Gangadeen v. Peel Regional Police Service, 2023 CanLII 5358

Gangadeen v. Peel Regional Police Service, 2023 CanLII 5358

Citation: Gangadeen v. Peel Regional Police Service, 2022 ONCPC 11

Date: 2023-01-31

File: 22-ADJ-001

Between:

Police Constable Anthony Gangadeen

Appellant

And

Peel Regional Police Service

Respondent

Decision

Panel: E. Morton, Vice Chair L. Hodgson, Vice Chair L. Charette, Member

Participants: P. Brauti and B. Badali, counsel for the appellant S. Wilmott and K. Soles, counsel for the respondent

Videoconference: November 4, 2022

Introduction

1On September 30, 2021, the hearing officer, Superintendent Debra Preston, found the appellant, Constable Gangadeen, guilty of eight counts of discreditable conduct, one count of neglect of duty and one count of insubordination, all contrary to the Code of Conduct contained in Ontario Regulation 268/10, pursuant to the Police Services Act (the PSA). The appellant entered guilty pleas to two further counts of discreditable conduct.

2In the penalty decision dated February 18, 2022, the hearing officer ordered the appellant be dismissed in seven days unless he resigned.

3The appellant appeals both the findings of guilt and the penalty imposed.

Disposition

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

FACTUAL BACKGROUND

5The appellant was charged with 15 counts of misconduct in two separate notices of hearing. The prosecution withdrew two counts, the appellant pleaded guilty to two and the hearing officer found him guilty of ten counts of misconduct following a four-day hearing. The charges arose from various acts of misconduct spanning July 2016 to May of 2019. This gives rise to a relatively complex factual chronology.

6The appellant joined Peel Regional Police Service (PRP) as a constable in 2014. The PRP began to investigate the appellant in early 2017 after it received information he had queried an individual on CPIC on December 30, 2016. That individual was a co-accused with the appellant’s brother in an investigation of robberies and carjackings in Peel between December 25, 2015, and February 14, 2016 called Project Interlock. The appellant’s brother had been arrested a year before the CPIC inquiry. At no time had the appellant been assigned to work on this investigation and he had no notes as to why he made the search. The PRP followed up with the appellant about the query by email, and ultimately decided to suspend him in February 2017.

7A further investigation revealed the appellant had made a great number of police database queries of people, vehicles and police occurrences linked to the investigation that had involved his brother, in addition to his immediate family members and himself.

8The appellant attended a compelled interview on June 10, 2017 where Internal Affairs discussed his various database queries with him at length. In August of 2017 the PRP rescinded the appellant’s suspension and he returned to work.

9On September 24, 2017, the appellant responded, along with a number of officers, to a gun call near a residence in Brampton. A person at the residence asked other officers if they knew the appellant. It came to light the appellant had personal connections with three of the individuals who had become persons of interest in the gun call investigation. The appellant had not disclosed this to officers involved in this firearms investigation. Later investigation revealed the appellant received text and phone calls from a person known to him and associated with some of the persons of interest in this gun call investigation at the very time he was responding to the call, but he did not note this or disclose the contact to his superiors. No one was arrested in relation to the gun call.

10The PRP served the appellant with a notice of hearing on December 17, 2017 alleging five counts of discreditable conduct. These charges related to extensive alleged improper use of CPIC and other PRP databases to query members of the public and vehicles, as well as access police occurrence reports, all for no operational reason, while in a conflict of interest, and without making notes of the purpose or results of the search. The 2017 notice further charged one count of neglect of duty for failing to take any notes at all between September 23 and December 6, 2016.

11Though the appellant returned to work in August 2017 and was served with a notice of hearing in December of 2017, the focus on his professional conduct, which the PRP at one point suspected involved criminal activity on his part, continued.

12The PRP commenced a criminal investigation into the appellant with respect to this gun call. This included obtaining a Criminal Code production order for data transmission on the night of the gun call, which established the contact the appellant had from an associate of the persons of interest on that night but did not note or disclose to superiors. The use of the results of the production order in the context of the professional misconduct proceedings was a live issue at the hearing and now on appeal.

13The PRP suspended the appellant for the second time in April 2018. By September 5, 2018 the criminal investigation concluded and no criminal charges were laid. The appellant attended a compelled interview on May 8, 2019. He indicated he had been contacted on September 24, 2017 by an acquaintance about the ongoing firearms investigation but had advised the caller he could not discuss it. He did not disclose this to his superiors or make any notes.

14The PRP served the appellant with a second notice of hearing on April 20, 2020. The second notice alleged discreditable conduct and neglect of duty in relation to the September 24, 2017 gun call for failing to disclose his connections with persons of interest and for failing to take any notes. This notice alleged further unauthorized use of police databases that post-dated the activity alleged in the 2017 notice of hearing. According to the notice, the appellant queried individuals, including family members for no operational purpose just five days after returning from his suspension. This second notice further charged the appellant with discreditable conduct in relation to an off-duty incident in 2016, and a count of insubordination in relation to the appellant’s conduct during a second compelled interview.

15The appellant pleaded guilty to the two counts of discreditable conduct involving police database inquiries of his brother and his parents. The hearing officer found him not guilty of police database inquiries regarding fellow officers as she was satisfied those were related to operational purposes. The hearing officer found the appellant guilty of all of the other counts of discreditable conduct along with the insubordination count and neglect of duty for failing to take notes in relation to the firearms investigation and for a period of three months in 2016.¹

ISSUES ON APPEAL

16The appellant raises the following issues on appeal:

a) Did the hearing officer err by admitting the evidence obtained through a Criminal Code production order in relation to the September 24, 2017 gun call incident?

b) Was the finding of guilt on the September 24, 2017 gun call incident unreasonable?

c) In relation to the police database searches, did the hearing officer misapprehend the evidence and come to an unreasonable verdict in finding the appellant was not engaged in lawful operational queries and was in a conflict of interest?

d) Did the hearing officer misapprehend evidence in relation to the July 29, 2016 off-duty incident by relying on hearsay evidence?

e) Was the finding of guilt for insubordination at the May 8, 2019 compelled interview unreasonable?

f) Did the hearing officer err in principle by imposing the penalty of dismissal?

STANDARD OF REVIEW

17On appeal, the Commission must apply a standard of reasonableness to the hearing officer’s factual findings and a standard of correctness to questions of law: Ottawa Police Services v. Diafwila, 2016 ONCA 627 at paragraphs 61-63.

18The reasonableness standard also applies when reviewing the hearing officer’s penalty decision. As the Divisional Court confirmed in Karklins v. Toronto (City) Police Service, 2010 ONSC 747 at paragraph ten:

[The Commission’s] 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.

19The Commission is not permitted to reweigh factors relevant to penalty disposition and substitute its own opinion as to the appropriate penalty. The Commission stated the following in Kobayashi et al and the Waterloo Regional Police Service, 2015 OCPC 12 at paragraph 33:

Unless there has been an error in principle or relevant factors have been ignored, the Commission cannot interfere with a decision on penalty even if it might have come to a different conclusion if hearing the matter at first instance [citations omitted].

ANALYSIS

Issues Related to the September 24, 2017 Gun Call Investigation

20The first two grounds of appeal relate to the appellant’s conduct when responding to the gun call on September 24, 2017. The appellant was one of many officers to respond to the 9-1-1 call from the Uber driver who observed a gun in the waistband of a group of passengers he dropped off at a residence in Brampton. The appellant arrived at a staging area and took a statement from the driver, details of which he recorded the computer aided dispatch, then queried the address the passengers had been dropped at and a male, “M.K.”. His notes did not record these queries though they were inputted into a database. In the meantime, the officers who attended the residence spoke to M.K. himself, who was eventually identified as a person of interest in the investigation. He asked the officers whether they knew the appellant, calling him a “friend” and referencing him by first name. He also said that he knew the appellant’s brother. No arrest was ever made in relation to this call.

21Further investigation by PRP revealed the appellant had personal connections to some of the persons of interest in the investigation. Some of the social connections were weaker than others but there was evidence before the hearing officer the appellant did know, either on his own or through his brother, some of these individuals. There was also evidence the identities of these individuals and their status as persons of interest were made known in a police report that followed the September 24, 2017 investigation. The appellant did not take any steps to disclose his personal connections to these people to his superiors.

22One of the officers reported M.K.’s question about the appellant to superiors and Internal Affairs began an investigation. According to evidence from PRP witnesses, a separate criminal investigation into the appellant commenced in February of 2018 to eliminate the possibility he had committed the offence of obstructing police in relation to the gun call.

23As part of the criminal investigation, the PRP obtained a production order pursuant to s. 487.016 of the Criminal Code for data transmission on the appellant’s phone during the 24 hours of September 24, 2017. The results of the production order showed S.N., a woman who was a social contact of the appellant’s, texted and called the appellant at the time he was assisting with the gun call and called him again later that night. Investigators learned she had a close personal connection with one of the persons of interest in the gun investigation. During his second compelled interview, the appellant disclosed S.N. called to tell him the police were at her friend’s house and to ask what was going on. He said he replied he could not discuss the investigation. He said, in his interview and again at the hearing, he viewed this as an insignificant social call and did not think it was important enough to make notes about or advise his superiors about.

24Though no criminal charges were laid against the appellant, the prosecution relied on the data transmission resulting from the production order to prove the appellant committed discreditable conduct by not disclosing the communications from S.N. In closing submissions at the hearing, relying on Power v. London Police Service, 14 OCPC 2013, the appellant argued the count should be stayed as the criminal investigation was a pretext for the PRP to use criminal law powers to further what was at core a professional misconduct investigation.

25The hearing officer heard evidence of the two PRP officers tasked with the criminal investigation and obtaining the production order. After reviewing this evidence in detail, along with some investigative materials made exhibits at the hearing, she concluded the criminal investigation was genuinely that and not devised as a pretext to gather evidence in the broader misconduct investigation. She also made a finding the affidavit to obtain the production order disclosed the requisite grounds and there was no basis to exclude the evidence. As a result, she did not stay the misconduct count in relation to the gun call. She relied on the results of the production order to find the appellant guilty of discreditable conduct by not disclosing or making notes of this contact from S.N. on September 24, 2017, in relation to that investigation.²

26The Commission now turns to the specific issues raised by the appellant in relation to this count of discreditable conduct.

The hearing officer did not err by admitting the evidence obtained through the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) production order in relation to the September 24, 2017 gun call

27The appellant has raised three sub issues with respect to the production order.

1. The bona fides of the criminal investigation in the Power stay of proceedings analysis

28The appellant submits the hearing officer’s finding that the production order was obtained in the context of a bona fide criminal investigation— is infected with error and must be set aside on appeal. He submits the “only possible inference” based on the evidence is that the investigators obtained the production order as a pretext to gain information and possible evidence solely for the PSA investigation.

29The hearing officer heard directly from the two officers who helmed the investigation into the appellant that resulted in the production order. She made clear findings of fact, based on their evidence and her review of relevant exhibits at the hearing. The PRP embarked on a distinct, narrow investigation to eliminate the possibility the appellant assisted persons of interest evade detection on September 24, 2017. A key step taken in the criminal investigation into the appellant was to obtain a production order only in relation to September 24, 2017, and not some broader time period to investigate more generally whom the appellant was in contact with in the community.

30The appellant says the hearing officer ignored relevant evidence by not averting to the fact the officers did not write in their notes that the investigation into the appellant was criminal in nature. Nothing turns on this submission. As the respondent fairly points out, the officers were not obligated to write the word “criminal” when their investigative activities surrounding the production order clearly had that focus.

31The appellant further submits the hearing officer erred by referring to the fact the PRP sought a Criminal Code production order to support finding the investigation was criminal in nature. The Commission agrees this is circular reasoning. However, that was one of several factors referenced to support her finding the production order was obtained as part of a separate, criminal investigation. Her conclusion is largely based in the hearing evidence of the officers, which she accepted. This minor flaw in logic is not a basis to now, on appeal, substitute a factual finding the officers involved themselves in a ruse to obtain a production order, and then lied about it in their hearing evidence.

32Finally, the appellant points to the fact the application to obtain the production order describes one of the offences as “party to offence, contrary to s. 21(1)”. He submits the fact s. 21(1) does not create an actual criminal offence and the carelessness of listing this as an offence demonstrates the pretext of the criminal investigation. The Commission agrees with the observation s. 21 does not create a substantive offence in relation to which an order can be sought. However, as all the circumstances make clear, the focus on the investigation was whether the appellant had aided or abetted the subjects of the gun call in leaving the scene undetected. This signals nothing more than a careless drafting error. The application also sets out obstructing police contrary to s. 129 of the Criminal Code as an offence in relation to which the order was sought.

2. The evidence obtained in the production order should not have been admitted as there were “no reasonable grounds to suspect”

33The appellant submits the fruits of the production order should not have been admitted at the hearing as the statutory and constitutional requirements to obtain the production order were not met. Section 487.016 of the Criminal Code authorizes a production order for transmission data where there are “reasonable grounds to suspect” an offence has or will be committed and the data will assist in the investigation of the offence. The hearing officer had before her the affidavit to obtain the order and also heard the evidence of the affiant at the hearing. She fairly noted that no application to exclude the evidence obtained had ever been made but went on to consider the argument on its merits.

34The hearing officer noted that her task was to determine whether the issuing justice “could” have granted the order with the information provided. She reviewed the information set out in the affidavit and concluded the issuing justice could have decided this met the threshold of reasonable suspicion. Applying the law as to what constitutes “reasonable suspicion,” the Commission sees no basis to interfere with the hearing officer’s conclusion. The information before the issuing justice had to establish “the possibility of uncovering criminality, not the probability of doing so” as is the case with reasonable belief. There is no submission that the hearing officer misstated the test for the legal standard of reasonable suspicion or misapprehended the relevant evidence.

35In his written submissions, the appellant effectively invites the Commission to approach the review of the production order de novo and assess the quality of inferences the issuing justice could have drawn based on the contents of the affidavit. The affidavit set out that the appellant’s brother had been co-accused with three of the Uber passengers in the gun call. The appellant volunteered to respond to the call, was one of the first officers on scene, and shortly thereafter queried the residence and M.K. M.K. asked one of the officers if he knew his “friend,” the appellant. The other passengers had left the residence before the police had time to arrive, within seven minutes of the dispatch. It is not open to the Commission, on appeal, to reweigh the possible inferences that could be drawn from this constellation of facts and second guess the hearing officer’s conclusion that the issuing justice could have found the threshold of reasonable suspicion was established.

3. There was an incurable error in the production order application

36For the first time on appeal, the appellant argues there is a technical error in the application for the production order that is incurable. The production order issued by the justice was for “Production of Documents” (Form 5.005) which is the proper process for an order made under s. 487.014 of the Criminal Code. A production order under s. 487.014 requires the applicant to establish reasonable grounds to “believe” an offence has been committed and the documents will assist in an investigation. The production order in this case was made for transmission data only, pursuant to s. 487.016, which uses Form 5.007 as the proper process. A production order for transmission data requires an applicant to meet the lower standard of “reasonable grounds to suspect.”

37The appellant argues this error makes the production order facially invalid. The appellant further submits the error cannot be cured as technical in nature, but risks “confusion or overly broad conduct not permitted by the section” given the two different standards of reasonable grounds at play. This is a new argument raised for the first time in the factum filed on appeal. No reason is provided for the failure to raise the issue before the hearing officer, nor is it listed in the appellant’s notice of appeal.

38Section 87(1) of the PSA establishes a 30 day period for an appellant to appeal the hearing officer’s decision by a written notice “stating the grounds on which the appeal is based”. The Commission’s jurisprudence has been clear there is no authority in the PSA or the Commission’s rules for the appellant to add further grounds of appeal following the expiration of the 30-day period: Byrne v. Ontario Provincial Police, 2007 ONCPC 15. In Byrne, the Commission’s Rules of Practice in place at the time repeated the requirement in the PSA that the notice of appeal is to state the grounds on which the appeal is based. The current Rules of Practice do not contain a similar provision, although the Commission’s Notice of Appeal form requires an appellant to set out the grounds for their appeal. However, this does not alter the fundamental holding in Byrne that “there is no authority in the Act or Rules for an appellant to add further grounds of appeal after the expiry of the thirty-day appeal period.”

39Even if the Commission had discretion to consider grounds of appeal not alleged within the statutory time limit, we would decline to do so in these circumstances. As noted the appellant did not raise this issue before the hearing officer or provide an explanation as to why not. The Commission is not satisfied that the appellant has established the first pre-condition outlined by the Court of Appeal for Ontario to avoid this prohibition. (see R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016] S.C.C.A. No. 423 at paras. 37-41; R. v. Bielli, 2021 ONCA 222 at para. 52; Green and Lakey v. Toronto Police Service, 2012 ONCPC 8 at paras. 80-81).

40Accordingly, the Commission declines to consider this issue on appeal.

The finding of discreditable conduct in relation to the September 24, 2017 gun call incident is reasonable and supported by the evidence

41This count of discreditable conduct was based on the appellant’s non-disclosure to superiors, and failure to take notes, of the fact S.N. called him about the investigation while it was ongoing, and the fact he had personal connections with persons of interest in the investigation.

42Through the production order, the police obtained information that S.N. contacted the appellant the day of the gun call. The only evidence of the substance of their brief conversation, however, came from the appellant’s own statements and at the hearing. The evidence about the appellant’s connection to persons of interest in the firearms investigation came from the PRP’s own investigation into the appellant’s personal contacts but also from the appellant’s statements at his second compelled interview.

43The appellant argues that the finding his failure to disclose these facts to superiors amounted to discreditable conduct is unreasonable because it is based on an “absence of evidence.” We disagree. There was ample evidence from which the hearing officer drew her conclusions the appellant knew people he had personal connections with were persons of interest in the investigation and failed to disclose it. The police investigated and discovered personal associations between the appellant and three persons of interest. Further, the appellant’s own interview statements and evidence confirmed the personal links. The hearing officer’s finding the non-disclosure of these connections and the contact with S.N. was discreditable conduct was thus grounded in a comprehensive, if somewhat complex, body of evidence. She was entitled to make the findings of fact she did. As noted, much of the evidence about the personal connections between the appellant and the others involved in the gun call investigation comes from the appellant himself.

44The discreditable conduct charge was not based on a theory the appellant had actively assisted these people evade detection on September 24, 2017. The PRP investigated this angle in a separate criminal investigation and no charges were laid against the appellant. The professional misconduct charge was laid on the basis of his failure to disclose he had personal connections with people involved in the investigation and had been contacted by an associate while the investigation was ongoing. In this context, the hearing officer was entitled to draw her ultimate conclusion his non-disclosure of this information to superiors, in the context of an ongoing investigation on the whereabouts of a firearm, amounted to misconduct. She wrote (at p. 128):

Constable Gangadeen demonstrated an association with known criminals who were persons of interest in the Abitibi Lake call and was not forthright with the organization or investigators. As a serving police officer, he had a responsibility to assist the investigation and instead, he withheld information about his associations, connections, and text/phone calls with [S.N.]. I agree with the Service prosecutor that if the public knew that officers attended calls that involved persons or associates involved in criminality or were alleged to have been involved in criminal activity, and they were not forthright about it, these actions would bring serious discredit to the Service. This is serious misconduct.

45Nor does the Commission accept the appellant’s argument the failure to disclose this information was a “mere error in judgment” that would not bring discredit to the police service. That the appellant didn’t tell investigators he knew the people involved in a serious investigation he had been a part of cannot be described as a lack of prudence or small oversight. In any event, the hearing officer’s conclusions, reproduced above, demonstrate she did not view this as an oversight, but a very serious omission that brought discredit to the service. We see no error with that conclusion.

The hearing officer’s conclusions on the discreditable conduct related to police database searches are reasonable and supported by the evidence

46Counts one through five of the first notice of hearing and count seven on the second notice of hearing all related to the appellant accessing police databases - CPIC, PQT/Niche queries, police occurrence reports and vehicle inquiries - for no operational purpose, with no notes taken, and while in a conflict of interest.

47Count one of the December 2017 notice of hearing set out particulars the appellant made approximately 150 database queries regarding eight different individuals between December 4, 2015 and December 30, 2016. All of the individuals were involved in Project Interlock, the investigation that had resulted in the arrest of the appellant’s brother in December 2015.

48The PRP investigation also revealed that, during this time frame, the appellant had accessed 15 PRP occurrence reports of robberies, carjackings and thefts associated to Project Interlock, sometimes on multiple occasions (count three), as well as database queries of vehicles associated to Project Interlock.

49After the appellant returned to work in August 2017 following his first suspension, a police database audit was conducted on the appellant for the period between September 27, 2017 and April 20, 2018. The audit revealed he had queried, among others: one of the persons of interest in the September 24, 2017 firearms investigation; an individual who had connections to parties previously charged together with the appellant’s brother; and his parents.

50The appellant pleaded guilty to discreditable conduct for the database queries of his parents. The prosecution’s position, with respect to the multiple queries of individuals who had been associated to the appellant’s brother and/or Project Interlock, was that the queries were made for no operational purpose and while the appellant was in a conflict of interest. The particulars of these discreditable conduct counts also listed the appellant’s failure to make any notes explaining the purpose of these queries.

51The appellant’s position at the hearing was that these queries represented a fraction of queries he did on a routine and repeated basis as part of his own pro-active policing strategy. He gave evidence he checked thousands of individuals in Peel Region who were known criminals or gang affiliates to see if they had bail or curfew conditions or outstanding warrants. He said he had not received any specific training he could not do this and thought it was a good way of dealing with “frequent flyers.” He mentioned he did not take notes as he was often on the road when making the checks.

52The hearing officer went through each set of inquiries related to each individual particularized in the two notices of hearing. She observed at no point was the appellant assigned to or otherwise engaged in an investigation of any of these people.

53The appellant submits the hearing officer’s finding that he was in a conflict of interest was unreasonable. He submits the hearing officer failed to indicate in her reasons what the nature of the conflict of interest was between the appellant and these individuals. She failed to avert to the fact the appellant testified he would be perceived as biased or conflicted if he did not include them in his self-initiated, proactive policing techniques.

54First, the Commission observes the “conflict of interest” element of the appellant’s multiple queries was only one basis on which she concluded the queries amounted to discreditable conduct. As the appellant’s counsel acknowledged at the appeal hearing, conflict of interest was not the only route to find these queries amounted to discreditable conduct.

55The issue of conflict here is not that the appellant would be perceived as biased or partial to individuals who were associates of his brother. Rather, the issue, which the hearing officer found as fact, was the appellant conducted searches on those individuals for no purpose other than the fact they were associated to his brother. The hearing officer’s findings of fact included that the appellant conducted the inquiries on these individuals (and their vehicles, or police occurrence reports relating to them) because they had a connection with his brother, and not for the general pro-active policing purpose he claimed. She made specific credibility findings that she disbelieved the appellant’s claims he knew the individuals he queried were involved in criminal activity, but not involved with his brother. She found he knew their affiliation with his brother and that was why he made the queries, not for an operational purpose.

56The core of the applicant’s discreditable conduct charge was that he had some passing familiarity with the individuals and should have stepped away from investigating them (see, Humphries v. Kelly and Durham Regional Police, 2003 CanLII 87688 (OCPC)). The conflict was that he looked them up only out of curiosity borne from their relationship to his brother and his brother’s arrest.

57The hearing officer’s factual findings in this regard are clear:

[The appellant] may not have known Project Interlock by name, but he knew who was involved, accessed them on PQT, Niche and/or CPIC, knew associations, and read the occurrences over a ten-month period. He was asked if [A] was involved in the same robberies as his brother. He stated he did not know, but it would be impossible not to know if he knew the individuals in the crew, ran [A] (for example) 13 times on PQT/Niche over an 11-month period, and read occurrences that outlined his involvement, all before his compelled interview.

Constable Gangadeen was in a conflict of interest with any connection with Project Interlock and the criminal associates of [his brother]. He had no operational reason to view the occurrences other than for personal information and to satisfy his need for information or to make sense of what occurred as the information was not forthcoming. He made no notes of viewing these occurrences and did not outline what purpose he had in reading the occurrences and viewing the associations. Members of the community, apprised of the facts, would be disappointed that the police service allowed an officer to continue to dig for information associated to this crew, given their affiliation with a family member and articulate his justification as “information purposes”. This conduct was objectively discreditable. [Emphasis added]

58The Commission also sees no merit in the submissions that the finding the appellant had no operational purpose to make the queries is unreasonable. First, as set out above, the hearing officer had found as fact the appellant made the queries about the individuals and related occurrences because of curiosity or a desire to “dig for information” given their affiliation with his brother. This is clearly not an operational purpose.

59Second, quite apart from the affiliation with his brother, the hearing officer found a number of other reasons there was no operational purpose for the appellant’s queries. She conducted a careful and detailed review of the timing of the queries and concluded they were often made when the appellant was on desk assignment or off duty. She found there was no operational reason to conduct queries after hours and there was no evidence he was conducting an investigation. This caused her to conclude “his rationale for these queries is disingenuous and lacking credibility” and the queries were a “dangerous practice that displays his overinvestment in his role as a police officer.”

60Having made these factual findings about the impetus behind the appellant’s database queries, the hearing officer concluded these were serious acts of discreditable conduct. She directed herself on the law concerning misuse of police databases (e.g., Coon v. Toronto Police Service, 2003 CanLII 85797 (OCPC) and Hampel v. Toronto Police Service, 2008 ONCPC 6. She held that the misuse of police databases went to the heart of officer safety and the public’s trust in police services, and that databases are not to be used for curiosity purposes as was the case here. There is no basis to interfere with these findings of misconduct.

The hearing officer did not misapprehend the evidence about the July 29, 2016 off-duty incident

61Count four of the second notice of hearing alleged the appellant committed discreditable conduct while off duty early in the morning of July 29, 2016. Constable Brown gave evidence at the hearing that she encountered the appellant and a group of his friends while she was on modified duty with her partner, Constable Cook, at an outdoor concert in Brampton. They approached the appellant’s group as they appeared to be trying to climb a fence to access the concert. According to her, while the appellant’s friends were polite, the appellant was belligerent, uttered profanity and “kissed his teeth” at the two officers. She testified she found the encounter so charged that she asked the appellant to remove his hands from his pockets and unclipped her taser. Cst. Brown did not take notes of the incident and reported it many months later, after she recognized the appellant at work.

62The appellant testified and denied behaving in this manner. He said Cst. Brown approached him and yelled at him to get off of a fence and to take his hands out of his pockets. His evidence was the interaction took about five minutes and he and his friends walked away. He denied being disrespectful, using profanity or “kissing his teeth.”

63Cst. Cook did not give hearing evidence. There was reference to his notes in both the appellant’s second compelled interview, the transcript of which was a hearing exhibit, and during Cst. Brown’s cross examination. The references to Cst. Cook’s notes in the hearing described a somewhat less charged encounter than Cst. Brown recalled but did make a note of the appellant “kissing” his teeth.

64The hearing officer recognized this count came down to an assessment of Cst. Brown and the appellant’s credibility. She directed herself to follow the credibility analysis established by Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 B.C.C.A. She made a number of specific observations that led her to conclude Cst. Brown’s evidence was credible and accepted her evidence. Though she did note that Cst. Brown’s failure to take notes was “troubling” she concluded her evidence was straightforward, lacked embellishment and contained persuasive details about a highly charged interaction. She rejected the appellant’s evidence.

65The appellant submits the hearing officer erred in the credibility analysis by noting there were “three versions” of this event, and effectively considered the version of Cst. Cook, who was not a witness. The Commission does not agree the hearing officer relied on the portions of Cst. Cook’s account of the events to draw the conclusion Cst. Brown’s evidence was credible and the appellant’s was not. The hearing officer referred to the fact there are “three versions of the event” in reference to the inconsistencies between Cst. Brown’s hearing evidence and Cst. Cook’s notes, which were elicited in cross-examination. This was no more than an indication she had averted to the slightly more tepid account that Cst. Cook had when assessing Cst. Brown’s credibility. She ultimately concluded the inconsistencies could be explained. She made this observation in fairness to the appellant.

66At a different part in her reasons on this count, the hearing officer states “both Constables Cook and Brown stated” the appellant “kissed his teeth” as part of this interaction and that she had “no reason to doubt the veracity of their evidence as it was credible.” This comes closer to what the appellant complains of, which is reliance on Cst. Cook’s notes for their truth in making factual determinations on this count. The Commission still does not agree this constitutes a legal error in the analysis of witness credibility. This statement refers to one portion (i.e., teeth kissing) of an interaction that took place over five or six minutes. The hearing officer had already found Cst. Brown’s hearing evidence about the interaction to be credible and explained why.

67Even if the hearing officer did rely on a portion of Cst. Cook’s notes in making the determination the appellant’s evidence about this interaction was not credible, she was entitled to do so. Cst. Cook’s account is hearsay, which is admissible pursuant to s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

68While it is true that not all hearsay ought to be admitted, and that a tribunal must be alive to the inherent dangers of relying upon hearsay evidence, in this case the hearing officer’s reference to Cst. Cook’s recollection of the appellant’s conduct in this portion of her decision is marginal and we are not satisfied that the hearing officer placed a significant amount of weight on it. This is not a situation where the hearing officer made a “blanket acceptance” of Cst. Cook’s statements as hearsay evidence (see e.g. Cudney v. St. Thomas Police Service, 2021 ONCPC 15 at para. 29).

The finding of guilt on insubordination at the May 8, 2019 compelled interview was not unreasonable

69Count nine of the April 2020 notice of hearing alleged the appellant was insubordinate at a compelled interview on May 8, 2019 by words and demeanour. The hearing officer had a transcript of the interview and heard evidence from the appellant and the interviewing officers.

70The hearing officer took pains to point out she did not simply accept the opinion of the officers who testified that the appellant was insubordinate at the interview. She noted that she had read the transcript a number of times and, to some extent, was willing to “overlook” some of the language the appellant used given the six-hour length of the interview and the stress and strain he was under. She ultimately found the appellant crossed the line toward the end of the interview when he told the interviewers they annoyed and agitated him and indicated he did not care about their rank.

71The appellant submits the finding of guilt of insubordination is unreasonable because the hearing officer ignored “medical evidence” that the appellant had post-traumatic stress disorder (PTSD) at the time of the interview, and this was one of the reasons he made the comments in the interview he testified he came to regret.

72The only evidence the appellant suffered from PTSD at the time of the interview is his own passing remarks about this in his hearing evidence. The hearing officer averted to that testimony, citing the appellant’s own testimony that by May of 2019 he had a “clinical diagnosis” at the time. There was no further mention of this topic at any point in the hearing on the charges, let alone medical or any other relevant evidence in relation to it. The hearing officer considered the stress and strain of the interview at various points in her reasons when considering whether the test for insubordination had been met on the evidence. The hearing officer considered all of the relevant facts and context in coming to her conclusion there was clear and convincing evidence of insubordination. There is no basis for the Commission to find this conclusion unreasonable.

The hearing officer did not err by imposing a penalty of dismissal

73The appellant’s main submission on penalty is the hearing officer erroneously applied the principle of progressive discipline by ordering dismissal as the penalty for the second notice of hearing. The December 17, 2017 notice did not notify the appellant the penalty of dismissal may be imposed pursuant to s. 85(4) of the PSA. The hearing officer accepted she therefore could not impose the penalty of dismissal on the counts related to the vast majority of improper police database checks, and imposed a demotion on that notice.

74The appellant took the position at the penalty hearing the counts proven on the second notice were not serious enough to warrant dismissal and, as the appellant was a first-time offender, the hearing officer could not apply progressive discipline between the two notices of hearing to reach the penalty of dismissal.

75The prosecution submitted the hearing officer could look to the overall pattern of discreditable conduct and insubordination that spanned the two notices of hearing in arriving at the ultimate penalty of dismissal in respect of the second notice. This is what the hearing officer did. She wrote:

I agree with [counsel] that none of the findings of guilty within either NOH would justify dismissal on its own; however, it is incumbent upon me, when assessing Constable Gangadeen’s overall character, his actions and ability to wear the uniform of a police officer in the community, that I look at the overarching and cumulative actions of the officer, in context, to determine his suitability to continue as a police officer. Upon review of the case law, I am compelled to examine his whole employment record, including his performance evaluations and cumulatively, all the findings of guilty when I consider the possibility of rehabilitation and suitability as a police officer. The case law did not direct me to peel away each count within each Notice and apply a separate penalty. To do so would offend the disciplinary process and would offer no support to the public interest in ensuring police officers are held accountable for their actions. … I am looking at the offences in context and in totality, not as progressive discipline.

76The Commission sees no error in this reasoning. The hearing officer did not err by increasing the penalty on the second notice of hearing on the footing it was a second offence. Rather, she looked at the totality of the appellant’s employment history, which included the entire pattern of misconduct that spanned the two notices of hearing and otherwise included a brief and relatively unremarkable career at the PRP, in applying the penalty principles. The case law makes clear employment history is a factor for a hearing officer to consider in the dismissal analysis: Galassi v. Hamilton Police Service, 2005 Can LII 20789 at para. 35 (Ont. Div. Ct.)

77The Commission notes the hearing officer did not accept the submission at the hearing that the misconducts in the second notice were minor and warranted minor penalties. The hearing officer also viewed the nature of the misconduct in the second notice as serious. She structured her analysis of the penalty largely around the factors set out by the Commission in Krug v. Ottawa Police Service, 2003 CanLII 85816 at para. 63. As stated by the Commission in Krug at para. 70, “there is no requirement that any one factor be given more weight than another. The seriousness of the offence alone may justify dismissal. Aggravating factors can serve to diminish the weight of any mitigating factors”: see also Husseini v. York Regional Police Service, 2018 ONSC 283 at para. 36 (Div. Ct.).

78Of these factors, the hearing officer placed significant weight on the seriousness of the misconduct, public interest and the appellant’s failure to recognize the misconduct in her reasons for dismissal. For example, she clearly viewed it as very serious that the appellant continued to make database queries on individuals that were co-accused with his brother, his family members and even himself a very short time after returning from suspension and being served with a notice of hearing for similar misconduct.

79It was not an error to consider the overall context in which the appellant committed these further database searches and it does not mean, as the appellant suggests, the hearing officer has treated the first suspension and notice of hearing as a prior finding of guilt. The hearing officer was entitled to look at the entire context in which the misconduct took place, to assess its seriousness and the impact it would have on the public’s trust in the service should the appellant remain employed, in determining whether the appellant’s usefulness to the service is annulled.

80The appellant submits the hearing officer improperly used his lack of remorse or responsibility as a factor that was “aggravating to penalty.” Throughout her reasons for disposition, the hearing officer refers to the appellant’s lack of appreciation for the rules and standards that govern police officer’s conduct and his failure to take seriously the fact he was not somehow exempt from these rules. This critique of the appellant’s overall attitude and unwillingness to abide by the rules is what the hearing officer refers to as “aggravating to penalty.” This is distinct from the hearing officer considering the appellant’s lack of remorse in the sense of choosing not to plead guilty.

81The appellant argues the hearing officer’s comments on his lack of remorse “went to the core” of the dismissal decision. On the contrary, this was one of many factors the hearing officer considered. Even if the hearing officer did indeed treat a lack of remorse or a sincere apology as an aggravating factor (rather than as an absence of mitigation), such an error would not automatically render the penalty invalid. Even if the hearing officer’s treatment of this issue constitutes an error, we are not satisfied that it is an error in principle such that it rendered the penalty or otherwise unfit. We do not consider the error, if any, to “go to the core” of the penalty decision. Cst. James Ebdon v. Durham Regional Police Service, 2020 ONCPC 5 at paras. 27-28).

82Finally, the Commission does not accept the appellant’s submission the hearing officer erred by failing to consider the PRP’s role in his “facilitating” his misconduct as a mitigating factor. It was suggested that the PRP should have accommodated the appellant’s concerns and curiosity about the circumstances of his brother’s arrest. The hearing officer did write in her penalty decision “[p]erhaps the organization could have offered him more support to assuage his concerns, but he was not entitled to such information by virtue of his position and it was not his role to undertake these queries to satisfy his curiosity.” She then declines to give weight to the role the PRP could have played as a mitigating factor. It is unsurprising the hearing officer repeatedly held the appellant’s misconduct flowed from his apparent belief rules and policies did not apply to him, not because of a systemic issue or failure to accommodate the appellant.

83The Commission sees no error in principle in the hearing officer’s decision on penalty. She conducted a thorough analysis of the required factors when arriving at the penalty of dismissal and applied them to the facts that she found. There is no basis for the Commission to interfere with the penalty.

ORDER

84Pursuant to s. 87(8)(a) of the PSA, the Commission confirms the hearing officer’s misconduct and penalty decisions.

Released: January 31, 2023

Emily Morton

­­­­­­_______________________ Laura Hodgson

Louise Charette

Footnotes

1. 1The appellant did not raise any issues with respect to the finding of guilt on the neglect of duty counts in his written or oral submissions on appeal.
2. 2The Commission notes there was never a proper application to either exclude evidence or stay the proceedings before the hearing officer. The hearing officer considered these two arguments, made at the time of closing submissions, on their merits despite the lack of proper notice.