA to admit such additional evidence as is just. In our view it would not be just, taking into account the positions of both parties, to now admit that evidence, given all of the circumstances. In particular, counsel for the appellant before the Hearing Officer made the conscious decision not to file any additional evidence. There may have been tactical reasons for doing so, in addition to financial ones, but we cannot speculate on these reasons. Counsel was content to proceed with the ASF and the Homewood discharge summary. The appellant did not give evidence as to his subsequent treatment. If the additional evidence were to be admitted at this stage, the respondent would be deprived of the opportunity to cross-examine the authors of the reports or obtain responding evidence. In our view, it would frustrate the hearing process to now allow that evidence, given the position of the appellant's counsel at the hearing on the critical or decisive issue before the Hearing Officer. Accordingly, the appellant's motion is dismissed.

II) The standard of review

34The standard of review traditionally applied by the Commission to a 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 at paras. 61-63. Questions as to whether the facts satisfy a legal test are questions of mixed fact and law and are also to be reviewed on the standard of reasonableness unless there is an extricable question of law to be reviewed: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53.

35On the issue of penalty, the standard of review is reasonableness. The Divisional Court in Karklins v.Toronto (City) Police Service, [2010] ONSC 747 approved of the following statement from an earlier Commission decision:

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 a clear error in principle or relevant material facts are not considered. This is something not done lightly.

36In Kobayashi and Waterloo Regional Police Service, 2015 ONCPC 12, the Commission summarized its function on a penalty as follows:

[T]he 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.

37The appellant cites the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and submits that the standard of review is reasonableness. This decision is very instructive on what constitutes a reasonable or unreasonable decision but we do not consider that it otherwise changed the standard of review decided in Diafwila and subsequently applied by the Commission as set out above. The respondent has also taken the position that the standard of reasonableness adds that even if the appellate standard were applied, the end result would be the same.

III) Analysis of the penalty imposed

38The appellant submits that the Hearing Officer properly set out the principles he was required to apply in determining an appropriate penalty but then proceeded to violate many of those principles. He submits that the Hearing Officer, in effect, failed to properly, or reasonably assess the nine factors commonly used by hearing officers as listed in para. 10 above. He once again attributes some blame to his counsel at the hearing for how he dealt with the dispositional factors.

39While not all of the dispositional factors were dealt with in oral argument, we shall deal with them as raised in the appellant's factum.

40The appellant first submits that the Hearing Officer failed to determine the appropriate range of possible penalties. According to the appellant the Hearing Officer's task was to decide between two severe sanctions, dismissal or a significant demotion. The prosecution pressed for a dismissal while the appellant's counsel submitted that a demotion and loss of hours should be imposed, without specifying the length of the dismissal or the amount of hours. The appellant submits that his counsel offered no real alternative to dismissal and that the Hearing Officer should have questioned his counsel to elicit more precise submissions. We disagree.

41Under the heading Nature and Seriousness of the Misconduct, which will be discussed further later in these reasons, the Hearing Officer did establish a range of penalties writing the following:

In viewing the conduct of Officer Reeves in totality, I find that his behavior warrants a significant lengthy demotion in rank at minimum, or dismissal, dependent upon all the pertinent mitigating and/or aggravating factors.

42In our view, based on the evidence before him of the five counts of misconduct that was a reasonable range of potential penalties. The Hearing Officer conducted a fairly detailed review of the caselaw submitted to him by both counsel and the submissions made by the appellant's counsel. We do not consider it to have been incumbent on the Hearing Officer to ask the appellant's counsel for his view of the length of the proposed demotion when in effect, that was what he did with his presentation of the cases. The appellant in his factum and oral argument before us submitted that a demotion of unspecified duration with conditions should be substituted for the dismissal.

43The appellant next submits that the Hearing Officer committed a palpable error in law in his analysis of specific deterrence and remorse. Although the Hearing Officer's reasons could have been somewhat clearer on certain points, especially regarding specific deterrence, he did write that the appellant should be "accorded significant mitigation for readily acknowledging his misconduct and entering a guilty plea." However, he also wrote that in view of the lack of an apology to the tribunal or the respondent, which was not an aggravating factor, the appellant would not receive the mitigation associated with "sincere" remorse.

44The Commission wrote the following in Kobayashi, cited above:

The Hearing Officer is entitled to consider the circumstances surrounding the guilty plea and apology when determining the level of mitigation, if any, to attribute to them. Surrounding circumstances include the timing of the apology and the strength of the case against the accused. A guilty plea or apology does not result in automatic unqualified mitigation (citations omitted).

45Given the significant mitigation accorded to the appellant for acknowledging his misconduct and pleading guilty we see no error in the Hearing Officer not giving additional mitigation because there was no apology.

46The appellant submits that the Hearing Officer misapprehended his employment history and did not properly weigh this factor. The appellant's counsel had submitted his Performance Appraisal Reports which were reviewed by the Hearing Officer who noted the positive commentary especially in the final report leading up to the appellant's promotion to the rank of first-class constable. The Hearing Officer did give only minimal mitigation for what he termed as average evaluations during a five year career, with repeated acts of misconduct committed over 18 months. The Hearing Officer stated that he would have considered increased mitigation had the appellant enjoyed an "exemplary lengthy career."

47As stated in Ceyssens "a significant period of employment, unblemished by misconduct, constitutes a strong mitigating factor." The appellant before us had a short career that was blemished by misconduct. In any event it is not our function to reweigh the factors given to employment history, especially when the history was in fact viewed as being positive. In Husseini v. York Regional Police Service, 2018 ONSC 283 the Divisional Court wrote the following in response to a similar argument:

As she had before the OCPC, the Applicant submitted to this Court that the decision of the OCPC was unreasonable in accepting the characterization by the Hearing Officer of her employment record as average. However, it is not the role of the OCPC nor of the Court to look at her Performance Appraisals and substitute its own conclusion as to the quality of her employment record. In accordance with its jurisdiction, the OCPC appropriately deferred to the findings of the Hearing Officer as to the quality of the Applicant's service record. Similarily, the OCPC deferred to the findings of the Hearing Officer as to the Applicant's ability to reform or to be rehabilitated. In any event, there was evidence on which the Hearing Officer could find that the Applicant's performance could be described as average. We find no basis to interfere with those conclusions reached by the OCPC.

48The appellant submitted that the Hearing Officer erred when referring to his being "outed" for his drug use while considering the ability to rehabilitate. The appellant did admit to using illegal drugs during the course of the investigation by the Waterloo Police Service. The Hearing Officer stated that the drug use was "found out" during the investigation. Whether this amounted to an "outing" is in our view a matter of semantics, as opposed to any error of fact or law. In the same paragraph of his decision, the Hearing Officer also commended the appellant for addressing this issue by receiving counselling.

49The appellant also criticized the Hearing Officer for relying on the reference in the Homewood discharge summary to his use of cocaine for three years whereas the ASF set out the use of cocaine over a 16 month period. The Homewood discharge summary was part of the evidentiary record before the Hearing Officer and we see no error in his referring to it. Even if he did so in error, the difference in the time periods would not have changed the ultimate result in light of the totality of the record.

50The appellant further submits that the Hearing Officer erred in proceeding in the absence of a sufficient record. The Hearing Officer expressed his concern with not having received any submissions from the appellant's counsel as to his compliance with the Homewood recommendations. He wrote the following:

This void of information concerning his aftercare program for the past two years is troubling. If Constable Reeves was truly committed to his rehabilitation, why am I not in receipt of information specific to him conforming with the recommendations?

51The appellant submits that the Hearing Officer should have reopened the hearing to fill this void of information and that the failure to do so on its own invalidates the decision. We accept that a hearing officer has the discretion to notify a party about a perceived deficiency in the evidence. However, we have not been provided with any authority in support of the proposition that not doing so is an error. The Hearing Officer drew an inference from the lack of evidence and the lack of submissions. It was a failure on the part of his counsel to address an obviously important point. Whether this happened deliberately or unintentionally does not create an error on the part of the Hearing Officer for not second-guessing counsel's presentation of the defence and reopening the case.

52The appellant's final submissions relate to the alleged failure of the Hearing Officer when dealing with the principle of consistency of penalty, the importance of which was acknowledged but, according to the appellant, not applied by the Hearing Officer.

53Consistency of penalty has been referred to in the caselaw as the "earmark of fairness". We agree with its importance in considering the imposition of a penalty, with two qualifications. First, consistency of penalty is not an absolute principle carved in stone. Second, it is rare for there to be identical cases that establish with certainty what a penalty will be in any given case. This is why a hearing officer usually decides on an appropriate range of penalties then tailors the penalty to the situation before her or him. Hearing officers often consider some or all of the 13 factors set out in Ceyssens and apply different weight depending on the officer's personal circumstances and the nature of the misconduct. This case amply illustrates the difficulties faced by a hearing officer in attempting to find the perfect comparator situation. That is one reason why ultimately the question to be answered is whether the penalty imposed was in all of the circumstances reasonable.

54The appellant in his factum reviewed the penalties imposed in other cases segregating the misconduct into the following categories, consistent with the his offences: CPIC abuse (23 incidents); illegal drug use (marihuana, cocaine and steroids) and; requesting that the PON be voided (for a relative of S.D.). He also criticized the Hearing Officer's treatment of what he referred to as the Mcneil issue.

55We have considered the authorities cited by the appellant in support of his submission that the Hearing Officer did not apply a penalty consistent with other penalties in similar cases. The Hearing Officer, in our view, fairly and in some detail reviewed the cases presented to him by both parties, along with the submissions of counsel. He referred to the similarities and the differences in the cases. He drew the following conclusions:

The lengthy and repeated behavior exhibited by Constable Reeves has severed the trust of his employer and the public, he has nullified his usefulness as a member of the London Police Service. I gave serious consideration to a lengthy demotion in rank in conjunction with a term of random drug testing, but unfortunately, Constable Reeves has not convinced me that he has the ability to reform and the seriousness of the misconduct warrants his dismissal from the London Police Service.

I find the seriousness of Constable Reeves' misconduct to be so egregious, that for him to return to employ as a police officer would cause irreparable harm to the London Police Service and he has not demonstrated an ability to rehabilitate.

56The Hearing Officer found that the appellant's misconduct would damage the reputation of the respondent in the eyes of the community members and that this was an aggravating factor that could only be mitigated by a significant sanction.

57After reviewing the parties' submissions on the nature and seriousness of the misconduct, the Hearing Officer concluded that the conduct of the appellant, in totality, warranted a significant demotion in rank or dismissal, dependent upon all the pertinent mitigating or aggravating factors.

58The Hearing Officer, in considering the public interest, weighed it as a substantial aggravating factor. This conclusion has not been challenged by the appellant.

59To summarize, the Hearing Officer reviewed the totality of the appellant's misconduct, weighed the various disposition factors, established a range of penalties, considered the authorities and submissions of the parties, then decided that dismissal was warranted. We cannot say that his decision is unreasonable and are not satisfied that the penalty of dismissal was inconsistent with any precedents established, given the five findings of misconduct.

ORDER

60The appellant's motion to allow fresh evidence is dismissed and the decision of the Hearing Officer dated October 21, 2019 ordering the dismissal of the appellant unless he resigns within seven days of the date hereof is confirmed.