TRIBUNALS ONTARIO
Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission civile de l’Ontario sur la police
Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Cst. Noel Santiago
Appellant
and
Peel Regional Police
Respondent
DECISION
Panel:
D. Stephen Jovanovic, Associate Chair
Jeanie Theoharis, Vice-Chair
Laura Hodgson, Vice-Chair
Appearances:
Joseph Wilkinson, counsel for the appellant
Sharon Wilmot and Jovana Orabovic, counsel for the respondent
Place and date(s) of hearing:
Videoconference - Toronto, Ontario
May 14, 2020
Introduction
1The appellant has appealed two decisions of Superintendent Colleen Fawcett (the Hearing Officer). In the first decision, dated November 30, 2018 the Hearing Officer accepted the appellant’s guilty plea to two counts of Discreditable Conduct and found him guilty of one count of Deceit. In the second decision, dated July 18, 2019, the Hearing Officer ordered that the appellant could resign from his employment with the respondent within 7 days, failing which his employment would be terminated.
2The three counts of misconduct were set out as follows in the first decision:
Count one: Discreditable Conduct
It is alleged that Constable Santiago committed Discreditable Conduct in that between July 31st, 2013 and February 6th, 2017 he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Peel Regional Police constituting an offence against discipline; Discreditable Conduct as prescribed in section 2(1)(a)(xi) of the Code of Conduct, Regulation 268/10, as amended.
Count two: Discreditable Conduct
It is alleged that Constable Santiago committed Discreditable Conduct in that between January 27th, 2014 and February 6th, 2017 he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Peel Regional Police constituting an offence against discipline; Discreditable Conduct as prescribed in section 2(1)(a)(xi) of the Code of Conduct, Regulation 268/10, as amended.
Count three: Deceit
It is alleged that Constable Santiago committed Deceit in between February 8th, 2017 and September 7th, 2017 wherein he wilfully or negligently made a false, misleading, or inaccurate statement pertaining to official duties constituting an offence against discipline; Deceit as prescribed in section 2(1)(d)(ii) of the Code of Conduct, Regulation 268/10, as amended.
3An Agreed Statement of Fact (the ASF) was filed with the Hearing Officer and was the basis for the findings of guilt on the two counts of Discreditable Conduct. As stipulated in the ASF, the appellant submitted an online claim for chiropractic services to Sun Life rendered by Dr. Jodi Robertson on February 6th, 2017, which claim triggered a random audit of all claims submitted by the appellant. It was determined that the appellant had submitted 48 unsupported/false claims resulting in a payment to him by Sun Life of $2,855.00 for services that he and/or his wife did not receive from Dr. Robertson. The appellant was charged with one count of Fraud under $5,000.00 under the Criminal Code, but that charge was withdrawn when the appellant pleaded guilty to making a false statement under the Insurance Act. The findings were the bases for the appellant’s plea of guilty to the first count of Discreditable Conduct.
4The appellant was also charged with one count of Fraud Under $5,000.00 under the Criminal Code for 31 unsupported/false claims totaling $2,418.00 once again paid to him by Sun Life for services he or his wife did not receive from Ms. West, a registered Massage Therapist. This charge was withdrawn when the appellant pleaded guilty to making a false or misleading statement under the Insurance Act.
5The charge of Deceit arose from receipts and claims the appellant submitted for massage or chiropractic services from an individual named Ranjith Thanguran, who according to the prosecution did not actually exist. The prosecution filed an affidavit, on consent, from Detective Sgt. Susan Gray outlining her unsuccessful efforts to locate Mr. Thanguran. She conducted a driver’s licence search with the Ministry of Transportation, as well as searches with the College of Massage Therapists and the College of Chiropractors. She used internal police systems but could not identify anyone named Ranjith Thanguran. The receipts provided by the appellant did not have an address or a phone number for Mr. Thanguran. The appellant was subjected to a compelled interview by the respondent, but he was unable to provide any information, such as a phone number or address, that could assist in locating or establishing the existence of Mr. Thanguran.
6Three witnesses testified for the appellant: his mother, Samadeara Santiago, his wife, Natasha Santiago, and a friend, Chanpreet Sandhar. They all testified as to their encounters with Mr. Thanguran. Their evidence, largely rejected by the Hearing Officer, will be referred to below. The appellant did not testify, as was his right. The Hearing Officer concluded that the compelled statement and receipts provided by the appellant, ostensibly from Mr. Thanguran, were fictitious and made by him with the wilful intention to deceive.
7The Hearing Officer, in her 32 page decision on penalty, conducted a detailed review of the caselaw provided by the parties and their submissions on the factors to be considered by her in assessing the misconduct of the appellant.
Her conclusion was as follows:
I have considered the limited employment history, and reference letters of Constable Santiago, and weighed that against the seriousness of the offences and the potential damage to the reputation of the Service. I conclude that Constable Santiago has expended and made worthless any potential for rehabilitation. When those chosen to protect and serve the public fall short of the public’s expectations, the confidence is eroded and the officer must be held accountable. Constable Santiago’s misconduct undermined the public interest and betrayed the people’s trust which ultimately affects the public’s confidence in the Service, and that of our policing partners. An officer whose misconduct has undermined the trust between himself, the Service, and the community has demonstrated very clearly that he is not fit to remain an employee and lacks suitability to be a police officer. From the evidence and submissions of the Prosecution, and the Defence, I find that Constable Santiago no longer has a contribution to make to the Service, and the community of the Region of Peel as a police officer.
Disposition
8For the reasons that follow, the decisions of the Hearing Officer are confirmed and the appeal dismissed.
9We shall now turn to the issues at play in the appeal.
ISSUES
10The issues raised by the appellant may be summarized as follows:
I) What is the standard of review to be applied by the Commission?
II) Did the Hearing Officer err in discounting the evidence of the defence witnesses?
III) Did the Hearing Officer improperly take judicial notice of facts?
IV) Did the Hearing Officer improperly discount defence evidence because of the appellant’s failure to testify or provide evidence in the investigation?
V) Was the penalty of termination harsh and excessive or based on an error in principle?
ANALYSIS
I) What is the standard of review to be applied by the Commission?
11The standard or review traditionally applied by the Commission hearing an appeal from the decision of a hearing officer has been 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 are to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53.
12On 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 taken 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 where there is a clear error in principle or relevant material facts are not considered. This is something not done lightly.
13In 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 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.
14Findings of fact and credibility assessments made by a hearing officer are owed particular deference by the Commission: Biring v. Peel Regional Police Service, 2021 ONCPC 2 and the cases cited at para. 22.
15The appellant suggested in oral argument that the appellate standard of review, i.e., palpable and overriding error, may apply to questions of fact or mixed fact and law where there is no extricable question of law. In our view, if that were the standard of review the result in this matter would be the same. As Stratas J.A. wrote in Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46:
Palpable and overriding error is a highly deferential standard of review…”Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the case. When arguing overriding and palpable error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.
II) Did the Hearing Officer err in discounting the evidence of the defence witnesses?
16The appellant submits that the Hearing Officer’s analysis of the evidence was seriously flawed and that she employed illogical reasoning in arriving at her conclusion that the defence evidence was the product of collusion. The appellant further submits that the Hearing Officer made numerous errors in her consideration of the defence evidence including the following:
Conducted a piecemeal analysis of the evidence and an unbalanced scrutiny of the defence and prosecution evidence;
Applied an uneven level of scrutiny to the prosecution and defence evidence which led to an inadequacy of reasons;
Erred in applying a “common sense” approach to the evidence of Natasha Santiago, the appellant’s spouse;
Erred in concluding that the evidence of Samadeara Santiago, the appellant’s mother was irrelevant; and
Erred in discounting entirely the evidence of Chanpreet Sandhar, an acquaintance of the appellant’s.
17The Hearing Officer began her analysis of the evidence presented by the prosecution and the three defence witnesses by restating the standard or proof in disciplinary proceedings under the Police Services Act (the PSA) i.e. clear and convincing evidence as confirmed in Penner v. Niagara (Regional Police Services Board), (2013) SCC 19 and subsequently in Jacobs v. Ottawa (Police Service), 2016 ONCA 345. She stated that this standard meant “weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to a fair and reasonable conclusion that the officer is guilty of misconduct.” She then reviewed in detail the defence evidence of Samadeara Santiago, Natasha Santiago and Chanpreet Sandhar.
18Samadeara Santiago testified that she was at an unidentified mall some four or five years earlier with her husband when she met Mr. Thanguran for the first time. They talked for about half an hour before Mr. Santiago gave Mr. Thanguran their phone number and address, inviting him to visit for tea. Mr. Thanguran did visit them either the same day or another day. She testified that she knew nothing about Mr. Thanguran and that she was told nothing about him by her husband. She recalled a “handful” of other occasions when he visited her home, but other than being told that he was there to give her son a massage, knew virtually nothing else about him.
19The Hearing Officer noted that the appellant had submitted 73 receipts purportedly provided by Mr. Thanguran for massage services to the appellant and his wife at the home of his parents, yet Samadeara could provide no information that might have confirmed the existence of Mr. Thanguran. The Hearing Officer wrote: “Her testimony lacked credibility, came across as fabricated, and purposely left out any detail or real information…I believe that Ms. Santiago cannot recall the specific vital details of any encounter with Ranjith because they did not occur. No part of her evidence was relevant to the Tribunal, and therefore I discount her evidence altogether.” The comment about relevance appears to have been directed to her inability to provide any evidence that could have assisted in corroborating the existence of someone who visited her home 73 times to provide massage services to her son and daughter-in-law.
20Natasha Santiago testified that she had massages performed by Mr. Thanguran on two or three occasions at the home of the appellant’s parents. The first appointment was made for her by the appellant in August 2016 for early November 2016 as her due date was October 31, 2016. Her evidence was that although she did not know him, she would go with Mr. Thanguran to her bedroom, remove her clothing and let him carry out the massage. Importantly, she also testified that the appellant paid Mr. Thanguran cash for the massages and was given a receipt. The Hearing Officer noted that there were no such receipts with those the appellant eventually provided to Sun Life (Exhibit 5, Tab A).
21The Hearing Officer simply did not believe virtually any of the evidence of Natasha Santiago, beginning with the first appointment made for her by the appellant months in advance but for a day just after her due date, her allowing someone she did not know and whose qualifications she did not know, massage her while naked in her bedroom.
22The Hearing Officer summarized her assessment of Natasha Santiago’s evidence as follows at page 26 of the decision:
After hearing Natasha Santiago’s testimony I have considered her disingenuous, she lacks credibility, integrity, and has exhibited extremely poor judgment. When her evidence was not disingenuous she exhibited wilful blindness by intentionally not providing any identifiable details about Ranjith Thanguran. She was a party to the deceit in that claims were submitted by her on her behalf. Natasha Santiago has an obvious interest in the outcome of her husband’s hearing as she not only benefits from the Sun Life healthcare, she benefits from his income as a police officer. I attribute no weight to Natasha Santiago’s evidence.
23The final defence witness was Chanpreet Sandhar who testified that between October 2014 and January 2015 the appellant arranged an appointment for him to have a massage with Mr. Thanguran. Mr. Sandhar could not say how Mr. Thanguran arrived at his house but that he arrived carrying a bag and a table. Although he was unemployed at the time, he paid Mr. Thanguran $80.00 for the massage for which he may or may not have been offered a receipt, but in any event did not have one. He too could not provide any identifying information about Mr. Thanguran and knew nothing about his qualifications.
24Mr. Sandhar completed his evidence and left the hearing when he received a call from the appellant allegedly reminding him of some additional information that, presumably, the appellant thought would be helpful to the defence. Mr. Sandhar returned to the hearing and was allowed to give additional evidence. He testified that the appellant also arranged appointments for him with Ms. West and a physiotherapist identified only as Danielle. The Hearing Officer wrote that this additional evidence “adds no evidentiary value to the Hearing.”
25The Hearing Officer also wrote that his evidence “unnervingly demonstrates a pattern of being coached” and “appeared extremely coached, rehearsed, lacked any detail, and unbelievable”. Finally, she wrote that Mr. Sandhar’s “evidence lacked articulation, clarity, intelligibility and individuality. He came across as coached, rehearsed and untruthful. Therefore, I give no weight to his evidence.”
26The Hearing Officer also had the evidence of the appellant to consider in the form of a transcript of his compelled interview in September 2017. Some noteworthy excerpts form her decision dealing with that evidence are as follows at page 28:
Therefore, I reviewed the transcript of Constable Santiago’s interview (Exhibit #5, Tab B) which I found to be filled with contradictions, excuses for his behaviour, falsehoods, misleading statements, and absent of any contrite [sic]. According to Constable Santiago, the mandatory requirements for an online claim submission with Sun Life are the name, address and phone number. Constable Santiago admits to lying when he indicated that since Ranjith Thanguran did not have a phone number, he took the “easy path” and submitted claims under the names of Ms. Robertson and Ms. West (p. 36). Later on in his interview, Constable Santiago indicated he thought Ranjith was a registered massage therapist and a chiropractor (p. 52) when he knew that Ranjith did not have a registration number, yet he continued to submit a total of 45 false claims under Ms. Robertson and 28 false claims under Ms. West for himself and his wife, Natasha Santiago. Constable Santiago further implicated his wife, Natasha Santiago as also completing the online Sun Life claim submissions when he stated, “Most part it was me. Um maybe once and a while it’s my wife but usually I submit the claims” (p. 52).
Constable Santiago indicated in his interview that once he submitted a claim under the name of Ms. West or Ms. Robertson and if Sun Life required any further information, he would provide receipts. Constable Santiago said he would obtain receipts from Ranjith Thanguran if needed for Sun Life (p. 50), however he was adamant throughout his interview, as were the three witnesses, that he or no one else had any way of contacting Ranjith Thanguran. Therefore, how would he obtain the receipts?
27The Hearing Officer rejected the evidence of the three witnesses who testified on behalf of the appellant. She explained in detail why she did so. While her reasons may not have been perfect, e.g. adopting a “common sense” analysis to parts of that evidence, taken together with the appellant’s compelled statement, we cannot say that her findings were unreasonable. The principal finding was that Mr. Thanguran, who according to the appellant was a registered massage therapist and/or chiropractor did not exist. According to the affidavit of Detective Gray, there was no record of such an individual with the health professional colleges. No one saw how he arrived either at the appellant’s residence, on over 70 occasions, or at Mr. Sandhar’s. Thousands of dollars were allegedly paid to him for services, but the appellant claimed through the online claims service of Sun Life that these services were rendered by Ms. West or Ms. Robertson, because the appellant had no information as to his phone number or address. His services, assuming for the moment that any services were rendered, would not have been reimbursable in any event, as he was not a registered health professional.
28It is not the function of the Commission to retry this matter and the credibility findings of the Hearing Officer deserve deference. Those findings led her to conclude that the receipts provided by the appellant were “false and made with the wilful intention to deceive” was reasonable.
III) Did the Hearing Officer improperly take judicial notice of facts?
29According to the appellant, the Hearing Officer improperly took judicial notice of two facts: having massage therapy several days after giving birth increased health risks; and handwriting samples cannot be uniform and must vary if written at different times, depending on things like mood, time of day or location.
30In our view, even if we were to accept that the Hearing Officer improperly took judicial notice of these facts, the result in this matter would not change. The Hearing Officer explained why she did not believe the three witnesses called by the defence. She essentially found that the appellant was dishonest for falsely claiming that the services were rendered by Ms. West or Ms. Robertson. She concluded that Mr. Thanguran did not exist and explained this finding. There was sufficient evidence to support this conclusion aside from these contested facts. Paraphrasing the words of Stratas J.A., the entire tree does not fall. We would not give effect to this ground of appeal.
IV) Did the Hearing Officer improperly discount defence evidence because of the appellant’s failure to testify or provide evidence in the investigation?
31The appellant submits that the Hearing Officer drew an adverse inference against him and his witnesses because he did not provide evidence to assist in the investigation and that she shifted the burden of proof onto the appellant to prove his innocence. The appellant further submits that the Hearing Officer improperly treated this matter as akin to an alibi defence. We disagree.
32The Hearing Officer wrote the following at page 30 of her decision:
At the time of the investigation, Constable Santiago had been a police officer for 4 ½ years. I would expect that with his experience, knowledge, and skill set, his ability for gathering evidence would be honed especially when it involves proving the existence of Ranjit Thanguran which includes having him attend the hearing
Although Constable Santiago is not compelled to testify before the Tribunal, and it cannot be held against him, I must indicate that it would have been beneficial to understand everything that he had done, if anything, in an attempt to locate Ranjith Thanguran with the motivation of clearing himself of he charge before the Tribunal. Instead the Defence witnesses attempt to put the pieces together for him in their concocted collaboration.
33Remembering that this is not a criminal matter, we see no error on the part of the Hearing Officer saying that it would have been beneficial to understand if the appellant did anything in an attempt to locate Mr. Thanguran. Nothing in her decision suggests that she somehow shifted the burden of proof.
34In his compelled interview, the appellant was told of the efforts made by the respondent to locate Mr. Thanguran. The appellant was asked if he understood the position of the respondent and he stated the following:
No, I understand. I understand exactly. Like looking at it now, he didn’t have a telephone number and I did not go into the sense – he’s providing me service, providing me with the receipts. I thought all I needed was service and receipts and I was good. But looking at it now, obviously more information would‘ve helped my situation.
35The appellant was then asked by the officer how the respondent could speak with Mr. Thanguran but his counsel did not allow him to answer the question because of the outstanding criminal charge. His counsel, did say “Uh, however, we may be um sharing some information with you on a voluntary basis.” It does not appear that any further information which would have allowed the respondent to at least verify the existence of Mr. Thanguran was ever offered.
36The Hearing Officer’s comment was understandable in the circumstances but, again, did not shift the burden of proof to the appellant as he now contends. The appellant had purportedly arranged over 73 appointments with Mr. Thanguran for himself and his wife. He also arranged appointments for Mr. Sandhar. Yet when facing the possibility of having his employment terminated for Discreditable Conduct and Deceit, he apparently did nothing to assist in locating the one individual who could have assisted the defence to some extent.
V) Was the penalty of termination harsh and excessive or based on an error in principle?
37The appellant made limited submissions on the appeal as to penalty while the respondent submitted that the finding of guilt on the two charges of Discreditable Conduct was sufficient in and of itself to justify termination of the appellant’s employment. According to the respondent, the finding of guilt on the charge of Deceit was simply an aggravating feature of the matter.
38The Hearing Officer began his analysis on the appropriate penalty by citing the decision in Williams and the Ontario Provincial Police, OCCPS, December 4, 1995 which highlighted three important elements to be considered: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the Service. She then referred to the decision in Krug and the Ottawa Police Service, OCCPS, January 21, 2003 which set out the aggravating and mitigating factors to be considered in determining an appropriate penalty. The Hearing Officer noted that there was no requirement to give one factor more weight than another and that the seriousness alone of the offence could justify dismissal.
39The Hearing Officer then considered the following factors:
Public interest
Seriousness of the misconduct
Recognition of the seriousness of the misconduct
Damage to the reputation of then police service
Employment history
Potential to reform or rehabilitate the police officer
Effect on the police officer and his family
Specific and general deterrence
Consistency of disposition
40The appellant did not make detailed submissions at the appeal as to why he believed the Hearing Officer’s treatment of these factors resulted in a harsh and excessive penalty. Nevertheless, we have reviewed the Hearing Officer’s consideration of each of these factors and find that there was nor error in principle that would allow us to substitute a lesser penalty. The penalty imposed by the Hearing Officer was not harsh and excessive, nor was it unfit.
41The Hearing Officer reviewed the cases presented to her by the prosecution and the defence and found that the most relevant case on point was Husseini and York Regional Police Service, 2017 CanLII 4791 (ON CPC), judicial review application dismissed at Husseini v. York Regional Police Service, 2018 ONSC 283.
42The Hearing Officer wrote the following:
The Husseini case is the most relevant case on point. Like Constable Husseini, Constable Santiago had made deliberate, planned and repeated submissions of false claims over a 4 year period, had attempted to cover up by creating 14 false documents, and stopped only when caught. Constable Santiago’s misconduct is far more egregious than Constable Husseini and deserving the same penalty.
43The Hearing Officer, in her analysis of the 9 factors she found to be relevant, decided that the public interest, the seriousness of the misconduct, recognition of the seriousness of the misconduct and the rehabilitation potential were all aggravating factors. With respect to the potential damage to the reputation of the respondent she wrote the following:
Constable Santiago’s egregious misconduct would emphatically affect the reputation of the Police Service and affect the community’s trust and confidence in the Police Service which would directly and profoundly impact partnerships, and relationships….I believe that if Constable Santiago were retained by the Service and deployed in the community it would cause irreparable damage to its reputation, and be an insult to the expectation of the public regarding the conduct of its police.
44The Hearing Officer recognized that there would be obvious serious financial impact on the appellant and his family but that he presented no evidence of extreme financial hardship. She found that the appellant’s employment history provided negligible mitigating circumstances. Indeed, in our view, as the fact that his deception with the online benefits claims began less than one year after he began his employment with the respondent, this could easily have been viewed as a significant aggravating factor.
45The Hearing Officer wrote the following when she considered the deterrence factor:
The balance to be reached in addressing specific and general deterrence is to ensure that any penalty imposed not be beyond the penalty range while sending clear message to other police officers, and throughout the Police Service that such misconduct is viewed seriously and will not be tolerated.
46Finally, the Hearing Officer was attuned to the desirability for consistency of penalty. She reviewed a number of decisions dealing with false benefit claims in detail and as indicated above, found Husseini to be the most relevant.
47The Hearing Officer did provide the appellant the opportunity to resign within 7 days, rather than have his employment terminated immediately. That 7 day period has obviously lapsed.
ORDER
48Pursuant to section 87(8)(a) the Commission confirms the decisions of the Hearing Officer finding the appellant committed the three counts of misconduct and that his employment with the respondent is terminated.
Released: April 29, 2021
D. Stephen Jovanovic
Jeanie Theoharis
Laura Hodgson