Tribunals Ontario / Tribunaux décisionnels Ontario
Ontario Civilian Police Commission Commission civile de l’Ontario sur la police
File: 23-ADJ-003
Between:
Police Constable David Runge Appellant
And
York Regional Police Respondent
Decision
Panel: E. Morton, Vice Chair L. Hodgson, Vice Chair L. Charette, Member
Participants: Joanne E. Mulcahy, counsel for the Appellant Carley Valente, counsel for the Respondent
Held by Videoconference: December 12, 2023
Introduction
1On December 13, 2022, the Appellant pleaded guilty before the Hearing Officer, Inspector Marco Napoleoni, to one count of discreditable conduct contrary to section 2(1)(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 February 21, 2023, the Hearing Officer, issued his penalty decision with reasons ordering the Appellant to resign within seven days or face termination from employment with the York Regional Police (YRP).
2The Appellant appeals the penalty imposed and seeks an order varying the penalty to a demotion to fourth class constable with conditions.
Disposition
3For the reasons that follow, the appeal is dismissed.
Background
4The parties relied on an agreed statement of fact (ASF) at the guilty plea proceedings. The discreditable conduct pertained to the Appellant’s theft of $175 in cash from a member of the community.
5On November 10, 2021, a high school principal contacted the YRP after students found a mobile phone near their school with the $175 tucked inside the case. On November 11, 2021, the Appellant met with the principal and took possession of the property. The Appellant identified the owner and met with him. The Appellant returned the phone but kept the cash. He made a note in his police notebook that he had returned both the phone and the money.
6The victim contacted the school and the YRP to make inquiries about the missing money. Professional Standards investigators determined the Appellant had stolen the case after an investigation that included video surveillance. Investigators arrested the Appellant on November 18, 2021. On April 27, 2022, the Appellant pleaded guilty to breach of trust by a public officer contrary to section 122 of the Criminal Code, R.S.C. 1985, c.C-46. The court suspended the passing of sentence and placed the Appellant on probation for a period of twelve months.
7PC Runge has been a member of the YRP since 2004 and holds the rank of First Class Constable. He has a history of formal and informal discipline. In 2016, he was informally disciplined for an inappropriate suspect apprehension pursuit. In 2018, he pleaded guilty to four counts of insubordination and one count of neglect of duty relating to improperly querying an individual on CPIC on multiple occasions and a pattern of idling in conspicuous locations on the dates the individual was queried as well as falsifying notes. He was ordered to forfeit 120 hours.
8At the penalty hearing for the current misconduct, the Respondent sought the Appellant’s dismissal. In support of this position the Respondent cited the seriousness of the on-duty conduct, which involved a breach of the public trust, as well as the Appellant’s history of discipline. The Appellant argued a demotion to fourth class constable was appropriate, relying on the principle of progressive discipline, his acceptance of responsibility and expressions of remorse, positive character references and the fact that, at the time, he was dealing with physical and mental health issues.
9The Hearing Officer considered the arguments presented and concluded that dismissal was a fit penalty. He emphasized the seriousness of the misconduct throughout his reasons, concluded PC Runge could not be rehabilitated, and that his ability to perform policing duties had been lost. He was also of the view the reputation of the YRP would be damaged if his employment continued.
Issues on Appeal
10The Appellant raises as issues on the appeal whether the Hearing Officer erred in his:
i. treatment of the Appellant’s recognition of the seriousness of his misconduct;
ii. application of progressive discipline in light of the Appellant’s employment history;
iii. treatment of letters of support;
iv. consideration of the Appellant’s ability to reform or rehabilitate;
v. consideration of the damage to the reputation of the police force;
vi. consideration of the Appellant’s disability and relevant personal circumstances;
vii. application of the principle of consistency of the penalty; and,
viii. application of the test for dismissal.
Standard of Review
11In Karklins v. Toronto (City) Police Service, 2010 ONSC 747 at paragraph 10, the Divisional Court confirmed the role of the Commission on a penalty appeal, noting the following:
The role of the Commission on a penalty is well established. Our function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him or her. We can only vary a penalty decision where there is a clear error in principle or relevant material facts are not considered. That is not something done lightly.
12The Commission must pay deference to the Hearing Officer’s weighing of dispositional factors and findings of fact unless an examination of the records shows his conclusions cannot be reasonably supported by the evidence.
13Even if the Commission would have come to a different conclusion, it will not interfere with the penalty decision unless there has been an error in principle or relevant factors have been ignored. The Commission’s role 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.
Analysis
1. No error in the analysis of the Appellant’s recognition of the seriousness of the misconduct
14The Appellant pleaded guilty in criminal court and at the penalty proceedings. It was an agreed fact that he felt remorseful following the theft and told the PSB investigator he had planned on returning the money but was arrested before he could do so. The Hearing Officer considered the ASF, but also considered the observation of the sentencing judge that the Appellant, when responding to follow-up correspondence from the school principial days after the phone and cash were found, lied to the principal. The Appellant indicated that he had in fact returned both the phone and cash to the victim and that he would contact the victim and “caution him regarding harassment”. The Hearing Officer found this dishonesty undermined the weight he would give to the Appellant’s guilty plea and expression of remorse.
15The Appellant submits that by citing the exchange with the school principal the Hearing Officer relied on facts outside of the scope of the ASF. This, he submits, resulted in the Hearing Officer basing his decision on “erroneous facts contrary to the [ASF] without notice and without an opportunity to respond.”
16The Commission finds it was open to the Hearing Officer to refer to the sentencing judge’s comment in the transcript of the criminal proceedings. The Respondent filed the transcript as an exhibit. In Yakimishyn v. Peel Regional Police, 2008 ONCPC 5 the Commission affirmed the principle that “aside from observations based upon common general knowledge or any specialized understanding of police practices inherent in a hearing officer’s senior rank, he or she ought not to stray from the evidence presented in the form of such agreed statement of facts and documentary evidence.” The plea proceedings were properly before the Hearing Officer as documentary evidence and the Appellant, who had been present at his sentencing, had the opportunity to respond.
17Nor does the Commission agree the Hearing Officer erred by assigning decreased weight to the Appellant’s expression of remorse. The Appellant submits the Hearing Officer focused on the seriousness of the misconduct when he gave reduced weight to the Appellant’s guilty plea. The Commission does not agree this is what the Hearing Officer did. The Appellant took the position that he was remorseful at an early stage and planned to return the money. The exchange with the principal told a different story about the Appellant’s remorse following the theft and the Hearing Officer was entitled to consider it when giving weight to the Appellant’s version that he was immediately remorseful of a momentary lapse in judgment. The Commission has recently affirmed the principle that “a Hearing Officer is entitled to consider contextual factors” and a “guilty plea or apology does not result in automatic unqualified mitigation.” Rancourt v. Greater Sudbury Police Service, 2023 ONCPC 17 at para. 27 citing Welfare v. Peel Regional Police Service, 2018 OCPC 15 at paras. 42-44 and Kobayashi, supra at para. 60.
18The Commission also disagrees with the Appellant’s further submission the Hearing Officer erred by misstating the facts when he said the Appellant made “full restitution when his criminal matter was dealt with.” The ASF states the Appellant returned the $175 “to PSB investigators”, indicating it was the original money stolen. The Appellant pleaded guilty and was sentenced on April 27, 2022. The ASF indicates the Appellant provided a compelled statement to PSB investigators on May 18, 2022. The agreed fact he returned the money is referenced after that. It was open to the Hearing Officer to interpret the ASF as stating the $175 was not returned until after the criminal matter concluded.
2. No error as to employment history and application of principle of progressive discipline
19The Hearing Officer considered the Appellant’s prior discipline history in concluding dismissal was appropriate. In the 2018 proceeding the Hearing Officer cautioned the Appellant that “further behaviours as described in these offences will put his position as a police officer in jeopardy.” The Appellant argues that the current misconduct cannot be described as similar to the 2018 facts, and the Hearing Officer’s “warning” in that case should not have been given weight.
20The Commission disagrees. The current misconduct was fundamentally an offence of dishonesty and breach of trust. The 2018 misconducts involved misuse of the CPIC database to improperly query a member of the public with whom he was acquainted and making misleading entries in his notebook. In considering the seriousness of the prior misconduct, the Hearing Officer noted the 2018 disposition which found that the Appellant “used his position as a police officer to access information for other than lawful execution of his duties” and this was “contrary to his oath of secrecy and the duties of a police officer.” The Commission finds it was open to the Hearing Officer to consider the language in the 2018 decision that further behaviour as that at issue in the 2018 disposition would attract a greater penalty.
3. The Hearing Officer did not err in treatment of letters of support
21At the hearing the Appellant filed 13 letters of support from colleagues, including superiors and community members. He alleges the Hearing Officer erred in concluding that in order to be mitigating, the individuals who had submitted the letters needed to be aware of the details surrounding PC Runge’s current and previous misconduct.
22In Cudney v. St. Thomas Police Service, 2021 ONCPC 15 the Commission observed that hearing officers “often downplay” the role of reference letters in considering a penalty disposition. The Commission held that the “purpose of a character reference is to highlight the positive attributes of an individual” to “put the misconduct in some perspective with positive attributes or accomplishments of the officer.” When reading the Hearing Officer’s reasons as a whole, it is evident he did not “downplay” the content of the reference letters. When considering the Appellant’s ability to rehabilitate or reform as a factor in disposition, the Hearing Officer made extensive reference to the letters, describing the diverse range of views from different members of the community and their consistent expression that he is a trustworthy and hardworking member of the community. The Hearing Officer averted to the fact some of the writers must have been aware the current misconduct resulted in criminal proceedings, as they cited his inability to continue supervising youth hockey. He also notes community members acknowledged the Appellant taking steps to address his mental health issues. Only following this discussion of the positive aspects of the letters did the Hearing Officer state he considered that the references were not aware of the specific nature of the criminal conviction (breach of trust) or the prior misconduct.
23The Hearing Officer by no means “wrote off” the character reference letters, as the Appellant submits. His reasons reflect he gave them weight in his analysis of the Appellant’s ability to reform. The basis on which he gave them reduced weight, in particular with respect to the Appellant’s prior finding of misconduct, was significant. There was no error in principle and it is not open to the Commission to reweigh the impact of the character references on appeal.
4. No errors as to treatment of the ability to reform or rehabilitate or consideration of disability
24The Appellant filed evidence relating to his mental disability and other personal circumstances. He submitted a psychological assessment from psychologists retained by the YRP, dated June 15, 2022. This is a thorough report based on two interview assessments and questionnaires completed by the Appellant. The psychologists diagnosed the Appellant with post-traumatic stress disorder (PTSD) as well as bipolar mood disorder and sleep apnea.
25A psychologist working for the YRP provided a letter dated April 1, 2022 confirming the Appellant engaged in four therapy sessions between December 2021 and January 2022 to “address issues and concerns related to past and current organizational, occupational and personal experiences” as well as sleep difficulties. The letter states the Appellant was a devoted participant. An October 27, 2022, letter from a counsellor in private practice confirms the Appellant attends counselling with her beginning in December of 2021, and is making significant progress. This counsellor used the 2022 psychological assessment as a complementary framework to focus the Appellant’s treatment goals.
26The Hearing Officer summarizes the June 15, 2022, psychological assessment, including the diagnoses and their symptoms, when considering the dispositional factor of disability as well as rehabilitation and reform. The Hearing Officer held that in order for this factor to be considered mitigating “evidence must establish a clear connection between the disability and the misconduct in question.” The Hearing Officer wrote:
As I review this report and have tried to link its findings to the misconduct before this tribunal. Based upon the evidence and submissions before me, I am unable to see a sufficient connection between the misconduct and symptoms of PTSD, Bi Polar Mood Disorder and Sleep Apnea diagnosis. The facts of this case demonstrate a troubling patten of dishonesty and deception and the evidence before me does not support the conclusions that this conduct was a result of Constable Runge’s mental state or condition at the time of the misconduct.
27Though the Hearing Officer recognized the Appellant’s commitment for seeking therapy following the misconduct and criminal charge, he ultimately did not find a connection between the now treated mental health disabilities and the November 2021 theft.
28The Appellant submits it was a legal error to require a “clear connection” between the misconduct and the Appellant’s disabilities. He submits the Hearing Officer incorrectly analyzed this factor as though this were a misconduct hearing, in seeking a link or explanation for why the misconduct occurred, rather than correctly analyzing the diagnoses and efforts put into treatment as evidence of the Appellant’s potential for rehabilitation and reform.
29This Commission has repeatedly held that it is an error for a Hearing Officer to fail to consider and analyze evidence relating to treated mental disability in a penalty assessment: Moraru v. Ottawa Police Service, 2008 ONCPC 1; McArthur v. Guelph Police Service, 2023 ONCPC 18. There is no allegation here that the Hearing Officer failed to avert to this evidence. Rather, the Hearing Officer placed less weight on the Appellant’s diagnoses and treatment as he found no nexus between the mental disabilities and the misconduct. The Commission concludes that in the circumstances of this case, it was open to the Hearing Officer to do this.
30While the Hearing Officer accepted the Appellant had made progress, he saw little connection between this progress and the gravamen of both the current and past formal misconduct findings, which concerned serious acts of dishonesty in relation to members of the public. The Hearing Officer’s reasons, in their totality, disclose a concern with the nature of the misconduct, the repetition of acts of dishonesty and their connection to the damage to the reputation of the police service. It was open to the Hearing Officer to give less weight to the evidence of mental disability on the basis he saw little connection between the symptoms listed in the June 15, 2022 assessment and the misconduct itself. In Moraru, supra, the Commission held that “during the penalty phase of a disciplinary hearing, not unlike the sentencing phase of a criminal trial, it is incumbent on the trier of fact to consider whether PTSD, a medically recognized illness, influenced the actions of the officer, and to what extent.” Having reviewed the June 15, 2022 assessment, the Commission disagrees with the Appellant’s assertion that the Hearing Officer’s factual conclusion that there was little nexus between the symptoms noted by the psychologists and the misconduct itself was unreasonable.
5. No error in consideration of damage to the reputation of the police force
31When considering the damage the Appellant’s misconduct and its consequences caused to the YRP, the Hearing Officer referred to a number of factors. First, he referred to five media reports filed with the tribunal that publicized the Appellant’s misconduct within the Greater Toronto Area. Second, he made a general finding that, were a member of the public made aware of the Appellant’s conduct, this would have an adverse impact on the reputation of the service. In making this finding, he distinguished the support letters filed by community members who expressed a level of understanding of the Appellant’s misconduct and hoped he would not lose his position as a result. The Hearing Officer made a specific finding that the general public would not share the sentiment of these supportive individuals. Finally, the Hearing Officer considered reputational damage that would occur to the service as a result of disclosure of the Appellant’s criminal record should he be called as a witness in his capacity as a police officer.
32The Appellant argues reliance on the third point, the reputational damage that could be caused by the Appellant’s testimony in court, is misplaced. The Appellant argues on appeal that he could be employed in a position not requiring courtroom testimony and points to reported cases where officers working for YRP received a penalty short of dismissal where they were criminally convicted of offences of dishonesty.
33As a threshold issue, the Respondent argues that the Appellant is disentitled to make argument about the consideration of the Appellant’s prospective courtroom testimony on the reputation of the police service, as this was not raised in the Notice of Appeal. The Commission agrees that of six grounds enumerated in the February 23, 2023 Notice, errors related to the reputation of the police service is not specifically raised. However, the Appellant does raise the failure to apply the proper test for dismissal, which has as one of its core components an assessment of the reputational damage to the employer: Williams. In any event, the Commission has assessed this ground of appeal and finds it has no merit.
34There is no basis to interfere with the weight given by the Hearing Officer to the dispositional factor of negative impact on the reputation of the YRP. This is a significant factor in when determining the appropriate penalty. As noted, the Hearing Officer referred to a myriad of factors in assessing reputational damage, not only the impact on the Appellant’s future courtroom testimony. In his own letter of apology to the tribunal, the Appellant referred to the damage his misconduct caused to “the trust our community has in policing.” The prospect of the Appellant’s future testimony was one of many facets of the weight the Hearing gave to the damage to the police service. The Commission sees no error in the Hearing Officer considering the impact of the Appellant’s conviction and misconduct findings on courtroom testimony.
6. No error as to consistency of the penalty
35The Hearing Officer considered the consistency of penalty at length in his decision. He referred to comparator cases submitted by the Respondent and the Appellant.
36The Appellant submits the Hearing Officer erred by failing to distinguish prior cases where there were offences of dishonesty that resulted in greater monetary losses and took place over lengthier periods of time. Specifically, he points to Coleman v. York Regional Police (unreported, 2016), McDonald v. York Regional Police (unreported, 2015), Guenette and Ottawa-Carleton Regional Police Service, 1990 CanLII 27136 (ON CPCP), Walker and Peel Regional Police Service, 2000 CanLII 45061 (ON CPC) and Purbrick v. Ontario Provincial Police, 2011 ONCPC 7, and says the Hearing Officer failed to draw meaningful distinctions between those cases, which did not result in dismissal, and the present case.
37The Hearing Officer’s reasons disclose a careful consideration of the relevant factors among all of this line of cases, including whether there was a guilty plea, criminal conviction, personal circumstances, including mental disability, and any past misconduct. The Hearing Officer was entitled to distinguish this matter from those cases as this Appellant had a prior finding of misconduct while the subject officers in those cases did not. He also noted the fact that these cases did not result in a Criminal Code conviction, whereas in this case there was.
38It is also important that while these cases may bear some similarities, the fundamental question on review is whether the penalty of dismissal fell within the range of reasonable and acceptable dispositions for the Appellant’s misconduct. Clearly, in this case involving theft and a Criminal Code conviction for public breach of trust relating to a theft, it did. As Cunningham A.C.J.S.C. wrote in Buckle v. Ontario Provincial Police, 2006 CanLII 3963 (ON SCDC) at paragraph seven:
In our view, dismissal forthwith was clearly within the range of available penalties. The Commission found no basis to interfere with that decision. It is generally accepted that an employer is entitled to dismiss an employee for cause, in this case, fraudulent activity. The cases involving police demonstrate over the years that dismissal is, and can be an appropriate disposition in cases involving theft or fraud.
39As the Respondent points out, even in the cases the Hearing Officer distinguished when considering consistency of penalty, the decisions noted dismissal was within the range of penalty for the misconduct at issue. In particular, in both Purbrick and Guenette, supra, the Commission held that the penalty of immediate termination was within the range of penalties available to the Hearing Officer. In both of those cases, there was no prior misconduct and the misconduct had not resulted in a criminal record for the respondent officer.
7. The Hearing Officer applied the proper test of dismissal
40Finally, the Appellant argues the Hearing Officer “completely disregarded” the test for dismissal in his reasons. The Hearing Officer correctly instructed himself on the test for dismissal as set out in Williams v. Ontario Provincial Police, supra and applied them, giving thorough reasons. The Appellant quotes extensively from passages of the Commission’s decision in Favretto v. Ontario Provincial Police (2002), O.P.R. 1540, upheld 2004 CanLII 34173 (ON CA), which focuses on the officer’s potential for reform. The Hearing Officer in this case considered the evidence that was relevant to this factor, including the Appellant’s guilty pleas and expressions of remorse, restitution and seeking counselling in an effort to rehabilitate.
41An officer’s capacity to reform is only one facet of the “usefulness test” set out in Williams. The Hearing Officer was entitled to weigh this factor along with the nature and the seriousness of the conduct and the reputational damage to the YRP should the Appellant remain on the force. The Hearing Officer in this case gave weight to both of these factors. It was clearly of particular concern to him that the Appellant had committed misconduct that resulted in a serious criminal conviction and did so after having committed a prior disciplinary offence that directly implicated his honesty and integrity. There is no rule that the factor of rehabilitation and reform takes precedence over these factors. The Commission finds the Appellant’s argument with respect to the test for dismissal is essentially that: a criticism that the Hearing Officer did not elevate the evidence of the Appellant’s ability to reform over the seriousness of the misconduct and its negative impact on the reputation of the YRP.
8. Conclusion
42The Commission sees no merit in the seven arguments raised by the Appellant on this appeal, and finds the Hearing Officer’s decision to be reasonable. He identified all relevant factors in considering sentence and did not make an error in principle in his application of those factors. It is not open to the Commission to rebalance and reweigh the factors to achieve a different result. The appeal is dismissed.
Order
43The appeal is dismissed. Pursuant to s. 87(8)(a) of the Act, the Commission confirms the penalty decision of the Hearing Officer.
Released: March 6, 2024
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Emily Morton
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Laura Hodgson
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Louise Charette