TRIBUNALS ONTARIO Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission civile de l’Ontario sur la police
File: 22-ADJ-008
Between:
Police Constable Melisa Rancourt
Appellant
And
Greater Sudbury Chief of Police
Respondent
Decision
Panel: E. Morton, Vice Chair L. Hodgson, Vice Chair C. Osterberg, Member
Participants: D. Butt, counsel for the appellant J. Dubois, counsel for the respondent
Held by Videoconference: April 20, 2023
Introduction
1The Appellant, Police Constable Melisa Rancourt, pleaded guilty to two counts of discreditable conduct contrary to s. 2(a)(xi) 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 November 30, 2022, the Hearing Officer, Superintendent Peter Lennox (retired), ordered the following penalty:
…imposed, under s. 85(1) (c) of the Police Services Act, will be a gradation in rank from first-class constable to third-class constable for a period of one year, followed by one year in the rank of second-class constable, conditional on satisfactory performance of duty by the officer and the concurrence of her unit commander. The respondent officer will also be required to perform 40 hours of volunteer work through the Friends of Simon Wiesenthal Centre for Holocaust Studies, and this is imposed under s. 85(7) (c) of the Police Services Act.
2The Appellant appeals the penalty imposed.
Disposition
3For the reasons that follow, the appeal is allowed in part and the penalty order is varied from “conditional on satisfactory performance of duty by the officer and the concurrence of her unit commander” to “conditional on satisfactory performance of duty by the officer, as confirmed by her unit commander.” The appeal is otherwise dismissed and the penalty is confirmed.
FACTUAL BACKGROUND
4The first count of discreditable conduct relates to incidents that occurred on September 26, 2021 when the Appellant attended a hockey arena in Espanola. At the time, attendees were required to provide proof of vaccination in accordance with the Reopening Ontario Act (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17. The Appellant refused to provide proof or to leave the complex when requested. The evidence was she had announced her intention to refuse to provide proof on social media prior to attending. Staff called the Ontario Provincial Police (OPP) who served the Appellant with a Provincial Offence Notice charging her under the Trespass to Property Act, R.S.O. 1990, c T.21, and warning her she would be charged if she reattended.
5The Appellant returned the arena later that day. The police attended again and the Appellant attempted to interfere with her arrest and engaged in a physical altercation with the arresting officer. When being removed from the arena while under arrest, the Appellant made a comment in the presence of a number of community members comparing the enforcement of the public health laws to Nazis.
6As a result of the incident, in addition to the trespassing charge, the OPP charged the Appellant with resisting arrest contrary to s. 129 (a) of the Criminal Code. These charges were “diverted” on January 10, 2022 through the Direct Accountability Program after the Appellant acknowledged responsibility for her actions and made a $750.00 charitable donation to the Espanola Regional Hospital and Health Centre. The events at the arena on September 26, 2021 formed the subject matter of the first count of discreditable conduct.
7The second count of discreditable conduct related to several social media posts made by the Appellant between September 2021 and January 2022. The posts were made despite the Appellant having been counselled on September 14, 2021 about inappropriate posts by a Sergeant at the Service, and despite the September 26, 2021 incident and resulting charges. The social media posts addressed the Canadian Charter of Rights and Freedoms, agreement with other comments comparing law enforcement in Canada with law enforcement in Nazi Germany that resulted in the death of Anne Frank, setting up a web page to fund her legal defence for the TPA and criminal charge and multiple negative comments about public health officials and law enforcement.
8The Notice of Hearing was served on the Appellant on February 8, 2022. After the Appellant pled guilty to both counts the Hearing Officer heard witness testimony about the circumstances of the misconducts over two days to support the findings of guilt as the parties were not able to agree to a statement of fact.
ISSUES ON APPEAL
9The Appellant raises the following issues on appeal:
Did the Hearing Officer err by improperly making the Appellant’s progression through rank conditional on “the concurrence of her unit commander”?
Did the Hearing Officer err in principle in arriving at the penalty by:
a) failing to give sufficient weight to the Appellant’s rehabilitation;
b) unfairly criticizing her displays of remorse;
c) incorrectly treating social media posts as separate misconducts; and,
d) incorrectly applying the factor of consistency of disposition?
STANDARD OF REVIEW
10As the Divisional Court confirmed in Karklins v. Toronto (City) Police Service, 2010 ONSC 747 at paragraph 10:
[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.
11The 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.
12Subject to the foregoing, the ultimate question is whether the penalty imposed was reasonable.
ANALYSIS
1. The penalty of demotion as worded is improper as it gives unfettered discretion to the unit commander
13At the penalty hearing, the Respondent submitted that while dismissal was in the range of available penalties for the misconduct, it sought a gradation in rank from first-class to fourth-class constable, with one year spent at the ranks of fourth, third and second-class constable. The Appellant sought forfeiture of between 24 and 40 hours, concurrent for both counts, along with mandatory volunteer work. As the Appellant’s position was forfeiture was the appropriate penalty, she did not make submissions how a penalty of demotion should be structured in terms of gradation in rank and the process for reinstatement. The Respondent also did not make submissions on any conditions for reinstatement but made it clear in penalty submissions it sought a reduction in rank for a minimum of twelve months at each level, before the Appellant would be eligible to move to the next rank.
14The Hearing Officer’s ultimate conclusion on penalty was that gradation in rank to fourth class, as sought by the Respondent, was “unduly harsh, considering mitigating factors such as the [Appellant’s] attempts at remediation”. He also considered forfeiture too lenient a penalty considering the serious misconduct that spanned over a period of months. The Hearing Officer ordered a gradation in rank from first-class to third-class constable for one year, followed by one year in the rank of second-class constable. He made progression through the ranks not automatic, but “conditional on the satisfactory performance of duty by the officer and the concurrence of her unit commander.”
15The Appellant submits the Hearing Officer erred by delegating his power under s. 85(1) (c) of the Act to “demote the police officer, specifying the manner and period of the demotion” the Appellant’s unit commander. In oral submissions before the Commission, the Appellant focused on the argument it was improper to make reinstatement conditional on the concurrence of the unit commander, with no constraints on how the discretion to concur or not concur is exercised. The Appellant submitted this was an error as it gave the unit commander the power to decide to not concur with the Appellant’s progression for an arbitrary reason unrelated to satisfactory performance of duty, or for no reason at all. In oral argument before the Commission the Appellant submitted an appropriate remedy for this ground of appeal is for the Commission to excise the condition “and with the concurrence of her unit commander” from the penalty order.
16In reply, the Respondent submits the penalty order as worded reflects the Hearing Officer’s intention the Appellant’s progression through the ranks to first-class constable not be automatic after the period of 12 months. The Respondent argues the Hearing Officer was clearly concerned with the Appellant’s ongoing misconduct after the September 26, 2021 incident, and even in the face of warnings from her superior and chose not to make reinstatement automatic but make the Appellant eligible to move on to the next rank after the minimum period of one year. The Respondent submitted at the appeal the current wording of the order makes clear the Hearing Officer’s intention the Appellant’s movement up from third-class to first-class constable is not automatic, be based on satisfactory work performance following the one-year reduction in rank.
17The Commission agrees the Hearing Officer’s order, by making the Appellant’s progress from third- to second-class constable conditional on both her satisfactory performance of duty and “the concurrence of her unit commander” without putting any parameters around that concurrence, is improper. The penalty order as worded makes the mere “concurrence” of the unit commander one of the conditions precedent to the Appellant’s progression in rank. There is no qualification as to what standards or principles guide the “concurrence” of the unit commander. This gives an unfettered discretion to the unit commander to concur or not concur with the Appellant’s progression, even if the other condition of satisfactory performance of duty is met. The Commission has found this approach to be improper in the past: Chan v. Toronto Police Services, 2010 ONCPC 6.
18At the hearing of the appeal, the Respondent did not concede the condition “with the concurrence of her unit commander” should be excised from the penalty order. However, the Respondent did not strongly dispute the principle the unit commander should not have an unchecked discretion to concur or not concur with the Appellant’s progression for any reason. Counsel for the Respondent stressed the intention of this aspect of the penalty order, as worded, is to ensure there is not an automatic progression from third-class back to first-class constable and to ensure that progression is based on assessments.
19The Commission agrees with the Appellant that, as currently worded, the penalty order is unclear whether the unit commander’s decision to concur or not with the Appellant’s progression is tied to an assessment of her performance assessments. This leaves the impression the unit commander has a residual discretion to not concur in her progression even if performance assessments are positive, and potentially based on arbitrary factors that are unrelated to satisfactory performance of duty. The Commission holds the failure to clearly define any standard by which the unit commander will exercise their discretion to concur or not concur with the Appellant’s reinstatement is unfair and is an error in principle. Pursuant to s. 87(8) (a) of the Act, the order is reworded as set out in paragraph three of these reasons.
2. The Hearing Officer did not otherwise err in principle in arriving at the penalty
a. Rehabilitation
20The Appellant submits the Hearing Officer erred by discounting the impact of the Appellant’s mitigating efforts by the time of the penalty hearing by stating her past conduct should be “given as much or more weight than her subsequent positive efforts.” She submits this evinces an incorrect understanding of the primacy of an officer’s post-misconduct efforts to rehabilitate so as to continue to be of useful service as an officer, which is the fundamental purpose of employment discipline.
21The positive evidence of the Appellant’s rehabilitative efforts was thoroughly considered by the Hearing Officer in his reasons. This evidence focuses on the period from February 1, 2022. The Hearing Officer states he was “very aware” of the range of activities the Appellant undertook to educate herself through an education program on Holocaust awareness, received positive reviews from program facilitators and continued to volunteer at the organization. The Hearing Officer also gives the Appellant credit for her efforts to mend ways with the minor hockey association and to apologize to the police service. He recognized her high level of employment performance, a number of positive support letters and gave credit for her guilty plea. Overall, he finds that her efforts after February 1, 2022 were an honest attempt to acknowledge the seriousness of her actions, to take responsibility, and to make amends. The Hearing Officer finds these rehabilitative efforts are “sufficiently mitigating” in the penalty analysis to remove the prosecution’s recommendation for sentence (reduction to the rank of fourth-class constable) as an option.
22The Appellant takes issue with the Hearing Officer’s characterization of her actions between September 2021 and January 2022 as aggravating factors when it came to considering the Appellant’s recognition of the seriousness of her misconduct. He criticizes her social media posts that continued for an 18-week period after the misconduct at the hockey arena, finding this represented an extended period of her failure to appreciate the significance of her actions. He disagrees with the characterization of the Appellant’s apology to the arresting officer on the day of her arrest and a written apology to the hockey association on October 1, 2021 as evidence of recognition of her wrongdoing. The Hearing Officer finds this detracted substantially from her remedial attempts after February 1, 2022 and that her lack of recognition of the seriousness of the matter over more than four months was aggravating to penalty.
23The Commission finds the Hearing Officer was entitled to consider the strengths and weaknesses of the Appellant’s recognition of the seriousness of her misconduct as he did. He considered her efforts to reform in the context of whether she understood the seriousness of her misconduct. While her post-February 2022 efforts evinced a willingness and ability to rehabilitate and reform, and were regarded as a weighty mitigating factor, that did not operate to trump all other evidence of her conduct or the significance of other penalty considerations: Kramp v. Durham Regional Police Service, 2020 ONCPC 9 at paras. 35-46; Brewer v. Toronto Police Service, 2022 ONCPC 9 at para. 29. The Hearing Officer did not entirely disregard the Appellant’s later efforts at reform by citing her actions leading up to February 2022 as aggravating. He simply did not agree the later rehabilitative efforts eclipsed or overtook her past actions. This was a finding that was open to him to make based on the record.
24The Hearing Officer did consider the evidence of rehabilitation and, in the end, concluded this was sufficiently mitigating to dissuade him from imposing a reduction to the rank of fourth-class constable, as the prosecution submitted. It was reasonable for him to do so. It is not the Commission’s role to reassign weight to this factor and elevate it in the penalty analysis above other factors the Hearing Officer found aggravating.
b. Expressions of remorse
25Nor does the Commission agree the Hearing Officer’s reasons demonstrate an error in his treatment of the Appellant’s expressions of remorse. First, the Appellant submits the Hearing Officer erred in principle by criticizing the timing of her guilty plea before the tribunal. His words are “I also give her credit for her guilty plea, by which she accepted responsibility for her actions, however belatedly.”
26In Allen v. Ottawa Police Service, 2006 ONCPC 6, the Commission wrote “…a guilty plea should always be recognized as a mitigating factor and that giving no weight to a guilty plea is an error in principle.” The Commission does not view the impugned language as rising to the error of giving no weight to the plea. It is a passing comment that must be read in the context of the Hearing Officer’s multiple findings the Appellant is entitled to credit for pleading guilty and for the expressions of remorse she offered leading up to the disposition.
27In any event, the Commission has held a Hearing Officer is entitled to consider contextual factors such as the circumstances surrounding the guilty plea; a guilty plea or apology does not result in automatic unqualified mitigation. Welfare v. Peel Regional Police Service, 2018 ONCPC 15 at paras. 42-44, citing Kobayashi, supra at para. 60. The Commission would not interfere with ascribing the weight to be assigned to this mitigating factor.
28The Appellant’s further submission that the Hearing Officer failed to consider the acknowledgement of responsibility that came with her participation in diversion, is simply not borne out by the record. In his summary of the Appellant’s penalty submissions the Hearing Officer writes “[s]he entered the Direct Accountability Program through the courts in Sudbury to deal with the criminal charges, making a $750 donation to a Sudbury charity and counsel underscored that a condition of the program is to accept responsibility, which she did.” The Hearing Officer’s reasons are to be read as a whole and it is clear he was aware of and alerted to the acknowledgment of responsibility that is an ingredient of the Direct Accountability Program, along with the other factors he cites in considering her expressions of remorse and responsibility for the misconduct. While the Hearing Officer was aware of this information, it was open to him to choose how much weight to give when assessing the relevant mitigating and aggravating factors and determining penalty. He also did not have to address every piece of evidence in detail.t. The Commission’s role is not to look into every piece of evidence and second guess how it is weighed in the Hearing Officer’s assessment.
c. Global penalty for social media posts (count two)
29In written submissions, the Appellant argues the Hearing Officer fell into the error identified in Bennett v. Ottawa Police Service, 2012 ONCPC 16 by considering each separate social media post that formed the subject matter of count two as a separate misconduct. There was no such error here. The Hearing Officer’s observations about the multiple incidents of misconduct took place in his consideration of the seriousness of the offence. He was entitled to consider the multiple social media posts, as distinguished from a single act, in assessing the seriousness of the offence. The Hearing Officer was entitled to give a global penalty where there are multiple instances of misconduct in a single notice.
d. Consistency of disposition
30Finally, the Commission sees no error in principle concerning the consistency of disposition in this appeal. There is no such thing as perfect consistency in disposition and each case turns on its unique factors. As the Hearing Officer correctly concluded in his reasons, though he carefully reviewed the authorities and submissions of the parties “[m]any of those cases did not mirror [the Appellant’s] behaviour specifically, and there is no case that is completely on point.” The Hearing Officer correctly instructed himself to review both the similarities and differences among the numerous cases provided at the hearing.
31Before the Commission, the Appellant renews her reliance on specific prior decisions of the Commission or Hearing Officers that, she submits, support the principle that forfeiture was a penalty consistent with past cases: Jackson v. York Regional Police Service, 2011 ONCPC 12; Constable Antonio Pacitto and the Toronto Police Service, 2004 CanLII 77025 (ON CPC); Steudle v. Thunder Bay Police Service), Unreported Disposition of Superintendent M. Elbers (ret’d), March 2, 2018. The Commission has reviewed these decisions and sees no basis in principle to depart from the Hearing Officer’s own conclusions they each bear distinguishing features from the present case.
32The Hearing Officer thoroughly and correctly assessed the relevant penalty considerations in a manner that was attentive to the distinct features of the case before him. To reapproach his ultimate conclusion through the lens of consistency of dispositions would amount to nothing more than and require nothing less than reweighing the penalty factors to achieve a different outcome. The Hearing Officer’s conclusion these were misconducts that attracted demotion to third-class constable for one year, followed by one year as second-class is reasonable and fully supported by the evidence at the hearing.
ORDER
33The appeal is allowed in part. Pursuant to s. 87(8) (a) of the Act, the Commission varies the penalty order to read from the appeal is allowed in part and the penalty order is varied from “conditional on satisfactory performance of duty by the officer and the concurrence of her unit commander” to “conditional on satisfactory performance of duty by the officer, as confirmed by the unit commander.” The Commission otherwise dismisses the appeal and confirms the penalty decision of the Hearing Officer.
Released: July 10, 2023
Emily Morton
________________________ Laura Hodgson
Colin Osterberg