Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
PC. M.P. (Marc) Joubert
Appellant
and
The Ontario Provincial Police
Respondent
and
Marty Brown
Public Complaint
DECISION
Panel:
D. Stephen Jovanovic, Associate Chair Maureen Helt, Vice-Chair
Laura Hodgson, Vice-Chair
Appearances:
James A. Girvin, counsel for the appellant Chris Diana, counsel for the respondent
Chris Fleury, counsel for the public complainant
Place and date of hearing:
Videoconference - Toronto, Ontario October 16, 2020
INTRODUCTION
1This penalty appeal arises from the decision of Superintendent Lisa Taylor, (the Hearing Officer) dated January 31, 2020 where, after accepting the appellantâs plea of guilty to one count of discreditable conduct, she made the following disposition:
I order that P/C Joubert [be] demoted to fourth class constable for 18 months followed by the established progression through the constable rank gradations, incumbent on satisfactory evaluations, meeting or exceeding standards, to ultimately return to the rank of first class constable.
2The appellantâs plea of guilty and the finding of guilt were based on an Agreed Statement of Facts (the ASF), which, given his submissions, is attached in full to this decision as Schedule A.
3The ASF should be read in conjunction with the particulars in the Notice of Hearing which was as follows:
It is alleged that on or about February 3rd, 2016 PC JOUBERT, while on-duty, and while in uniform and operating a marked police cruiser, did:
Pick up a civilian at the Rossmore Plaza in Prince Edward County at approximately 10:30 pm and drive that individual to the Massassauga Point Conservation Area in a marked OPP SUV cruiser for non-police related matters.
Use the OPP cruiser to sit inside and talk with this civilian about non-police related matters, in particular the affairs of his ex-wife. The conversation occurring from 10:30 pm to 1:00 am.
On or about May 10th, 2016 provide a Duty Report to PSB in which he admitted to having this meeting as described while on-duty.
Commencing sometime after November 2015 and continuing through to March 2016, PC JOUBERT did:
Utilize an OPP issued cell phone to fabricate and send personal text messages that were inappropriate in that the content was felt inappropriate and unwanted by the recipients.
Use his OPP issued cell phone to fabricate conversations that he had personally read between his ex-wifeâs new boyfriend and another person knowing that these conversations were not true and could harm his ex-wifeâs current relationship.
During an interview with PSB on or about November 10th, 2016, PC JOUBERT again admitted to using his OPP issued cell phone to recreate text messages pertaining to his ex-wifeâs new relationship.
Further, it is alleged that on or about November 10th, 2016 PC JOUBERT was lawfully ordered to duty interview in which he was ordered to answer questions
regarding the source of information related to conduct allegation. PSB provided PC JOUBERT the Respondent Officer Interview Caution.
PC JOUBERT fully acknowledged that he understood the order to answer questions of PSB relating to a conduct matter to which he read a written refusal letter that he had prepared prior to the interview.
The PSB investigator cautioned PC JOUBERT several more times during the interview regarding insubordination but PC JOUBERT continued to refuse answering the question.
PSB provided the opportunity for PC JOUBERT to reflect on his decision to refuse answering their questions regarding the source of his information.
On or about November 18th, 2016 PSB contacted PC JOUBERT by phone directing that he provide this information and he verbally refused to answer questions of PSB.
On or about February 16th, 2017 the PSB investigator sent an email to PC JOUBERT ordering him to reveal the name of his source and their contact information. PC JOUBERT replied to this email, again refusing to provide an answer.
Further it is alleged that during the month of February 2016 PC JOUBERT sent his ex-wife approximately 60 text messages which included screen shots of text messages, which PC JOUBERT alleged were between her new boyfriend, Mr. Brown, and two of Dr. Brownâs former girlfriends. The former girlfriends alleged that PC JOUBERT fabricated those messages.
It is alleged that PC JOUBERT was less than forthcoming in that:
On or about May 10th, 2016 PC JOUBERT provided a Duty Report to PSB in which he told PSB he used his OPP issued cell phone to recreate text conversations he personally read between Mr. Brown and another person. He reported he recreated the messages as the other party was not willing to share the actual text message with him. In doing this PC JOUBERT was less than forthcoming.
He was ordered to a Duty Interview on or about November 10th, 2016 and asked to identify the source who, according to PC JOUBERT, had shown him text messages between the source and Mr. Brown. PC JOUBERT provided PSB with a written refusal, stating, âMy off-duty meetings, communications and correspondence with friends was given to me in confidence and clearly conveyed that they wanted no involvement in fear of revenge or retribution.â In submitting this response to PSB, PC JOUBERT was less than forthcoming.
During the Duty Interview, PC JOUBERT told PSB that the information contained in his Duty Report was the truth. In doing so, PC JOUBERT was less than forthcoming.
On or about March 6, 2017 PC JOUBERT registered the sources as OPP Confidential Informants (CI). In doing so PC JOUBERT knowingly submitted
false information to mislead the investigation as no CI was used to obtain information as he alleges.
- An audit of the CIâs related to this matter was performed by S/Sgt. OâBRIEN of the OPP Source Development and Management Unit. The audit determined that:
o The individuals registered by PC JOUBERT did not knowingly understand their position related to any offer of anonymity or privilege that may or may not have been given to them by PC JOUBERT.
o They did not know that they were given any status or privilege.
o The individuals denied showing or providing any text messages as alleged by PC JOUBERT.
On or about December 21st, 2017 PSB met with one of the individuals who was shown the text messages in question and this person advised that they did not show those messages or any text messages of that nature to PC JOUBERT.
On or about February 1st, 2018 PSB met with the other individual who stated that they never shown (sic) or forwarded any text messages between him/her and Dr. Brown to PC JOUBERT.
PC JOUBERT ought to have known that he was being less than forthcoming in his responses to the PSB investigators lawfully ordered Duty Report and Duty Interview regarding the authenticity of the text messages.
PC JOUBERT ought to have known that his actions would bring discredit to the OPP.
4The essence of the appellantâs position, which will be detailed later in these reasons, is that the Hearing Officer made a series of errors when she went beyond what was agreed to in the ASF and in effect penalized him as if he had been charged with and admitted to counts of deceit and insubordination rather than just discreditable conduct. He further submits that the penalty imposed was unreasonable and unduly harsh.
DISPOSITION
5For the reasons that follow, we confirm the decision of the Hearing Officer.
ISSUES
6The appellant submits that the Hearing Officer made a number of legal errors which resulted in a denial of procedural fairness and natural justice and that if allowed to stand would undermine the integrity of the police disciplinary process. The errors are set out in his factum as follows:
I) The Hearing Officer made legal errors when she made findings that deviated from the jointly submitted and accepted ASF which provided the evidentiary basis for the finding of guilt.
II) The Hearing Officerâs penalty decision was unjust as it is based on conclusions which effectively amount to findings of deceit and insubordination that were not included in the Notice of Hearing. Accordingly, the appellant was denied procedural fairness and natural justice by being deprived of the opportunity to rebut the Hearing Officerâs erroneous inferences and conclusions.
III) The Hearing Officerâs penalty decision was unduly harsh as her review of the aggravating and mitigating factors was influenced by her findings that the appellant was guilty of deceit and insubordination even though the appellant only pled guilty to a single charge of discreditable conduct.
IV) The Hearing Officerâs penalty was unduly harsh and unreasonable as it failed to properly balance the relevant disposition considerations and was also inconsistent with caselaw.
7The respondent submits that the Hearing Officer did not make any legal errors and that her findings were based on the ASF or reasonable inferences drawn from the ASF. The respondent further submits that the penalty of demotion was reasonable as was the Hearing Officerâs review of the customary factors taken into account in deciding a reasonable penalty.
8The Public Complainant supports the position of the respondent that the alleged errors made by the Hearing Officer as to the evidence were permissible inferences and that the appellantâs demotion was within the range of reasonable penalties.
ANALYSIS
Standard of Review
9We begin our analysis of the issues by restating the standards of review applicable in this appeal. The standard of 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 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 at para. 53.
10There is no need to conduct an assessment of the standard of review with respect to issues of procedural fairness or a breach of the rules of natural justice. Whether a decision-maker has complied with his duty of procedural fairness or has breached the rules of natural justice is reviewed on the standard of correctness.
11On the issue of penalty, the standard of review is reasonableness. The Divisional Court in Karklins v. City of Toronto (City) Police Service, 2010 ONSC 747, accepted 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.
12In 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 ben 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.
13In Husseini v. York Regional Police Service, 2018 ONSC 283, the Divisional Court confirmed that the Commission is not to second-guess the decision of a hearing officer on penalty and to give deference to the assessment and weight given by a hearing officer to the disposition factors.
Did the Hearing Officer go beyond the ASF?
14The first three issues as set out by the appellant above are in reality three ways of raising the same point. He submits that the Hearing Officer made errors of law by going beyond the evidence proffered in the ASF and effectively found him guilty of deceit and insubordination when he only pled guilty to the one count of discreditable conduct. He submits that doing so amounted to the denial of procedural fairness and natural justice as he did not have the opportunity to respond to the Hearing Officerâs erroneous inferences and conclusions.
15The appellant further submits that the Hearing Officerâs review of the aggravating and mitigating dispositional factors was influenced and tainted by her conclusions that he was guilty of deceit and insubordination.
16We disagree with the appellantâs characterization of the Hearing Officerâs decision or that she made the errors as alleged.
17The foundation to the discreditable conduct charge was detailed in the statement of particulars. These particulars are wide-ranging covering many events beginning in November of 2015 through 2016 and then ending in March of 2017 when the appellant registered his supposed sources for the text messages as Confidential Informants (CIs).
The respondentâs investigation of the appellantâs actions continued through to February 2018.
18Much of the statement of particulars was then incorporated into the ASF. The appellantâs statements to PSB and in his Duty Report were described as being âless than forthcomingâ in both documents. Paragraph 8 of the ASF goes further where it reads:
âWithout the knowledge and consent of either source, PC Joubert fabricated [emphasis added] text messages purportedly involving Dr. Brown in an effort to make him look bad to AJ. The intention of the text messages was to disparage the character of Dr. Brown and to assist in breaking up his relationship with AJ.â
19Throughout his interactions with the PSB and in his Duty Reports the appellant referred repeatedly to the non-existent text messages. Whether his statements could be characterized as acts of deceit, deception, misrepresentations, prevarications, his being less than forthcoming, or simply outright lies was not especially relevant. His statements about the text messages and the sources for the same were patently false. He doesnât argue otherwise on this appeal, other than to say that the Hearing Officer in effect penalized him for the offence of deceit.
20The Hearing Officer wrote at page 11 of her decision where she dealt with the nature and seriousness of the appellantâs misconduct: âWhile recognizing there is no finding of guilt in relation to insubordination or deceit, I agree with the prosecution and the public complainant in that the ASoF involve[s] elements of such behaviourâ.
21At page 14 of her decision while still dealing with the nature and seriousness of the appellantâs conduct she wrote the following:
This was not a singular mistake. I find P/C Joubertâs misconduct was deliberate, protracted and lacked integrity. This causes me concern about the integrity of his character. P/C Joubert made repeated attempts to conceal the truth and misrepresented conversations and text messages; this behaviour goes against the core values of the OPP. Individual aspects such as spending on-duty time gathering information on Dr. Brown or sending numerous unwanted texts to a former spouse are serious enough but when you understand the full circumstances of this matter including what I find are direct attempts to thwart the PSB investigation and to interfere with the sanctity of the Confidential Informant process, this is very serious misconduct.
22Later on the same page, the Hearing Officer again acknowledges that although there was no finding of guilt in relation to deceit, the appellant was â uncooperative and less than forthcomingâ with PSB; his responses âwere not truthful and lacked integrityâ; he âmisrepresented the truth about the existence of texts and that he did in fact create them out of thin airâ; his actions and words were âdishonestâ and; he âfraudulentlyâ created two Confidential Informant files.
23In our view, all of these comments were appropriate when fairly considering the ASF. The fact that the Hearing Officer used the words deceit and insubordination, which she
obviously knew the appellant was not charged with, in her decision does not amount to an error of law or render the penalty assessed unreasonable.
24The appellant also submits that the Hearing Officer committed an error of law when she wrote at page 29 of her decision that he engaged the CI process in an âattempt to conceal his earlier misconduct.â According to the appellant, this comment was inflammatory and without foundation in the ASF.
25The Hearing Officer wrote at page 14 of her decision that the only logical reason for the appellantâs intentional misuse of the CI process was an attempt to âhide his original deceitful behaviour of recreating texts that had never existed.â
26In our view, these inferences were reasonable and logical based on any view of the ASF. In any event, even if the Hearing Officer was somehow in error in drawing these inferences, any such error did not affect the reasonableness of the penalty, given the seriousness of the misconduct, as admitted to by the appellant. The Hearing Officerâs reasons flowed directly from the ASF and it cannot be said that the appellant was denied the ability to respond to the issues she considered. We see no errors of procedural fairness or breaches of the rules of natural justice.
The reasonableness of the penalty
27The appellant also submits that the Hearing Officerâs consideration of the appropriate penalty being in the range of a significant demotion to dismissal is demonstrative of her flawed understanding of the facts and the law that then calls into question her legal reasoning.
28The public complainant submitted before the Hearing Officer that the appellant should be dismissed. At pages 34-35 of her decision, the Hearing Officer considered whether the appellantâs dismissal was necessary to protect the public interest and the reputation of the respondent. The appellant is correct in his position that because the Notice of Hearing did not specify that the respondent was seeking his dismissal and only the respondent could do so (see s. 85(4) of the PSA) his dismissal should never have been a consideration. The respondent in fact did not seek the appellantâs dismissal.
29However, the ultimate issue to be dealt with is whether the penalty imposed, not the possible one considered, is reasonable based on the Hearing Officerâs assessment of the aggravating and mitigating factors.
30The Hearing Officerâs assessment of the usual factors considered in penalty cases may be summarized as follows:
Nature and seriousness of the misconduct: egregious misconduct and a significant aggravating factor;
Public interest: serious aggravating factor;
Recognition of seriousness of the misconduct: slightly mitigating factor;
Employment history: mildly mitigating factor;
Ability to reform or rehabilitate: mitigating factor;
Specific and general deterrence: need for a strong sanction;
Effect on Police Officer and his family: neutral consideration.
31The Hearing Officer also dealt with the need to consider prior discipline decisions adopting the following statement from numerous previous decisions: âConsistency in the disciplinary process is often the earmark of fairness. The penalty must be consistent with the facts, and consistent with similar cases that have been dealt with on earlier occasions.â She analyzed the cases put forward by the parties from pages 23 to 34 of her decision.
32The respondent relies on the Commissionâs decision in Orser v. Ontario Provincial Police, 2018 ONCPC 7 and in particular the following quotation:
The Hearing Officerâs reasons show he carefully considered the principle of consistency of penalty. While comparisons are necessarily inexact due to differing circumstances, the Hearing Officer examined in some detail the cases that he found the most relevant. He noted that while officers in these cases received significant demotions, they could have been subject to dismissal. The Hearing Officer also provided a rational basis for distinguishing the appellantâs case from those involving lesser penalties, including differences in the nature and seriousness of the conduct, and the employment history of the officers.
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 and evolve 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.
33We fully adopt that statement as being applicable in this matter. The Hearing Officer provided a rational basis for the imposition of the significant penalty she ultimately ordered.
34To summarize our conclusion, the seriousness of the appellantâs actions and their repetitive nature over a period of many months, as he admitted to in the ASF, justified the imposition of a significant demotion. We find no errors in the Hearing Officerâs analysis that would lead us to reduce the penalty in any way, let alone by a forfeiture of hours as suggested by the appellant.
ORDER
35Pursuant to s. 87(8) of the Police Services Act, the decision of the Hearing Officer is confirmed.
Released: August 24, 2021
D. Stephen Jovanovic
Maureen Helt
Laura Hodgson
IN THE MATTER OF AN ALLEGATION OF DISCREDITABLE CONDUCT AGAINST P.C. M. P. (MARC) JOUBERT #11436, A MEMBER OF THE ONTARIO PROVINCIAL POLICE
BETWEEN:
ONTARIO PROVINCIAL POLICE
Prosecutor
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ONTARIO PROVINCIAL POLICE PROVINCIAL CONSTABLE M. P. (MARC) JOUBERT #11436
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Date tYf.Gyt
1,3/No('1
Charged Officer
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AGREED STATEMENT FACTS
Provincial Constable Marc Joubert is assigned to duties at Prince Edward County Detachment. He has been a member of the Ontario Provincial Police since 2003.
On or about February 3, 2016, PC Joubert, while on duty and while in uniform and operating a marked police cruiser, picked up a civilian (JG) at the Rossmore Plaza in Prince Edward County at approximately 10:30 p.m. He subsequently drove that individual to the Massassauga Point Conservation Area in a marked OPP SUV cruiser for non-police related matters.
PC Joubert and JG sat inside the OPP cruiser from approximately 10:30 p.m. to I :00 a.m. and talked about non-police matters, in particular the affairs of his ex wife, AJ.
In or about November 2015, PC Joubert's ex-wife, AJ, commenced a romantic relationship with Dr. Marty Brown, the public complainant. From that time through to the ending of the relationship between AJ and Dr. Brown, PC Joubert engaged in a course of conduct whereby he sent unwanted and inappropriate text messages and e-mails to AJ, notwithstanding AJ's request for him to cease communicating with her. From February 2-3, 2016, PC Joubert sent approximately 60 such text messages to AJ.
PC Joubert sent these text messages with an OPP issued cell phone.
In a Duty Report dated May 10, 2016, PC Joubert, among other things, wrote the following:
"Some of the texts to my wife were screen shots of actual conversations directly from the source sender to me. There were sources that advised me of their concerns about Marty Brown, and showed me conversations, but would not send me the conversation for fear of Marty Brown seeking revenge. Therefore, I did recreate and abbreviate conversations shown to me, to the best of my knowledge."
- In his compelled interview conducted on November 10, 2016, PC Joubert confirmed that everything he wrote in the Duty Report is the truth. He said the following in his interview:
"Q. Okay. But in any event, these text messages that you said you've recreated
between your work phone and your personal phone that have been purported to be Marty Brown and an ex, that you sent to your ex, AJ, were not, in your mind ... ?
A. It is my belief they were authentic.
Q. That they are authentic.
A. To that source.
Q. That you just didn't come up with this out of the thin air.
A. That's correct.
Q. That you actually saw these messages and- and recreated them, at least to the best of your ability?
A. That's correct.
Q. Okay. So it's not like they're fabricated out of thin air?
A. No, they're not.
Q. You physically saw these messages?
A. Yes, I did."
- PC Joubert was less than forthcoming in his Duty Report and interview in respect of those text messages. PC Joubert neither recreated nor abbreviated conversations shown to him. Neither source showed him any conversations on their respective phones. Neither source forwarded PC Joubert conversations which he then forwared to AJ. Neither recognized the text messages that were created which purported to involve Dr. Brown. Both JG and the other source indicated that Dr. Brown does not communicate in the fashion portrayed in those text messages. Without the knowledge and consent of either source, PC Joubert fabricated text messages purportedly involving Dr. Brown in an effort to make him look bad to AJ. The intention of the text messages was to disparage the character of Dr. Brown and to assist in breaking up his relationship with AJ. PC Joubert referred to specific traits and habits of Dr. Brown that he learned from his sources in an effort to bolster the credibility of his texts. PC Joubert used information he heard from various sources, though he did not see this information
in any specific messages but wrote the texts based on information he heard and shared that in texts with AJ.
Following his Duty Report, on May 12, 2016, Professional Standards Bureau asked PC Joubert to "advise who your source is regarding the text messages that you observed and then recreated and sent to AJ". On May 24, 2016, PC Joubert wrote the following in response: "I am not prepared to disclose my source. They did want to send me the text, but did not want to get involved and had concerns about Marty's reaction. As I can see now why! They also shared it with me in confidence."
In his interview on November 10, 2016, PC Joubert was asked on a number of occasions to identify the source of this information:
Q. "Who was the person that showed you those text messages between themselves and Marty Brown?"
A. "As previously acknowledged, JG was one of my sources ... I will not be divulging any further sources to this complaint." ...
Q. "Okay. You are fully aware of what I read to you prior to the interview and prior to the questions, that you could be charged with insubordination if you fail to answer my questions, is that correct?
A. I understand, that's correct.
Q. Okay. But you still refuse to answer my question?
A. Yes....
Q. Okay. At this time, it's still going to be your decision to refuse to answer the question regarding who the source of that text message is?
A. Yes."
PC Joubert confirmed in that interview that the conversation that he recreated between Dr. Brown and an ex-girlfriend came from that one source.
On November 18, 2016, PSB contacted PC Joubert by phone directing that he provide this information. PC Joubert refused to identify his source.
On February 16, 2017, PSB made another attempt to obtain the identity of the source from PC Joubert. Again, he refused to provide that information.
As a result of information given to PSB by PC Joubert in respect of JG and his other source, PSB sought the direction of Detective Sergeant Gary O'Brien of the Provincial Operations Intelligent Bureau. Based on the information he received directly from PC Joubert and PSB (which received its information from PC Joubert as well), he arranged to have the two sources numbered as confidential informants.
In his email to PSB dated May 24, 2016 and in his interview on November 10, 2016, PC Joubert indicated that the information about Dr. Brown referred to in the texts was provided to him by the sources in confidence. In his interview, he stated: "My off-duty meetings, communication and correspondence with friends was given to me in confidence, and clearly conveyed that they wanted no involvement, in fear of revenge or retribution."
PC Joubert was less than forthcoming in indicating that the sources had given that information in confidence. Neither JG nor the other source asked to be a confidential informant. Neither asked to remain anonymous. Neither indicated they wanted no further involvement. Neither asked for it to be kept secret.
PC Joubert spoke with Sergeant Major Warren who directed him to Sgt McGillis in respect of the Confidential Informer process. JG and the other source were inappropriately signed up as confidential informants as a result of the information
he provided. The OPP has subsequently revised its policy in respect of confidential informants as a result.