TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Corey McArthur v. Guelph Police Service, 2023 ONCPC 18

Date: 2023-09-12

File: 22-ADJ-006

Between:

Police Constable Corey McArthur

Appellant

and

Guelph Police Service

Respondent

Decision

Panel:

E. Morton, Vice Chair

L. Hodgson, Vice Chair

K. Grieves, Member

Participants:

J. Markson, counsel for the Appellant

D. Migicovsky and J. Barrow, counsel for the Respondent

Held by Videoconference: June 20, 2023

Introduction

1The Appellant, Police Constable Corey McArthur, pleaded guilty to one count 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 (the Act). On October 26, 2022, the Hearing Officer, Deputy Chief (retired) Terrence Kelly ordered the Appellant to resign from the Guelph Police Service within seven days or be dismissed.

2The Appellant appeals the penalty of dismissal.

DISPOSITION

3For the reasons that follow, the Commission orders a new penalty hearing pursuant to s. 87(8)(c) of the Act.

FACTUAL BACKGROUND

4The discreditable conduct count arose from the Appellant’s guilty plea to assault contrary to s. 266 of the Criminal Code. The parties relied on an agreed statement of facts in proceedings before the Ontario Court of Justice and the Hearing Officer.

5The agreed facts can be summarized as follows. On September 19, 2016, Guelph Police Service (Service) officers apprehended a youth under the Mental Health Act for disruptive and potentially self-harmful behaviour at his group home. They transported him to the hospital where the Appellant was in the emergency department on an unrelated matter. The officers enlisted the Appellant to assist them as the youth continued to behave erratically and threaten self-harm. After he had been placed in hand restraints on a stretcher in a patient room, the youth raised his unsecured right leg and struck the Appellant in the chest or stomach area. The Appellant then struck him in the upper chest area and also came into contact with the youth’s moving head and face. The youth’s injuries included a 3.5-centimetre laceration that required stitches and bruising and swelling to the face.

6The agreed facts were that while the Appellant did not intend to strike the youth in the face, he admitted he used excessive force in the execution of the elbow strike and that this either caused injury to the youth’s face or aggravated a pre-existing injury.

7The Appellant did not report his elbow strike to either hospital staff or his superiors. The incident came to the attention of the Service after the hospital staff viewed the video and reported a potential excessive force incident. After outside investigation, the Appellant was charged with assault causing bodily harm. On September 27, 2018, following a guilty plea and sentencing proceeding in the Ontario Court of Justice, the Appellant received a conditional discharge with three years of probation and 240 community service hours.

8A penalty hearing under the Act began on September 1, 2020 with the Appellant’s guilty plea to the count of discreditable conduct. The Appellant led medical and character evidence to establish his conduct on September 19, 2016 arose primarily as a result of symptoms of diagnosed Post Traumatic Stress Disorder (PTSD). The Respondent’s position at the penalty hearing was that the Appellant was, quite apart from his PTSD symptoms, disposed to angry and aggressive behaviour, making him unsuitable for future service as an officer.

a) Medical Evidence

9The Respondent did not dispute the Appellant had been diagnosed with PTSD and experienced the onset of symptoms in 2013, following the accidental death of a close police colleague in a motor vehicle accident. Other work-related events contributed to the Appellant’s experience of PTSD, including his attendance to a casualty of a serious motor vehicle accident after his colleague’s death, and his retrieval of human remains and notification of bereaved family following a March 2016 train accident.

10The medical evidence at the hearing included the admission of numerous reports prepared by both the Appellant’s treating psychologist and a forensic psychiatrist who conducted multiple assessments. A month following the 2016 assault, the Appellant went on medical leave. He immediately began treatment with psychologist Dr. Douglas and was then diagnosed with PTSD. The Appellant continued to attend treatment with Dr. Douglas at the time of the hearing. Dr. Douglas produced multiple progress reports during the five-year treatment period narrating the Appellant’s treatment process and rehabilitation with respect to both his PTSD and anger issues. According to Dr. Douglas’ reports, throughout 2017 the Appellant exhibited “moderate to severe symptoms” and was unable to return to work. In Dr. Douglas’ November 2019 report, she notes the Appellant’s diagnosis as “post traumatic stress disorder, much improved, mild” and opined that the Appellant could return to work with modifications.

11An assessment team at the Centre for Addiction and Mental Health (CAMH) saw the Appellant in February 2018 and diagnosed him with “posttraumatic stress disorder, chronic without dissociative symptoms, mild, improving”. The CAMH report, dated February 28, 2018, indicated that while the Appellant had a history of traumatic exposure, the reported symptoms of PTSD are directly attributable to the workplace incident in which his colleague died in 2013.

12Dr. Rootenberg, the forensic psychiatrist, also assessed the Appellant a number of times between 2018 and 2022. In his first report, dated July 24, 2018, Dr. Rootenberg agreed with other assessments that the Appellant met the diagnostic criteria for PTSD. Dr. Rootenberg concluded that the accidental death of his friend and fellow officer in 2013 triggered the onset of symptoms including flashbacks, hypervigilance and avoidant behaviours; his coping mechanisms became overwhelmed, and he subsequently reacted in an angry, impulsive manner. Dr. Rootenberg noted, “In my clinical psychiatric opinion, the acuity of Cst. McArthur’s post traumatic stress symptoms played a significant role with respect to influencing his behaviour during the material time.” He ultimately concluded that the Appellant now represented a low risk to act in a violent or aggressive manner in the future.

13In his follow up reports, dated December 20, 2019, August 27, 2020, March 14, 2022, Dr. Rootenberg’s recommendations remained unchanged. He noted that the Appellant functioned well in all domains, demonstrated “diligent adherence to treatment”, increased insight and that he benefited from individual counselling. The acuity of his PTSD symptoms had “clearly improved”. Dr. Rootenberg again agreed with the Appellant’s treating psychologist that the Appellant could return to work.

b) Evidence of Prior Acts of Aggression

14Though the Respondent did not dispute the diagnosis of PTSD or the medical opinions following the 2013 accident, the Respondent’s position was that PTSD symptoms did not play a significant role in the 2016 assault. The Respondent asserted that the root cause of the misconduct was the Appellant’s “character flaw”, or longstanding problem with anger management and aggressive behaviour. The Respondent relied on incidents that pre-dated the 2013 onset of the Appellant’s PTSD to challenge the expert evidence the PTSD symptoms played a significant role in the 2016 assault.

i. 2008 Assault

15The Appellant had one prior finding of misconduct contrary to the Act. In November 2008 the Appellant arrested a man for public intoxication. In 2010 the Appellant was found guilty of assault following a trial. The trial judge found beyond a reasonable doubt the Appellant, upset he was being criticized by the victim in relation to another arrest, grabbed the victim, arrested him for public intoxication and kneed him in the thigh. The trial judge found as fact the Appellant did this “because his adrenaline was up from [arresting the other male] and he was angry at being criticized” and that the “knee strike was gratuitous.” The Appellant received an absolute discharge for this offence in 2010. In the related disciplinary proceeding the Appellant pleaded guilty to one count of discreditable conduct and was directed to forfeit ten days pay.

16When questioned about the 2008 assault, Dr. Rootenberg dismissed a connection based on the temporal gap between the two incidents. When asked whether he would describe the two incidents as a pattern, Dr. Rootenberg noted the significant gap between 2008 and 2016.

ii. Prior Judicial Decisions

17The Respondent sought to rely on two further trial decisions in which judges made comments about the applicant’s impulsiveness and lack of control to test Dr. Rootenberg’s opinion. The Hearing Officer’s admission of and reliance upon the judicial commentary in these decisions were matters of great contention at the hearing, and again on appeal.

2013 Family Law Decision (Denomme)

18The Respondent disclosed the reported family law decision of Kelly Jane Denomme v. Corey Wilson McArthur, 2013 ONSC 2895 (Denomme) just prior to the penalty hearing. Over objection from the Appellant, the Respondent cross-examined Dr. Rootenberg on the judicial findings about the Appellant’s conduct during the course of his first marriage. The decision contains negative judicial commentary about the Appellant’s conduct during the proceeding, including a concern he had counselled a witness to disregard her subpoena. The trial judge also found the Appellant admitted to losing control and striking a door and punching walls in response to a provocation from his former spouse in 2009.

2014 Criminal Law Decision (McMullen)

19The Respondent also relied on R. v. McMullen, 2014 ONCJ 14, a criminal matter in which the Appellant gave evidence as the officer who stopped and arrested an accused for dangerous driving, assault and flight from police on December 13, 2012. The trial judge acquitted the accused. He rejected the Appellant’s evidence, holding it was “a concern to the court overall”, along with other critical comments about the credibility of the Appellant’s trial evidence. When evaluating the Appellant’s evidence about what precipitated his stop and pursuit of the accused, which involved the Appellant drawing his firearm, the trial judge described him as “apparently an aggressive police officer” and his decision to draw his firearm was “an overreaction on the part of an experienced police officer who should have known better” and that he was, on that day “simply looking for some issues on the main street as part of his patrol.”

20At the disciplinary proceeding, the Hearing Officer admitted the McMullen decision¹ following a contested motion by the Respondent to reopen the evidentiary portion of the hearing. Dr. Rootenberg was recalled for further examination as to whether the McMullen evidence decison altered his opinion about the connection between the Appellant’s PTSD symptoms and the 2016 assault. Dr. Rootenberg also provided an updated progress report, dated March 14, 2022.

iii. Further Collateral Evidence of Appellant’s Anger

21The Respondent pointed to further collateral information to challenge Dr. Rootenberg’s opinion evidence about the nexus between the Appellant’s PTSD and the misconduct. This included a comment from the Appellant’s mother prior to 2013 that he slammed doors and broke things, information suggesting that he experienced anger at work and was counseled about it and that, between 2013 and 2015, took but then discontinued taking medication prescribed partly to address his anger management.

ISSUES ON APPEAL

22The issues on appeal are as follows:

1. Did the Hearing Officer err by granting the Respondent’s motion to reopen the evidentiary phase of the penalty hearing?
2. Did the Hearing Officer err by misapplying the findings in McMullen and Denomme as prior acts of discreditable conduct and aggravating factors in the penalty analysis?
3. Did the Hearing Officer err by finding the Appellant’s continued usefulness as an offer when testifying in future cases was compromised?
4. Did the Hearing Officer err in his assessment of dispositional factors on penalty?

STANDARD OF REVIEW

23As 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.

24The 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 et al and the Waterloo Regional Police Service, 2015 OCPC 12 at paragraph 33; Gould v. Toronto Police, 2018 ONSC 4074 (Div. Dt.) at paragraph six.

ANALYSIS

1. Did the Hearing Officer err by granting the Respondent’s motion to reopen the evidentiary phase of the penalty hearing?

2. Did the Hearing Officer err by misapplying the findings in McMullen and Denomme as prior acts of discreditable conduct and aggravating factors in the penalty analysis?

25As the first two issues raise related questions about the admissibility and relevance of prior judicial findings or commentary made about the Appellant’s past conduct, it is appropriate to deal with them together. In brief, the Commission finds that while the Hearing Officer’s reasons granting the Respondent’s motion to reopen the penalty hearing are insufficient and cannot meaningfully guide appellate review, there was ultimately no error in principle in granting the motion to allow for the consideration of the judicial decisions for a limited purpose. However, the Hearing Officer erred by relying on the prior judicial findings about the Appellant’s conduct, which were never the subject of disciplinary charges, as evidence of a pattern of misconduct while working for the Service. The Commission further finds this error was compounded by the Hearing Officer’s incorrect finding that the Crown would need to disclose these cases in future criminal proceedings.

a) Further Relevant Facts/Procedural History

26After the Appellant closed his case on October 25, 2020, the Respondent indicated it would call no evidence and the Hearing Officer scheduled dates for submissions on penalty to commence on February 17, 2021. According to the Respondent, it only became aware of the McMullen evidence on November 5, 2020. On February 8, 2021, the Respondent brought a motion to reopen the hearing and introduce the McMullen evidence, filing affidavit evidence to support its position it was unaware of the existence of the McMullen evidence prior to the close of evidence. It moved to reopen the evidentiary portion and make submissions about whether the trial judge’s findings in McMullen impacted Dr. Rootenberg’s evidence that the 2013 onset of PTSD was a significant cause of the 2016 assault. The Respondent indicated that it would agree to Dr. Rootenberg being called for re-examination on the impact of the McMullen evidence on his opinion.

27The Appellant’ was that the McMullen evidence was legally inadmissible and not properly the subject of examination of Dr. Rootenberg. The Appellant also pointed to the fact the Service itself had reviewed the arrest underlying the McMullen evidence and concluded the Appellant acted in accordance with policy and used appropriate force, clearing him without any disciplinary charges. The Appellant further submitted the Respondent, to succeed on the reopening motion, needed to meet a “non-rigid application” of the four criteria in the test set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. He argued that the Respondent could not, establish due diligence as the decision was easily available on, a publicly accessible legal database.

28The Hearing Officer’s reasons for granting the motion, as the Appellant fairly observes on appeal, do not set out a legal test or set of principles for assessing whether it was proper to reopen the evidentiary portion of the hearing, nor whether and for what purpose the McMullen evidence was admissible at the hearing. The Hearing Officer’s reasons for granting the motion recite the procedural history and submissions of the parties. The analysis, however, is limited to his observation that he had the discretion under s. 25 of the Statutory Powers Procedure Act to admit hearsay, that the “interests of justice” would be “better served” by allowing its introduction and that he would assign what weight, if any, should be given to the McMullen evidence following final submissions on penalty. His final conclusion in his brief analysis is that “the [Appellant’s] conduct must be analyzed as a whole, in context, having regard to all the evidence presented to this Tribunal through the disciplinary hearing of [the Appellant].”

b) Analysis

i. Diligence of the Respondent

29The Appellant submits again on appeal that a “non-rigid” application of the Palmer test should have governed the decision to reopen. The Palmer test has been used in Commission cases to admit fresh evidence after a proceeding under the Act had been appealed. The first criteria in Palmer requires an inquiry into whether the evidence, by due diligence, could have been obtained at trial. The Commission has applied a flexible approach to the factor of diligence even when admitting fresh evidence on appeal, depending on the circumstances of the case (see, for e.g., Purbrick v. Ontario Provincial Police, 2011 ON CPC 7 at paras. 18-20, Bernardon v. Windsor Police Service, 2017 CanLII 37593 (OCPC) at para. 21).

30The Appellant submits the Hearing Officer’s decision to admit the McMullen evidence is fatally flawed as the evidence could have been obtained by due diligence by the Respondent. The Appellant led evidence at the motion the McMullen decision itself was easily accessible through and it was unfair to reopen the hearing to deal with evidence that could have been easily obtained utilized at the penalty hearing by the Respondent.

31The Respondent’s position at the motion was that, though the McMullen decision was available to the public, the Service was not actually aware of it before November of 2020. The Respondent relied on the evidence of General Counsel for the Service, that she was unaware of the existence of the decision throughout the proceedings for the 2016 assault, despite the fact it had been the subject of internal communication as well as local publicity years prior.

32The Respondent further submitted, as it does again on appeal, that the factor of diligence should be given a flexible and contextual application in a motion seeking to reopen a hearing that is ongoing, rather than to introduce fresh evidence on appeal. Relying on civil law cases, the Respondent proposes a test that focuses on whether the moving party seeks to reopen a case that to “fix” the evidentiary record upon realizing it had not put its best foot forward (see Kelly v. Palazzo, 2005 CanLII 46398 (ON SC at para. 38), Lo v. Ho v. Newto Construction Ltd. 2010 ONSC 662 at paras. 13, 27-29, 40). As the Respondent had led evidence it was unaware of the McMullen evidence, it could not be said it had made a strategic decision to hold back the evidence at an earlier stage.

33The Respondent also relies on a body of case law from administrative tribunals that support the proposition the Hearing Officer’s decision to reopen the hearing to consider the McMullen evidence was subject to a more permissive and nuanced approach than those applied in the criminal and civil trial process (Sampson and Durham Region Transit Commission, 2016 HRTO 1204 at para. 7, Law Society of Upper Canada v. Abrahams, 2015 ONLSTH 155 at paras. 14, 17-18, Pierre v. Law Society of Ontario, 2020 ONLSTH 148 at para. 18). The Respondent emphasizes this was a motion to reopen a hearing at a stage when no significant strategic or procedural decision had been taken following the Respondent’s initial indication it would call no evidence. In these circumstances, there was no prejudice to the Appellant and the evidence, if relevant and admissible, should be put before the trier of fact.

34It is not necessary, in light of the Commission’s decision a new penalty hearing should be ordered under s. 87(8)(c) of the Act, to rule on whether the Respondent should have been barred from reopening the hearing on the basis of its lack of diligence. While the Respondent led evidence it had not made a strategic decision to split its case by applying to reopen the hearing to introduce the McMullen evidence, it was also the case that this information was publicly available and could have been discovered through diligent hearing preparation The motion to reopen the hearing caused considerable delay in the penalty proceedings (i.e., close to one year between the Respondent’s discovery of the evidence and the Hearing Officer’s decision to reopen). The Hearing Officer did not analyze the issue of diligence in his reasons, other than to accept the Respondent’s explanation they were unaware of the decision. A thorough analysis of the factor of diligence, weighing the Respondent’s lack of hearing preparation against the overall delay, could have led to a different result. In the result, the Commission has ordered a new penalty hearing, the McMullen evidence is known, and the impact of the Respondent’s lack of diligence is now moot.

ii. Relevance and Admissibility of McMullen/Denomme Evidence

35The more difficult issue before the Hearing Officer on the motion to reopen, with which he does not grapple in his reasons, is whether the McMullen evidence was relevant to an issue in the case. Again, the Respondent’s position was the evidence was admissible to test the reliability of Dr. Rootenberg’s opinion the 2013 onset of PTSD played a significant role in the 2016 misconduct. The Appellant submitted the evidence was inadmissible because its use ran afoul of the rule against putting prior judicial comments about witness credibility to that witness at another proceeding and also because the judicial commentary was being erroneously submitted as substantive proof of prior misconduct.

36The Commission finds the McMullen evidence was admissible and relevant to the Hearing Officer’s assessment of the reliability of Dr. Rootenberg’s opinion. There was no error in receiving this evidence as further collateral information that could test Dr. Rootenberg’s opinion the treated PTSD symptoms, rather than a violent or aggressive disposition, were a significant cause of the 2016 assault. This is also the case with the judicial commentary in Denomme, which the Respondent referenced when Dr. Rootenberg gave his initial expert evidence. The Commission does not agree with the Appellant that these two decisions ought not to have been admitted and considered at the hearing at all. However, as set out below, the Commission finds the Hearing Officer erred in the manner in which he ultimately relied on McMullen and Denomme as aggravating factors on penalty.

iii. The Prior Judicial Commentary was Admissible for the Narrow Purpose Proposed by the Respondent

37The Commission finds that the use of the McMullen evidence, as proposed by the Respondent, does not run afoul of the rule set out by the Court of Appeal for Ontario in R. v. Ghorvei, 1999 CanLII 19941. R. v. Ghorvei stands for the principle an officer cannot be cross-examined on prior judicial commentary about his or her lack of credibility or reliability in a different proceeding. The key passage is at paragraph 31:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion. This case, in fact, provides a good example of the difficulties that would arise if such cross-examination were permitted because, in my view, once the finding is examined in the context of the whole record in Pappageorge, it becomes apparent that it is essentially unfounded and hence can provide no assistance in determining Constable Nielsen's credibility.

38Ghorvei thus stands for a limitation on use of judicial opinion as to the credibility or reliability of a witness in a different proceeding, not the blanket prohibition suggested by the Appellant. This was not the purpose for which the Respondent sought admission of McMullen.

39In forming his opinion, Dr. Rootenberg agreed he relied, in addition to the Appellant’s self-reports in clinical interviews, on collateral facts gained from other sources about the Appellant’s past conduct and behaviour. For example, he relied on information about the Appellant’s 2008 finding of guilt for assault, and other sources such as the Appellant’s mother and his employment file. The judicial comments in McMullen were to be relied on as a further source of information to test a theory the Appellant had exhibited impulsive or aggressive behaviour prior to the onset of PTSD. It was not the judicial opinion on the Appellant’s credibility on which the Respondent sought to rely, but the factual findings about his conduct toward Mr. McMullen.

40The Commission finds there is a distinction between relying on evidence of the finding of facts about the Appellant’s conduct in McMullen to test the opinion of Dr. Rootenberg from reliance on the judicial comments on the Appellant’s credibility, or as stand-alone evidence of prior discreditable conduct. The Commission finds support for this reasoning in the criminal law context where it has been held, “it is well-established in the jurisprudence that a police officer’s prior conduct in violation of the Charter can be admissible at a subsequent hearing if the circumstances warrant.” R. v. Holloway, 2021 ONSC 6136 at para. 99. R. v. Holloway cites Justice Hill’s obiter comments in in R. v. Thompson, 2013 ONSC 1527 at para. 204:

Cross-examination of a witness about whether or not his or her testimony was rejected or disbelieved in another proceeding is irrelevant…Equally, the credibility conclusions of another court, or findings respecting a police witness’ compliance with Charter rights, are generally irrelevant to determinations to be made by a court in a subsequent and different trial dealing with similar issues. However, and while it is not strictly necessary to decide the point in this case, I am of the view that a trial court would not be foreclosed, in considering as a factor relating to the seriousness of a Charter breach, relevant history of a particular police officer, squad or force as unambiguously characterized by judicial officers in other cases.

41The Commission finds an analogous circumstance exists here. The McMullen evidence was not proffered by the Respondent because of the negative commentary about the Appellant’s credibility in that case. Nor did the Respondent seek to rely on the judicial findings as substantive evidence of separate occasions of misconduct. Rather, the purpose of the evidence was to test and assess the weight to be given to Dr. Rootenberg’s opinion about the nexus between PTSD and the misconduct at issue.

42The Commission holds that to the extent the McMullen findings about the Appellant’s on-duty conduct in 2010 was used to test that medical evidence, it was admissible and relevant to the issue of the root causes of the 2016 assault, as well as the Appellant’s potential for reform. It was always in the purview of the Hearing Officer to attach as much or little weight to the expert opinion evidence at the hearing, and evidence that was relevant to test that evidence was admissible. The same can be said about the relevance of the Denomme trial decision. It’s relevance at the penalty hearing was limited, again, to test the evidence regarding the link between the Appellant’s PTSD and the 2016 assault.

43Ultimately, when recalled after the reopening, Dr. Rootenberg did not agree that the facts found in McMullen altered his evidence about the role of the Appellant’s PTSD symptoms in the 2016 assault. The Hearing Officer was entitled to give little or no weight to that opinion. To the extent the judicial findings of fact about the Appellant’s conduct, rather than his credibility, in McMullen and Denomme were used to test that opinion, the evidence was relevant and admissible. It had the potential to impact the result of the hearing, which revolved around whether the Appellant’s PTSD symptoms, which had been treated for several years following the 2016 assault, were the root cause of the misconduct. The opinion evidence bore upon significant dispositional factors, not least whether the Appellant had rehabilitated or reformed, and was of future use to his employer.

iv. The Hearing Officer Incorrectly Considered Prior Decisions as Aggravating Factors in the Penalty Analysis

44The Commission agrees with the Appellant the Hearing Officer improperly relied on the findings in Denomme and McMullen as a pattern of substantive misconduct in his reasons for penalty. The majority of the Hearing Officer’s reasons comprise of a recitation of the medical evidence he heard and summaries of the submissions made by counsel. In the actual analysis of the appropriate penalty, the Hearing Officer begins by stating that his “predominant concern” is the fact the 2016 assault occurred after the 2010 finding of guilt for assault. The Hearing Officer then turns to the McMullen and Denomme decisions, quoting the judicial findings about the Appellant’s past aggressive conduct, as well as highlighting the trial judge’s findings with respect to the 2016 assault about the breach of trust inherent in his assault on the youth. The Hearing Officer held:

The Service Prosecutor points out that the evidence on the record from the McMullen decision, and Justice Allen’s decision in 2010 along with the employment records of the officer, show that there were complaints of excessive force that pre-date 2013. Noting that Dr. Rootenberg did not probe these things at all. Dr. Rootenberg agreed there is a reference to these matters but he never had the opportunity to follow up on them.

As the evidence has shown, this is an officer who will not hesitate to fabricate evidence to justify his behaviour, as noted in the criminal matters prior to the diagnosis of PTSD in 2013 and the 2016 incident.

[The Appellant’s] employment history and record of court findings demonstrate a dismissive attitude toward the rule of law. His failure to control his anger when dealing with the general public despite numerous forewarnings about his behaviour which subsequently led to a vicious assault of a 17 year old youth suffering from mental health issues while handcuffed to a gurney in a hospital setting. [Emphasis added]

45The Commission finds the Hearing officer erred in the use he put to the judicial commentary in McMullen and Denomme. Though the Hearing Officer stated that he was “predominantly concerned” about the 2008 incident as past conduct, which led to the 2010 finding of guilt in court and a finding of misconduct under the Act, he also referred to the prior judicial comments in Denomme and McMullen as, effectively, findings of fact of misconduct contrary to the Act. However, the Appellant was not ever charged with misconduct under the Act in relation to these two matters. In the incident that formed the basis of the McMullen decision, the Service chose in 2012 not to take disciplinary action against the Appellant after concluding he handled Mr. McMullen’s matter appropriately. These cases were distinct from the 2010 criminal matter that was fully litigated and resulted in a finding the Appellant had committed assault beyond a reasonable doubt.

46On appeal, the Respondent continues to take the position that the McMullen and Denomme findings were admitted for the “narrow purpose of demonstrating that Dr. Rootenberg’s conclusions as it relates to nexus were undermined by his failure to fully probe or explain the complaints of aggression that pre-dated the onset of PTSD.” The Respondent does not take the position these findings were admissible as substantive evidence of prior misconduct that should act as aggravating factors in the penalty analysis. Rather, the Respondent’s position is that the Hearing Officer’s reliance on these two cases, in distinction to his “predominant concern” with the 2008 assault, means the comments excerpted above were of little importance to the Hearing Officer’s overall analysis and did not materially affect the result. The Commission disagrees.

47The Hearing Officer’s actual analysis in his penalty decision is brief. The majority of his reasons recite the evidence presented and the positions of the parties. It is clear to the Commission that in his own analysis, the Hearing Officer did place weight on the entire constellation of incidents he had heard about concerning the Appellant’s “past” that discloses a “pattern” of misconduct. The weight given was not limited to only the 2008 and 2016 incidents that gave rise to findings of guilt in both criminal court and under the Act. In the Commission’s view, this was an improper use of the information that came before him from the McMullen and Denomme decisions, which even the Respondent did not submit should be considered as substantive evidence of prior misconduct. This was not a marginal issue, and we find that it impacted the Hearing Officer’s fundamental conclusion.

3. Did the Hearing Officer err by finding the Appellant’s continued usefulness as an officer when testifying in future cases was compromised?

48The Commission finds the Hearing Officer further erred by commenting that these two cases will be disclosed in future matters where the Appellant is a police witness, thus bringing the Service into further disrepute. The Hearing Officer stated “the [Appellant’s] formal discipline record along with the Judge’s findings and comments in four different matters” is now subject to disclosure and that the officer will face a “list of questions in court” that has the potential to significantly affect any future cases in which he may be involved.”

49The Hearing Officer’s observation that the four decisions are subject to disclosure in criminal matters is wrong. To comply with the Stinchcombe disclosure obligation, the Crown must provide the Appellant’s criminal record, of where there are none as he was twice discharged following findings of guilt. There is no obligation on the Crown to provide the judge’s reasons in those proceedings. To comply with the McNeil obligation, the Crown must disclose the 2010 and 2020 findings of discreditable conduct under the Act. There was no basis in law for the Hearing Officer to find all four decisions were subject to disclosure.

50The Respondent submits that this error, if it exists, is inconsequential as there are two misconducts under the Act that must be disclosed. It is possible, in light of the comments in Holloway and Thompson, supra, that the Appellant could be subject to cross-examination on the facts of the arrest in McMullen, in a case where similar allegations of misconduct arose in the context of the defence to a criminal proceeding in which the Appellant is a witness. However, it is difficult to see how, given the rule in Ghorvei and the non-criminal context of those proceedings, the judicial commentary in Denomme would ever be relevant if the Appellant were to testify in a criminal proceeding as an officer. The Commission finds the Hearing Officer’s erroneous characterization of the potential future use of the two prior decisions, as it related to the Appellant’s ongoing usefulness to the Service and damage to the reputation of the force, compounds his other error in this use of these decisions in the penalty analysis.

4. Did the Hearing Officer err in his assessment of dispositional factors on penalty?

51The factors that a Hearing Officer must consider in deciding penalty have been clearly set out by this Commission. In Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) the Commission identified three key elements: the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police service. Other relevant factors include the officer’s employment history, recognition by the officer of the seriousness of his or her misconduct, and any disability or other personal circumstance. Additionally, deterrence, consistency of penalty, and any concern arising from management’s approach may be considered. The factors considered with respect to penalty are flexible, evolve over time, can vary depending on the circumstances of the case and no one factor is determinative (see Krug v. Ottawa Police Service, 2003 CanLII 85816 (ON CPC) at para.70; Husseini and York Regional Police Service , 2018 ONSC 283 at para. 36 (Div. Ct.).

52When determining whether a penalty is appropriate this Commission does not second-guess the Hearing Officer, who heard the evidence and assessed the witnesses. Rather, we are to assess whether or not the Hearing Officer has properly, fairly and impartially considered all of the relevant factors and principles. As is noted in Kobayashi, supra, only when a penalty decision is unreasonable, fails to consider all relevant matters or demonstrates an error in principle will the Commission intervene.

53As set out below we find that the Hearing Officer failed to adequately consider relevant dispositional factors. These errors in conjunction with the errors noted above necessitate the penalty ordered being set aside and a new hearing ordered.

a) The Hearing Officer Failed to Adequately Assess of the Evidence of the Appellant’s Potential to Reform and Rehabilitate

i. Further Factual Context

54As noted above, the Appellant’s diagnosis of PTSD and his treatment and rehabilitation was a significant issue at both the hearing and on appeal. In addition to the evidence of the onset of PTSD and its potential role in the 2016 assault, the Hearing Officer received a significant amount of evidence from Dr. Rootenberg and Dr. Douglas about the Appellant’s rehabilitation in the years following his diagnosis, as well as prognoses from the two doctors.

55Much of the medical evidence is set out above. The Respondent did not dispute the onset of diagnosed PTSD in 2013. Nor was it contested the Appellant had applied himself to continuous and, in the opinion of his doctors, successful treatment for the symptoms of PTSD in the years following the September 2016 assault. The evidence of the extent to which the Appellant had applied himself to treatment and rehabilitation in the years following the 2016 assault was extensive.

56The evidence before the Hearing Officer also documented the fact the Appellant had attended weekly therapy sessions for much of the time following October 2016. Dr. Rootenberg wrote in his December 20, 2019 report that the Appellant is “very diligent about seeing [Dr. Douglas] regularly and has a very good therapeutic relationship with her. This is a good prognostic sign prospectively, together with diligent adherence to treatment, increased insight into the nature of his PTSD symptoms and improvement in overall functionality.” He also notes the Appellant continued to follow the recommendations of his family physician with respect to prescribed medication. As of his most recent assessment, Dr. Rootenberg noted the Appellant continued to meet regularly with his clinical psychologist and had voluntarily elected to participate in an additional counselling group “for front-line workers to address their mental health.”

57Dr. Rootenberg’s reports shared an optimistic prognosis. In his July 24, 2018 report where he diagnosed the Appellant with PTSD, he wrote the Appellant “represents a low risk to act in a violent or aggressive manner in the future” and “his prognosis is quite optimistic”. In his December 19, 2019 report, Dr. Rootenberg updated his assessment and opined the Appellant “is able to return to work as a front-line police officer and assume all of the duties and responsibilities associated with that position in a manner that will not compromise his fellow officers or members of the public.” In a report dated August 27, 2020, Dr. Rootenberg opined the Appellant can resume his policing duties.

58The Appellant submits that the Hearing Officer failed to properly consider the substantial positive evidence relating to this issue. In the Respondent’s view, analysis of the expert evidence was unnecessary because the Hearing Officer concluded that there was no nexus between the PTSD diagnosis and the misconduct. The Respondent further submits that even if there was a nexus it was open to the Hearing Officer to find that the seriousness of the misconduct alone justified dismissal. We agree with the Appellant that the Hearing Officer erred in failing to properly consider the evidence relating to the Appellant’s PTSD.

ii. Analysis

59The Commission agrees that the Hearing Officer failed to appropriately analyze whether if the Appellant’s diagnosis and treatment for PTSD was a mitigating factor. In the reasons for penalty, the Hearing Office fully summarizes Dr. Rootenberg’s evidence and counsels’ submissions with respect to the impact of the diagnosis and treatment on penalty. The Hearing Officer’s actual analysis of this important and complex issue is, however, woefully brief. It consists of two paragraphs. At page 69, in the analysis section of his decision, the Hearing Officer writes:

I acknowledge that Constable McArthur has had numerous sessions with therapists and has been diagnosed as having mild to moderate symptoms of PTSD, brought on as a result of the unfortunate death of officer Kovach in 2013.

I’m not satisfied given the history of Constable McArthur and his diagnosis of PTSD symptoms along with his ongoing treatments is not one that leaves him with no voluntary control, or awareness of, his actions. I cannot accept it would change his ability to think rationally or distort his sense of reality. His vicious assault on the youth at the Guelph General Hospital clearly was a choice he made similar to his previous incidents, and followed a pattern of behaviour over a number of years of angry aggressive behaviour towards members of the public.

60Interestingly, earlier in the decision (at p.49) the Hearing Officer, when reviewing defence counsel’s submissions cites the Commission’s decision in Moraru v. Ottawa Police Service, 2008 ONCPC 1. There, the Commission held:

However, during the penalty phase of a Disciplinary hearing, not unlike the sentencing phase of a criminal trial, it is incumbent upon the trier-of-fact to consider whether PTSD, a medically recognized illness, influenced the actions of the officer and, if so to what extent. Having concluded that Constable Moraru was suffering from PTSD, the real issue before the Hearing Officer was what weight the effect of the PTSD should be given as a mitigating factor.

61In Moraru, the Hearing Officer concluded that PTSD did not “control” the Appellant’s actions. In Moraru, the Commission found that the Hearing Officer failed to reconcile the impact of PTSD on the Appellant and failed to properly consider his ability to reform or rehabilitate. The Commission concluded:

The reputation of the Service requires that the Service be mindful of its treatment of individuals with mental illness. We agree that the dismissal of an individual who contracted a mental illness during the course of his employment must be undertaken with extreme care, and only in circumstances which clearly warrant such action.

62Similarly, here, the Hearing Officer in assessing the impact of the Appellant’s PTSD diagnosis mentions it in passing and focuses on the Appellant’s “voluntary control” or “awareness of his action”. There was expert evidence that PTSD played a significant role in influencing the Appellant’s behaviour at the material time and the Appellant was at a low risk of acting in an aggressive manner in the future. The Hearing Officer did not have to accept this evidence, but he was required to at least grapple with it. In not doing so, the Hearing Officer failed to consider all relevant factors.

63In written and oral submissions, the Respondent attempts to inject reasoning and findings that, while available on the evidence, are simply not articulated by the Hearing Officer. The Commission agrees with the Respondent that it must consider the decision as a whole, must not “treasure hunt” for errors and that a lay administrative body is not expected to engage in the same legal analysis as lawyers and judges: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 102; McPhee v. Brantford Police Service, 2012 ONCPC 12 at para. 90. However, as per Vavilov, while the Commission must read the Hearing Officer’s decision in light of the history and context of the proceeding (e.g. the evidentiary record, parties’ submissions, and past OCPC decisions, among others), its role is not to fashion its own reasons in order to address a fundamental gap or unreasonable chain of analysis: Vavilov, at paras. 94-96. Nonetheless, the Commission can also not conjure up the Hearing Officer’s rationale for penalty when no clear chain of reasoning is articulated and a complex body of crucial evidence is not assessed. The Hearing Officer notes that the deliberations in this case were demanding and challenging. In the course of his reasons, however, he fails to detail the challenges or, more importantly, how he chose to resolve them.

64The Respondent submits that the Hearing Officer found there was no nexus between the Appellant’s misconduct and his PTSD. This conclusion is perhaps available on the evidence. Nowhere in the reasons for penalty, however, is this articulated by the Hearing Officer. The Hearing Officer was clearly concerned with the fact that the Appellant had anger issues and one or more violent interactions that predated the 2013 onset of PTSD. At no point does the Hearing Officer conclude that the misconduct at issue was, as the prosecution alleged, simply in the “scope of his character” and not a result of PTSD. Given the substantial expert medical evidence before him, a robust and fair analysis of the evidence relating to PTSD was required and the ultimate conclusions or weight afforded to this evidence clearly stated. The Hearing Officer did not, as the Commission has found Hearing Officers to have done in other cases, engage in meaningful analysis of the evidence relating to the role that PTSD might have played in the conduct or the Appellant’s recovery (see Welfare v. Peel Regional Police Service, 2018 ONCPC 15 at para. 31, Orser v. Ontario Provincial Police, 2018 ONCPC 7, Brewer v. Toronto Police Service, 2022 ONCPC 9; Purbrick v. Ontario Provincial Police, supra at paras. 69; 78, aff’d 2013 ONSC 2276 (Div. Ct.)).

65In Kobayashi (supra at paragraph 38), the Commission noted that a decision maker need not accept evidence of an expert, even when uncontradicted. The Hearing Officer was entitled to accept “some, all or none” of the expert evidence. In the circumstances of this case however, when there was evidence of six years of ongoing treatment and five assessments by a clinical psychiatrist, corroborated by a CAMH assessment and multiple reports by the Appellant’s treating psychologist, the Hearing Officer needed to at least articulate what weight he gave to this evidence of rehabilitation in the context of future usefulness to the Service and why. In written and oral submissions, the Respondent strongly argued that the expert evidence was to be given diminished weight because the Appellant self-reported and the expert didn’t have all relevant information. This line of reasoning, while perhaps available on the evidence, is not articulated by the Hearing Officer and we do not think it can be fairly inferred from the decision.. The Hearing Officer does not indicate what weight, if any, he gives to the medical opinions relating to the Appellant’s PTSD and anger issues. As a result of this gap, we find that the Hearing Officer’s reasons lack justification and intelligibility.

66The Respondent argues, in the alternative, that, even if there was a nexus between the Appellant’s PTSD and the misconduct, that the medical evidence was outweighed by the seriousness of the offence. Again, nowhere in the reasons is this conclusion articulated by the Hearing Officer. The misconduct at issue here is undeniably serious. This Commission has held that the seriousness of an offence can alone justify dismissal (Krug, supra, Cameron, supra). It was open to the Hearing Officer to conclude this in the circumstances of this case. Neither the Appellant nor the Commission, however, should be required to infer that this was the Hearing Officer’s conclusion. The Hearing Officer does repeatedly note the egregiousness of the misconduct. He does not, however, provide a clear line of analysis from the evidence to his conclusion that dismissal is the appropriate penalty. In the circumstances of this case, he was required to do so. While the seriousness of the misconduct was a critical factor, based on the evidence before him, so was the Appellant’s diagnosis of and treatment for PTSD. It was incumbent on the Hearing Officer to directly assess both factors (see Orser, supra at para. 35).

67The Appellant’s diagnosis of PTSD and his rehabilitation process, which spanned numerous years, and his varied treatment, which included anger management reduction techniques, was clearly a significant component of the Appellant’s case. As noted, the Hearing Officer gave a detailed summary of the evidence at the outset of his reasons. In the analysis section, under the heading “Potential to Reform or Rehabilitate”, the Hearing Officer properly noted that “it is essential for the Tribunal to assess the prospect of rehabilitation of an officer whenever a suitable disposition is being devised”. In the preceding paragraphs, however, there is no mention of PTSD or the Appellant’s extensive treatment process. Rather, in this section, the Hearing Officer focuses on what he perceives to be the Appellant’s absence of remorse. The Respondent again asks us to infer that because the Hearing Officer found the Appellant lacked remorse, he concluded that he had no rehabilitative potential. This is another leap in reasoning that neither the Appellant nor the Commission should need to make, and represents a fundamental gap within the meaning of Vavilov.

68On the evidence before him, it was necessary for the Hearing Officer to at least consider the significant rehabilitation undertaken by the Appellant over a five-year period to address his workplace-acquired mental health diagnosis and the expert opinion that he was largely rehabilitated. In the circumstances of this case, rehabilitation and the Appellant’s opportunity to reform were significant relevant factors to the appropriate penalty. They warranted a far more fulsome analysis by the Hearing Officer. The absence of this analysis made the Hearing Officer’s decision unreasonable and warrants intervention by the Commission.

b) Other Alleged Errors

69Because we have found the Hearing Officer erred with respect to the above-noted grounds and a new hearing will be ordered, the other alleged errors in the Hearing Officer’s application of the dispositional factors can be dealt with briefly.

i. Consideration of Remorse

70The Appellant asserts that, in his penalty analysis, the Hearing Officer failed to properly consider the Appellant’s guilty plea to the criminal offence and to the professional misconduct charge as mitigating factors.

71The Commission does not find an error in principle in how the Hearing Officer dealt with the Appellant’s remorse as a dispositional factor. In submissions to the Hearing Officer and to this Commission, the Respondent noted Dr. Douglas’ December 2017 report observed that, as a result of the hospital video, “he had been told he might not win in court.” The Commission concludes that the Hearing Officer did not err by not specifically assessing the Appellant’s guilty plea as indicia of remorse. While pleading guilty is an indisputable admission of culpability (see Prubrick v. Ontario Provincial Police, supra at para. 81), this Commission has also noted that, in assessing remorse, a Hearing Officer can consider the circumstances of a guilty plea (Welfare, supra at paras. 42- 44, Kobayashi, supra at para. 60; Rancourt v. Greater Sudbury Police Service, 2023 CanLII 60530 (ON CPC) at paras. 26-28). Given the evidence available, we would not interfere on this basis.

ii. Consideration of Organizational Failure

72The Appellant submits that the Hearing Officer failed to consider that the Service systemically failed to support and monitor him after the work-related death of his colleague. There was no evidence before the Hearing Officer or this Commission that the respondent Service had knowledge of the Appellant’s mental health challenges. The Hearing Officer omitting to specifically consider this factor in these circumstances does not amount to an error.

iii. Consideration of the Appellant’s Failure to Document the 2016 Assault

73In the Hearing Officer’s reasons for disposition, he notes that the incident came to light only after hospital staff viewed the security video and that the Appellant made no notes or documentation with respect to his use of force. The Appellant argues that his failure to make notes was not an agreed fact and the Hearing Officer erred in considering misconduct that was not formally alleged. We do not agree. It was open to the Hearing Officer to consider evidence before him about the circumstances of the assault, including the Appellant’s behaviour immediately following the incident. Though not the subject of an additional charge, the Hearing Officer was entitled to consider the Appellant’s failure to document the incident as it related to his initial insight into his actions. Again, we would not interfere on this basis.

iv. Consideration of Character Evidence

74Lastly, the Commission disagrees with the Appellant’s submission that the Hearing Officer failed to consider the Appellant’s character evidence in his analysis of the appropriate penalty. At the Hearing, the Appellant called two former supervisors, now Inspectors with the Service. The Hearing Officer summarized the witness’ evidence. Inspector Green had testified with respect to the Appellant’s work ethic and belief that he could return to work and bring value to the Service. Inspector Green had not supervised the Appellant since 2009. He was aware of the incident’s negative media exposure and agreed that the Appellant’s use of force was not reasonable. Inspector Welsh, who supervised the Appellant from 2013 to 2016 opined that the Appellant suffered from PTSD as a result of his colleague’s death. She noted that he exceeded standards of performance, and she had no concerns about him upholding core values of the Service. In cross-examination, Inspector Welsh agreed that the 2016 assault was the result of various factors including “bad judgement” and that the community would be concerned about the Appellant’s return to the service.

75It would have been preferable for the Hearing Officer to have fully assessed this evidence as it related to the Appellant’s employment and future contribution to the Service. The Hearing Officer summarized the evidence of Inspectors Green and Welsh but failed to address it in his analysis of penalty, giving no reasons about why he apparently gave no weight to their evidence as a mitigating factor. Nor did the Hearing Officer address, beyond mentioning, the existence of the 17 character reference letters the Appellant filed. Though character evidence is not determinative, the Hearing Officer should have acknowledged it and his determination of its mitigating impact, if any, on penalty (Purbrick (OCPC), supra at para. 53). Given the equivocal nature of the evidence before him, however, we do not find the Hearing Officer’s omission with respect to character evidence would amount to reversible error here. It will be for a different Hearing Officer to assess character evidence at the new penalty hearing.

Remedy: New Hearing Ordered

76The Commission is mindful of the deference owed to the Hearing Officer, however, when relevant factors are not appropriately considered, leaving fundamental gaps in the decision maker’s analysis, intervention is warranted. This is not done lightly. As set out above we find the Hearing Officer erred in his use of prior judicial commentary and in his assessment of multiple dispositional factors, resulting in fundamental gaps and an unreasonable chain of analysis. As a result, the decision cannot stand.

77The Commission is mindful of the passage of time since this assault, the community reaction and the protracted proceedings below. In the specific context of this case, however, it would not be appropriate for the Commission to substitute a penalty. The appropriate penalty should be determined following a new hearing before a different Hearing Officer. This will allow a penalty decision to be made based on up-to-date medical information, along with any other relevant evidence.

ORDER

78Pursuant to s. 87(8)(c) of the Act, the Commission allows the penalty appeal and orders that a new penalty hearing take place before a different Hearing Officer.

Footnotes

1. 1The Respondent sought to admit a package of information relating to the McMullen decision including court documents and internal correspondence, along with the decision itself. Though this decision refers to the McMullen evidence, the judicial findings in the 2014 decision that were the focal point of the parties’ submissions on this issue.