TRIBUNALS ONTARIO
Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission civile de l’Ontario sur la police
File: 23-ADJ-005
Between:
Police Constable Peter Haase
Appellant
And
Thunder Bay Police Service
Respondent
Decision
Panel: E. Morton, Vice Chair L. Hodgson, Vice Chair C. Osterberg, Member
Participants: D. Butt, counsel for the appellant H. Walbourne, counsel for the respondent
Held by Videoconference: August 2, 2023
Introduction
1On February 15, 2023, the Appellant pleaded guilty to discreditable conduct, insubordination and unlawful or unnecessary use of force contrary to ss. 2(a)(v), s. 2(1)(b)(ii) and s. 2(1)(g)(ii), respectively, of the Code of Conduct contained in Ontario Regulation 268/10, pursuant to the Police Services Act, R.S.O. 1990, c. P.15 (the Act). On February 21, 2023, the Hearing Officer, Superintendent M.P.B Elbers (retired) issued his penalty decision with reasons ordering that the Appellant:
…be demoted from his position of First Class Constable to Third Class Constable immediately for a period of four (4) months. Upon completing the four months Constable Haase will be elevated to Second Class Constable for a period of twelve (12) [sic] and upon completing the twelve months at Second Class Constable will return to First Class Constable….
2The Appellant appeals the penalty imposed.
Disposition
3For the reasons that follow, the appeal is dismissed.
BACKGROUND
4The parties relied on an agreed statement of fact at the guilty plea proceedings. The three counts of misconduct relate to the Appellant’s interaction with an Indigenous civilian, J.F., in downtown Thunder Bay on the morning of January 2, 2022. The Appellant was on patrol with his partner, Constable Young. They believed J.F. had been in the company of a wanted male and that he had evaded the officers when he saw their vehicle approach him. The Appellant located J.F. in a bus shelter some time later. Constable Young asked J.F. for identification, which he did not produce. Constable Young’s body camera captured, in part, what happened next and what forms the subject matter of the use of force and discreditable conduct counts.
5The Appellant approached J.F. and shouted at him to identify himself and identify the man he had been with. He grabbed J.F. by the jacket and left bicep, pushed him against the wall of the bus shelter and demanded to know what his name was. In the course of questioning J.F., the Appellant shouted profanities at him six different times. J.F. did provide the Appellant with his name. At no point did the Appellant tell J.F. he had no obligation to speak to the officers and that he was not detained.
6The Appellant, contrary to Thunder Bay Police Service Policy (Digital Evidence Management P6C140) failed to activate his own body camera throughout the interaction, nor did he report to his supervisor the camera was not activated, contrary to policy. This was the basis for the insubordination count.
7The Appellant had been employed with the Service since April 11, 2019. He had two prior disciplinary findings. On December 4, 2019 he received a disposition of 24 hours and retraining for a count of insubordination. This arose from his failure to properly load a carbine rifle in contravention of Service policy, resulting in an accidental discharge. On July 2, 2021, he received a disposition of 72 hours and retraining for a count of discreditable conduct. The applicant had divulged police information to a landlord to assist him personally in a dispute he had with a tenant.
8At the penalty hearing, the Respondent sought the Appellant’s dismissal. The Respondent pointed to the seriousness of the misconduct, particularly in light of the history of damaged relationship between the Service and the Indigenous community in Thunder Bay. The Appellant sought a penalty of 144 hours of forfeiture along with remedial training for “Indigenous issues.” The Appellant relied on the principle of progressive discipline and highlighted the fact J.F., the civilian involved in the altercation, had no concern and declined to make a complaint about the Appellant’s misconduct. He also relied on agreed facts the Appellant suffered a traumatic, on-duty incident days before the present misconduct, and had received a positive progress report from his treating psychologist.
9In thorough reasons, the Hearing Officer considered these arguments and, in the final analysis, held the Appellant could be rehabilitated and of future use to the Service. The Hearing Officer emphasized the seriousness of the misconduct throughout his reasons, particularly in light of the damage to the reputation of the Service. Balancing the dispositional factors the Hearing Officer found demotion, what he described as a “last chance” disposition for the Appellant, to be a fit penalty.
ISSUES ON APPEAL
10The Appellant submits the Hearing Officer made three errors in principle when arriving at the penalty of demotion:
- Failing to give appropriate weight to uncontradicted medical evidence of the Appellant’s rehabilitation;
- Failing to consider evidence J.F. had no concern about the interaction and had declined to make a complaint; and,
- Failing to give effect to the principle of progressive discipline.
STANDARD OF REVIEW
11In Karklins v. Toronto (City) Police Service, 2010 ONSC 747 at paragraph 10, the Divisional Court confirmed the following description of the role of the Commission on a penalty appeal:
The role of the Commission on a penalty is well established. Our function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him or her. We can only vary a penalty decision where there is a clear error in principle or relevant material facts are not considered. That is not something done lightly.
12The Commission is not permitted to reweigh factors relevant to penalty disposition and substitute its own opinion as to the appropriate penalty. Unless there has been an error in principle or relevant factors have been ignored, the Commission will not interfere with the penalty decision even if it would have come to a different conclusion. The Commission’s task is to determine whether the Hearing Officer’s decision was reasonable in the circumstances: Kobayashi and Waterloo Regional Police Service, 2015 ONCPC 12 at paragraph 33; Gould v. Toronto Police, 2018 ONSC 4074 (Div. Dt.) at paragraph 6.
13In Husseini v. York Regional Police Service, 2018 ONSC 283, the Divisional Court confirmed 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 dispositional factors.
ANALYSIS
1. Medical Evidence of the Appellant’s PTSD and Rehabilitation
14It was an agreed fact at the penalty proceeding that on December 30, 2021, the Appellant was involved in a dangerous occurrence where he was dragged by an intoxicated driver and seriously considered using lethal force to protect himself. It was agreed the incident was publicized on social media for the Service without consultation or consideration for the Appellant’s welfare or mental health.
15At the penalty hearing the Appellant filed a letter dated January 16, 2023 from a clinical and forensic psychologist. The substantive information in the letter, in its entirety, reads:
This letter will confirm that you (Mr. Peter Haase) are a patient of mine, and that you have been since November 2022. During our therapy sessions we have spoken at length about Posttraumatic Stress Disorder and how this arose subsequent to the incident where you were dragged by a vehicle that you had stopped, fearing for a significant period of time, for your life. This traumatic incident resulted in difficulties with arousal and anger and was the reason why you shouted at and grabbed the male in the incident in question. We have spoken at length about the management of your arousal, and specifically your anger, and I have no concerns at this time with your management of that.
16In his reasons, the Hearing Officer referred to this letter but held he would need “a more in depth report” to consider whether PTSD was the reason the Appellant reacted to J.F. as he did. While the Hearing Officer accepted the letter as evidence under s. 15(1) of the Statutory Powers and Procedure Act, he gave it limited weight. He wrote that he “accept[s] the written report with some skepticism” and was not “totally convinced by the one line of this psychologist that the conclusion he reached is totally accurate.” The Hearing Officer accepted PTSD may have played a minor role in the Appellant’s conduct.
17The Appellant submits on appeal that having accepted the report, it was incumbent on the Hearing Officer to address the nexus between the PTSD and the misconduct itself, in assessing the seriousness of the offence. He further submits it was necessary to assess the expert evidence when assessing the dispositional factor of rehabilitation.
18The Commission does not agree the Hearing Officer effectively ignored or gave inappropriate weight to the medical opinion expressed in this letter. It is clear that it is an error in principle to fail to consider uncontradicted expert evidence concerning an officer’s rehabilitation in cases where dismissal has been ordered: see for example Moraru v. Ottawa Police Service, 2008 ONCPC 1, Purbrick v. Ontario Provincial Police, 2011 ONCPC 7; McArthur v. Guelph Police Service, 2023 CanLII 82737 (ON CPC). Those cases are distinguishable from the present case.
19Here, the Hearing Officer did not fail to consider, reject or dismiss the evidence of the role that PTSD played in the misconduct or the rehabilitative potential of the Appellant. He expressly considered whether the letter was admissible and determined he could consider it. The Hearing Officer averted to the traumatic December 2021 incident and accepted it “may have played a minor role” in the interaction with J.F. He provided that he would require a more in-depth report to conclude PTSD played a greater role in the misconduct and gave further reasons he was “not totally convinced by the one line of this psychologist” this was the case. The Hearing Officer was entitled to accept some, but not all, of the evidence contained in the brief report, even if it was uncontradicted: Kobayashi and Waterloo Regional Police Service, supra at para. 38; Jeremiah Johnson v. Durham Regional Police Service, 2020 ONCPC 3 at para. 24.
20The Hearing Officer was entitled to refer to the brevity of the report as a reason he assigned limited weight to this evidence. The letter does not state whether the psychologist is aware of the precise details of the misconduct to which the Appellant pleaded guilty. The Commission agrees that evidence relating to PTSD at a penalty hearing does not necessarily have to be voluminous or consume days of proceedings. However, in this case, the letter does little to set out the basis for the psychologist’s ultimate conclusion. The Hearing Officer was entitled to give it the limited weight he did.
21The Commission finds it significant this was a penalty hearing where the Respondent sought dismissal. The Hearing Officer was alive to the importance of rehabilitation, finding in his ultimate conclusions that “the opportunity to reform should be a significant consideration” and “corrective dispositions should prevail, where possible.” The Hearing Officer accepted, earlier in his reasons, the trauma the Appellant had experienced could have played a minor role in his actions on January 2, 2022. The psychologist’s letter, with respect to the Appellant’s future progress and rehabilitation, states only that he has “no concerns at this time with your management of [anger].” The Appellant effectively asks the Commission to assign weight to that comment as a mitigating factor and then rebalance the factors to arrive at a disposition of forfeiture rather than demotion. That is decidedly not the role of the Commission hearing a penalty appeal.
2. The Weight Given to the Civilian’s Failure to Make a Complaint
22The agreed facts provided that J.F., the civilian involved, personally had no concerns with the physical contact and he declined to make a complaint. The Appellant submitted to the Hearing Officer that J.F.’s position was a factor to consider in the penalty analysis. The Hearing Officer did not refer to J.F.’s apparent indifference to the Appellant’s misconduct as a mitigating factor.
23On appeal, the Appellant now takes issue with a comment in the Hearing Officer’s reasons about potential impact of the misconduct on J.F. When assessing the seriousness of the Appellant’s misconduct, the Hearing Officer observes that J.F. gave no resistance to what the Hearing Officer describes as the “deplorable and unhinged” conduct of the Appellant. He goes further and says “the indigenous male knew his position in life with this officer and offered no resistance. Thankfully he did not get confrontational as it would not have ended positively for him.”
24The Appellant argues these comments undermine the Hearing Officer’s analysis as they represent a paternalistic attitude that speculates about how J.F. experienced the interaction with the Appellant, without accounting for the agreed fact that J.F. had “no concerns” and did not make a complaint. As a result, the Appellant submits, the Hearing Officer erred in principle by overstating the seriousness of this brief encounter. The Commission disagrees.
25The Hearing Officer’s comments about J.F.’s “position,” even if they are problematic for the reasons the Appellant asserts, are peripheral to the Hearing Officer’s analysis of the seriousness of the Appellant’s Conduct. These observations are made in the context of several lengthier comments by the Hearing Officer about the impact the Appellant’s misconduct had on the reputation of the Service. It is clear, reading the entirety of his reasons, the Hearing Officer’s concern was the Appellant’s aggressive and inhumane treatment of any member of the public, particularly in light of his use of profanity. He also viewed the Appellant’s conduct as damaging to the public trust and the reputation of the Service as, in his view, it had the effect of undermining steps taken to address and repair mistrust the Service had caused to the Indigenous community.
26Second, and returning to the submission the Appellant originally made at the penalty hearing, it is difficult to see how the Hearing Officer erred by not giving weight to J.F.’s apparent indifference to this encounter. There is no context provided about how or when J.F. was contacted to provide input; the only information in the record is that he had “no concerns” and declined to make a complaint. The bare statement by J.F., summarized in the agreed statement of fact cannot be characterized as providing a clear view on J.F.’s part the conduct was not serious. Even if it could, the Appellant pointed to no authority at the penalty hearing or on appeal that stands for the proposition that the view of a civilian impacted by police misconduct must be considered in assessing the seriousness of the misconduct. The Hearing Officer considered a great number of factors when analyzing the seriousness of the Appellant’s conduct; the fact that he did not avert to the brief reference to the J.F.’s input in the agreed statement does not undermine the reasonableness of his analysis.
3. Progressive Discipline
27As set out above, the Appellant had been employed with the Service for just over two and a half years at the time of the encounter with J.F. In that period, he had received two dispositions for misconduct, the latter in 2021 which resulted in 72 hours’ forfeiture. The Appellant submits the penalty of demotion, rather than an increased forfeiture of hours, runs afoul of the principle of progressive discipline. Specifically, he submits the characterization of the demotion as a “last chance” penalty is not measured or principled and represents too far a “leap” from the prior disposition.
28The Respondent cites and relies on Galassi v Hamilton Police Service, 2005 CanLII 20789, in which the Ontario Divisional Court sated the following, at paragraph 32:
In a system of progressive discipline, an employer applies increasingly serious sanctions to employee misconduct in an effort to correct the employee’s behaviour. Nevertheless, even in such a system, the particular misconduct of an employee may be so serious that dismissal is warranted, despite the absence of prior warnings of disciplinary action.
29In this case, the Hearing Officer gave adequate reasons as to why the Appellant’s misconduct warranted demotion, rather than a progression in forfeiture, as a penalty. These reasons related not only to the prior discipline record, but his view on the seriousness of the misconduct and the damage it caused to public confidence in and the reputation of the Service. The Hearing Officer considered and weighed other relevant dispositional factors, including rehabilitation, the need for deterrence and the Appellant’s recognition of the seriousness of the misconduct. The Commission finds he reasonably placed weight on the seriousness of the conduct, the damage to the reputation of the Service and the impact on public confidence in determining demotion was the appropriate penalty.
ORDER
30The appeal is dismissed. Pursuant to s. 87(8)(a) of the Act, the Commission confirms the penalty decision of the Hearing Officer.
Released: October 11, 2023
___________________
Emily Morton
___________________
Laura Hodgson
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Colin Osterberg