TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Chohan v. Peel Regional Police Service, 2024 ONCPC 31

Date: 2024-10-02

File: 24-ADJ-001

Between:

Constable Gurpreet Chohan Appellant

and

Peel Regional Police Service Respondent

Decision

Panel: E. Morton, Vice Chair L. Hodgson, Vice Chair N. Gajraj, Member

Participants: M. Biddulph, counsel for the Appellant I. Johnstone, counsel for the Respondent

Held by Videoconference: July 10, 2024

Introduction

1The Appellant, Constable Gurpreet Chohan, pleaded guilty on October 4, 2023 to two counts of discreditable conduct contrary to section 2(1)(a)(ix) 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 January 26, 2024, the Hearing Officer, Retired Deputy Chief Robin McElary-Downer, issued a penalty decision ordering the Appellant to resign within seven days or face termination from employment with the Peel Regional Police Service (the Service).

2The Appellant appeals the penalty imposed and seeks an order varying the penalty to a demotion.

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 before the Hearing Officer. The discreditable conduct related to findings of guilt in the Ontario Court of Justice for Criminal Code offences arising from acts of intimate partner violence against two complainants. The Appellant pleaded guilty in court on July 13, 2022, to mischief under $5000 and assault and received a conditional discharge with two years of probation, an order to attend counselling and an order to complete community service. A criminal conviction was not registered.

5The facts relating to the plea to mischief took place during the Appellant’s relationship with complainant A.B. She worked for the Service in a civilian capacity with the Appellant, who was sworn in as a uniformed officer during their relationship and served as an auxiliary officer and recruit constable before this. The two were in an intimate relationship between December 2017 and October 2019. In November or December of 2018, the couple argued about A.B.’s contact with a former partner and the Appellant struck her in the face after she had struck him in an effort to leave their violent confrontation. The mischief count related to the Appellant then punching and damaging a picture on the complainant’s wall. A.B. reported the incident to the police on December 29, 2021, and the Appellant was arrested on January 7, 2022.

6The guilty plea to assault related to the Appellant’s relationship with C.D., who was a uniformed officer with a different police service. Their intimate relationship lasted from June to December of 2021. In August of 2021, the Appellant and C.D. argued while in a car and the Appellant pushed C.D. into the interior front passenger door and window of the car. Later the same evening the Appellant assaulted C.D. in a similar manner. In November of 2021, the two were in a hotel and the Appellant assaulted C.D. by grabbing her and pushing her down on a couch by her shoulders. C.D. did not sustain physical injuries. She reported the incident to the police on December 28, 2021, and the police arrested the Appellant later that day.

7Immediately following that arrest, the Appellant voluntarily began two forms of counselling. He attended five sessions at Homewood between March and June of 2022, to address issues of domestic violence and anger. He completed anger management training with a different service provider as well. The Appellant attended seven sessions of the court ordered Partner Assault Response program in late 2022.

8At the discipline hearing, the Hearing Officer heard evidence from the two complainants about the impact of the Appellant’s offences. Both complainants spoke of the long-lasting psychological and emotional harm as well as the impact the offences and proceedings had on their security at their respective workplaces and their ability to engage in other intimate partner relationships.

9The Respondent sought a penalty of dismissal. Among other factors, the Respondent cited the repeated nature of the intimate partner violence, as well as the media attention to the court proceedings, which negatively impacted the reputation of the Service. The Appellant submitted a demotion was an appropriate sanction, leaving it to the Hearing Officer to determine whether it be a reduction in level of one or two ranks and for one or two years. The Appellant submitted three positive reference letters from supervisors at the Service and pointed to the fact he had embarked on counselling following the laying of criminal charges in 2021. The Appellant made apologies to the victims at the guilty plea in court and at the conclusion of the penalty proceeding.

10The Hearing Officer gave lengthy and detailed reasons outlining why she considered dismissal to be the appropriate sanction. In her reasons, the Hearing Officer considered a number of dispositional factors, as well as the broader test for dismissal and prior decisions addressing similar acts of misconduct. She recognized that the Appellant must receive the least onerous disposition available in the circumstances. In her reasons, the Hearing Officer focused on the serious nature of intimate partner violence and emphasized that the misconduct in this case involved repeated acts of violence and two different complainants. While she acknowledged the evidence of the Appellant’s counselling and positive work reference letters, as well as the mitigating effect of his guilty plea in court, she also found weaknesses in his overall recognition of the seriousness of his conduct and ability to rehabilitate.

ISSUES ON APPEAL

11The Appellant alleges that the Hearing Officer erred in relation to the following issues:

i. treating the requirement for disclosure of police discipline records (“McNeil” reporting) as a factor favouring dismissal;

ii. “double-counting” the Service’s Intimate Partner Violence Unit and domestic violence policy as an aggravating factor;

iii. Making an erroneous factual finding that the Appellant did not apologize to the complainants prior to charges being laid, in the absence of evidence to support that finding;

iv. finding the Appellant could not be rehabilitated.

v. discounting the weight to be given to character letters submitted on behalf of the Appellant; and,

vi. failing to consider evidence relevant to the perceptions of a reasonable member of the community.

STANDARD OF REVIEW

12In 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.

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. Ct.) at paragraph 6.

ANALYSIS

Impact of Prospective “McNeil” Reporting on the Reputation of the Service

14When considering the dispositional factor of the nature and seriousness of the Appellant’s misconduct, the Hearing Officer considered a number of factors. Her focus was largely on her concern that “on the spectrum of misconduct, any act of violence by a police officer in their private life is deemed to be very serious.” In this section of her analysis, she found the repeated nature of the Appellant’s misconduct, against two different victims, and after having received specific training on the serious nature of domestic violence, were weighty aggravating factors.

15As one aspect of her lengthy discussion of the dispositional factor of the seriousness of the offence, the Hearing Officer held reporting requirements established by R. v. McNeil, 2009 1 SCC 3 (McNeil) added to the seriousness of the Appellant’s misconduct. The Court in McNeil found that police must disclose to the prosecuting Crown findings of serious police officer misconduct if the officer is involved in the investigation of the accused. The Crown must then determine if the misconduct should be disclosed to the accused.

16In this context, the Hearing Officer linked the basis of the disciplinary misconduct subject to McNeil reporting – findings of guilty in criminal court for acts of intimate partner violence – to the seriousness of the Appellant’s misconduct. She wrote:

Constable Chohan is a front-line officer who responds to a variety of calls for service, including domestic related disturbances. Since family and intimate partner violence rank three of the top four most frequent incidents reported to Peel Regional Police, it is inevitable that as a front-line officer Constable Chohan will be a witness and required to testify in court on such matters. The Crown is compelled to release his McNeil each and every time this occurs. This places Peel Regional Police, as well as the Crown, in a very precarious position. Constable Chohan’s McNeil has the potential to jeopardize cases. This raises the flag on the seriousness of the misconduct pole.

17The Appellant submits the Hearing Officer erred in principle by assessing the impact of McNeil reporting on the seriousness of the misconduct. First, the Appellant points out that misconduct that may need to be disclosed under the McNeil regime cannot, in and of itself be an automatic basis for dismissal. The Commission agrees with this general principle, which has been set out in the prior Commission decision of Costa v. Toronto Police Service, 2017 ONCPC 14 (Costa) at para. 72. However, the Commission is not satisfied that the Hearing Officer erroneously applied a blanket principle that McNeil reporting raises the seriousness of misconduct to a level that dismissal is warranted in all or most discipline cases. In his written submissions, the Appellant acknowledges that the Hearing Officer did not err by giving some weight to the impact of McNeil reporting. The fact a McNeil report impacts on an officer’s essential duty of participating in prosecutions was recognized by the Commission in Groot v. Peel (Regional Police Service), 2002 ONCPC 4 (Groot).

18The Commission agrees with the Appellant that the Hearing Officer’s comments about the practical impact of McNeil reporting failed to provide contextual analysis about the potential reach of the reporting and the evidentiary purposes for which the Appellant’s misconduct could be used. As the Appellant argues, disclosure of this misconduct in a McNeil report could be of limited evidentiary use at a criminal trial. These are not, for example, offences of dishonesty that could be used to impeach credibility. To this extent, the Appellant fairly observes the Hearing Officer overstated the extent to which domestic violence related criminal convictions, and related misconduct findings, would impact the Appellant’s ability to testify in every case. The Commission recognized in both Groot and Costa, supra, that a criminal conviction may not prevent an officer’s evidence from being accepted in certain cases.

19The Respondent points to Constable Charles Morden and the Peel Regional Police Service, 1997 CanLII 22039 (Morden), where the Commission considered the issue of the impact of an officer’s prior convictions for domestic violence on his duty to participate in prosecutions of similar offences. The Commission wrote, at paragraphs 17 and 18:

Co-extensive to duties (b) and (d) [of s. 42(1) of the Act] for example, is the additional duty, when called upon, to serve as a witness to the prosecution. His credibility under those circumstances would be subject to attack. Further, a police officer who has been convicted of numerous criminal offences, particularly offences against the person, loses the ability to prevent and encourage crimes effectively.

Constable Morden is compromised in his efforts to assist victims of crime, having created victims himself. The ability of such an officer to carry out his duties would be severely impaired.

20The Commission notes that the comments in Morden are not focused on the effect of McNeil reporting specifically. While the Commission does comment on the impact on the officer’s credibility, the focus in Morden is on the negative effect on the ability to assist victims of crime while discharging duties more generally than participating in prosecutions and testifying in court. In this case, by explicitly linking the nature of the Appellant’s misconduct to the narrower concept of McNeil reporting, which has a specific role in the prosecution process, the Commission agrees the Hearing Officer overstated the negative impact of his misconduct on the trial process itself.

21However, the Commission finds the Hearing Officer’s overreach in her findings about the impact of any future McNeil reporting does not provide a basis to interfere with the penalty. It was one of many factors she considered when assessing the dispositional factor of the seriousness of the Appellant’s misconduct. The Hearing Officer’s reasons on this dispositional factor focus for the most part on the fact the Appellant was found guilty of intimate partner violence against two complainants, and the inherent seriousness of this category of offending behaviour. Her focus was on the fact there were four incidents of physical abuse along with one property crime in the context of intimate partner relationships, occurring over time, and with two different complainants. She referred to her view that the Appellant’s misconduct “illustrates a disturbing pattern of aggression and points to a chronic disrespect toward women” finding these to be “weighty aggravating features” of the misconduct. She referred to the serious psychological harm referenced in the two victims’ impact statements.

22The Commission finds that, while the Hearing Officer could have more clearly stated in practical terms what negative impact McNeil reporting itself would have in the circumstances here, this was only one facet of her reasoning on only one of several dispositional factors she found which combined to support dismissal. Reading the reasons as a whole, any overreach in addressing the negative impact of McNeil reporting is not a basis to rebalance the dispositional factors of the nature and seriousness of the misconduct and is thus not a basis to interfere with the disposition.

Double Counting of the Impact of the Service’s Intimate Partner Violence Unit

23The Appellant submits the Hearing Officer erred in principle by referring to the Service’s Intimate Partner Violence Unit as an aggravating factor while discussing two separate dispositional factors. First, the Hearing Officer, when writing on the factor of the public interest, held that continued employment of the Appellant would send a message to informed members of the public that the Service applied a double standard. It would be promoting a message of zero tolerance for domestic violence but tolerating such behaviour from Service members by continuing their employment despite having been found guilty of such offences. Second, when analyzing the dispositional factor of the potential damage to the reputation of the Service, the Hearing Officer again reasoned that a reasonable member of the public would lose confidence in the Service for continuing to employ a member found guilty of misconduct rooted in domestic violence, particularly in light of the Intimate Partner Violence Unit and its zero tolerance policy.

24The Appellant argues it was an error in principle for the Hearing Officer to use the Intimate Partner Violence Unit “in two ways”, and that she “improperly double counted its impact in elevating the seriousness of the offence.” The Commission is unaware of any principle or precedent that prevents a Hearing Officer from considering similar or related concerns when analyzing the different factors relevant to arriving at a penalty. The concerns identified by the Hearing Officer are that the Service takes domestic violence very seriously and created an Intimate Partner Violence Unit as a result. The issue of continuing to employ a member found guilty of multiple instances of domestic violence is germane to an analysis of both the public interest and the damage to the reputation of the Service. The Hearing Officer was entitled to consider this issue under both dispositional factors and we are not satisfied that she erred in doing so.

25The Appellant further submits that the Hearing Officer’s consideration of the Intimate Partner Violence Unit and the Service’s “zero tolerance” policy when analyzing the public interest concern “discloses logical gaps.” He submits that the Appellant was subject to the “zero tolerance” policy through the criminal charges and findings of guilt, and that to go further and apply “zero tolerance” at the disciplinary stage holds him to a higher standard than other members of the public, who would not necessarily experience negative employment-related impacts as a result of committing offences of domestic violence.

26The Commission disagrees. The Hearing Officer did not ground her decision to dismiss the Appellant in the application of a “zero tolerance” policy toward domestic violence. She considered and applied multiple dispositional factors, including the Appellant’s ability to rehabilitate. Second, it is well-settled that police officers are held to a higher standard of conduct than members of the public both while on and off duty. This high standard is routinely applied when considering the disciplinary, or employment-related, consequences for misconduct: see for example Horton and Ontario Provincial Police, 2015 ONCPC 16 at para. 23. There is no logical gap in the Hearing Officer’s overall finding that the nature of the Appellant’s misconduct, which is fundamentally at odds with his own employer’s priority of protecting victims of domestic violence, impacted both the public interest and the reputation of the Service.

Consideration of Lack of Evidence of the Appellant’s Apologies to the Victims

27While considering the dispositional factor of the Appellant’s own recognition of his misconduct, the Hearing Officer gave limited weight to both the Appellant’s guilty pleas before the tribunal, finding it was motivated by the strength of the case given his pleas of guilt in court. She did find that the Appellant recognized the seriousness of his misconduct, giving weight to his early guilty pleas in court, which included waiving a limitation period relating to the earlier allegations against A.B. She also found the Appellant’s commitment to counselling in the period following the criminal charges should be given some weight as a mitigating factor and demonstrated a level of recognition of the seriousness of his misconduct.

28The Appellant submits the Hearing Officer’s analysis on this dispositional factor contained an error in principle because she made a finding in the absence of evidence that the Appellant did not apologize to either complainant before the 2021 criminal charges were laid, and then used that finding to discount the weight to be given to the apologies made in criminal court and at disposition proceedings.

29The Appellant apologized to the two complainants at the guilty plea proceedings in court. The Hearing Officer recognized he was not able to communicate with them while the criminal charges were outstanding. The Appellant also apologized to the complainants toward the conclusion of the penalty proceedings. The Hearing Officer acknowledged the Appellant’s guilty pleas in court and before her, and the apologies. However, she found it “troubling” that the Appellant did not apologize to either complainant before he was charged, and release conditions prevented him from contacting them. The Hearing Officer wrote:

I do not however find his apologies deserving of mitigation. He had ample opportunity and much time to set the record straight and apologize to AB before his contact with her was restricted due to his condition of release. He did not. He had two months to set the record straight and apologize to CD. He did not. In her case, he assaulted her again. It is for these reasons, I find his apology to the victims and others in the criminal proceeding, as well as this tribunal, disingenuous and self-serving.

30The Appellant submits the reduction of weight given to the Appellant’s apologies in court and before the disciplinary tribunal reflects an error in principle as the Hearing Officer inferred, in the absence of evidence, that he had not previously made timely apologies to the two victims for his conduct. The Appellant refers to a criminal law principle that “absence of evidence is not evidence of absence”: R. v. Piec, 2007 MBCA 138 at para. 4; R. v. Hefferman, 2023 PESC 42 at para. 37. He submits that the Hearing Officer erroneously drew an inference the Appellant had not apologized to the two victims prior to criminal charges being laid and therefore erred in principle by discounting his apology at the sentencing and penalty stage as self-serving and disingenuous.

31This Commission has repeatedly held that lack of evidence of an apology or expression of remorse can be a factor at the penalty stage: Fenton, Supt. Mark v. Toronto Police Service, 2017 ONCPC 15; Deviney and Toronto Police Service, 1999 CanLII 31612 (ON CPC); Constable RoelfVos and the Peel Regional Police Service, 1993 CanLII 14137 (ON CPC). In Fenton, supra at paragraph 144 the Commission noted that there was no compelling evidence that the appellant had in fact reflected on his actions or took the nature and scale of his misconduct seriously.

32In this case, it is undisputed there was no evidence or information before the Hearing Officer that the Appellant had apologized to the victims prior to the criminal charges being laid. There was no error in principle when the Hearing Officer placed the apologies in court and at the tribunal in context, by noting they came at a late stage, when the Appellant was in significant jeopardy.

33As with the other alleged errors raised by the Appellant in this appeal, this submission needs to be placed in context. The Hearing Officer considered the lack of evidence of prior apologies in the context of thorough reasons analyzing the Appellant’s own recognition of the seriousness of his conduct, one of many relevant dispositional factors the Hearing Officer considered. She did find the Appellant’s guilty pleas in court mitigating. Moreover, the Hearing Officer then gave weight to the Appellant’s apologies in court and before the tribunal when considering his ability to rehabilitate. She held that credit was due to him for recognizing his wrongdoing and though the apologies “came too late” she accepted he was “in some regard, remorseful.” She found the apologies themselves, along with the guilty pleas, “deserve some mitigation.” There is no basis to interfere with the Hearing Officer’s treatment of the Appellant’s recognition of the seriousness of his misconduct.

Inability to Rehabilitate

34The Hearing Officer’s reasons for ordering that the Appellant resign or be dismissed focus, to a large extent, on her finding that the acts of intimate partner violence were repeated and inflicted on two different victims. The fact the misconduct did not arise from a singular act and, in her view, evinced a pattern of behaviour, was an important facet of her analysis of whether the Appellant could be rehabilitated. When analyzing the prospect of rehabilitation, she fairly considered positive indications, such as the fact the Appellant took counselling following the criminal charges in 2021 and that there had been no further complaints about his conduct in intimate partner relationships. Notwithstanding these positive factors, the Hearing Officer concluded the Appellant’s conduct, occurring over time, against two different victims and after having taken considerable domestic violence training as a recruit and then an officer, disclosed a fundamental character flaw that could not easily be overcome. In addition to her concern the Appellant could well reoffend, the Hearing Officer considered the fact his usefulness to his employer was spent as the nature and seriousness of his misconduct rendered it impossible for him to continue in the capacity of a police officer.

35On appeal, the Appellant argues the Hearing Officer’s analysis of the Appellant’s inability to rehabilitate is “antithetical to the manner in which this Commission treats addiction-related offending.” He submits that, even if he suffers from an innate character flaw as identified by the Hearing Officer, this is no different than the incurable nature of an addiction. However, the Commission has recognized that a person who commits misconduct stemming from an addiction is capable of rehabilitation if that person attends and completes addiction treatment. As the Appellant attended treatment and did not reoffend after criminal charges were laid, goes the argument, then it was an unprincipled and prejudicial assumption that he was not capable of rehabilitation.

36The Respondent, in written and oral submissions, correctly observes that there is no basis for the proposition that the Commission assumes a person living with a treatable but permanent disability or addiction is considered successfully rehabilitated if they attend treatment. In many cases, dismissal is upheld by this Commission where the seriousness of the misconduct alone justifies dismissal, notwithstanding that its root cause was an addiction or disability that has been treated: see for example Kobayashi, supra at paras. 81-83; Cameron v. Durham Regional Police, 2021 ONCPC 11 at para. 41. The Respondent also points to Groot, supra, in which the officer took positive steps to rehabilitate his character while on suspension, but this was found insufficient in the absence of other significant mitigating factors to warrant a penalty other than dismissal.

37Moreover, the Hearing Officer’s reasons demonstrate that she did consider the counselling the Appellant took after his arrest. She found on the facts before her that the timing and extent of the counselling, as well as the lack of any evidence that he followed up with the recommendation he continue with available supports, was insufficient to dispel her concern about the Appellant’s rehabilitation. This was particularly the case given her findings about what she viewed as the Appellant’s “disturbing pattern of behaviour” over time. The Hearing Officer did not overlook evidence that supported the Appellant’s rehabilitation. She considered it and gave it some weight in her analysis, but ultimately held that the nature of the misconduct in this case precluded a finding the Appellant could be rehabilitated and was of future use to his employer. The Commission is not satisfied that the Appellant has established an error in principle that would justify the Commission reweighing the evidence related to rehabilitation and coming to its own conclusion.

Character Letters

38At the discipline proceedings, the Appellant submitted three-character letters from former work supervisors at the Service. All writers spoke highly of the Appellant. One referee, who was the Appellant’s direct supervisor for over two years, stated the Appellant is always kind, dependable and well-regarded by peers, and went on to describe him as an honest, responsible, and a motivated asset to the Service. A second character reference supervised the appellant for a number of years and described the Appellant in positive terms, noting his calm demeanour. This letter acknowledges the Appellant’s misconduct by describing it as a “setback.” Finally, a third letter from a direct supervisor of approximately a year praises the Appellant’s work performance and goes on to reference the Appellant’s family values as a caregiver to elderly parents and a man currently in a happy domestic relationship.

39The Hearing Officer analyzed and weighed the three letters in the section of her reasons that considered the Appellant’s ability to rehabilitate. She found that the descriptions of the Appellant’s positive job performance should afford the Appellant “some mitigation,” particularly as he had been on the job a relatively short period of time. However, she observed that other than the reference in one letter to the “current setback” of the misconduct proceedings, the letters give no indication the writers are aware of the details of the acts of discreditable conduct. She wrote the Appellant’s supervisors were silent in their letters about the Appellant’s history of intimate partner violence and for that reason would “only apply minimal weight to the reference letters.” She concluded they offered limited assistance while considering the dispositional factor of ability to rehabilitate.

40Relying on the Commission’s decision in Cudney v. St. Thomas Police Service, 2021 ONCPC 15 (Cudney), the Appellant submits the Hearing Officer’s treatment of the character letters is an error in principle. In Cudney the Commission expressed general criticism of a tendency on the part of Hearing Officers to minimize the importance of character letters that do not disclose a familiarity with, or discuss, negative aspects of an officer’s employment history, including past or current findings of misconduct. In Cudney, the Commission held that Hearing Officers should reconsider downplaying letters of support on this basis, and to focus on the letters as a source of first-hand knowledge of fuller aspects of the character of the officer who committed misconduct. The Appellant submits that in this case, the Hearing Officer erred by using the letters as she did in the context of Appellant’s ability to rehabilitate.

41The Appellant is effectively asking the Commission to reweigh one factor the Hearing Officer analyzed when considering the Appellant’s rehabilitation. The Hearing Officer did not entirely discount the information and perspectives imparted in the three letters. She described the content of the letters and framed their positive comments in the context of the Appellant having a relatively short employment history with the Service. She then made explicit findings, grounded in the letters themselves, that the three referees were either unaware of or minimally considered the acts of misconduct themselves.

42It is not open to the Commission to reweigh the evidence of the letters and reassign their weight, absent an error in principle. While Cudney provides an observation and criticism of the general practice of Hearing Officer’s to discount reference letters on this basis, it did not hold it as an error in principle to do so. Rather, the Commission held that the “purpose of a character reference is to highlight the positive attributes or accomplishments of an individual” in order to “put the misconduct in some perspective with positive attributes or accomplishments of the officer.” The Hearing Officer did consider the perspectives in the three letters, and held they entitled the Appellant to some mitigation, particularly as he had been employed for a relatively short period.

43The Commission finds this is a similar complaint to that raised in the recent case of Runge v. York Regional Police, 2024 ONCPC 26 (Runge), where the Commission considered the officer’s submission the Hearing Officer “wrote off” positive character references when he observed the referees were not aware of the specifics surrounding the misconduct in that case. In Runge, the Commission wrote (at paragraph 23):

The Hearing Officer by no means “wrote off” the character reference letters, as the Appellant submits. His reason 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 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.

44In this case, the Hearing Officer recognized three separate letters by direct supervisors, all of which described good job performance and demeanour on the part of the Appellant, needed to be considered. She did give some weight to the positive content in the letters and found it noteworthy such good references arose given the Appellant’s short service. However, she found that this weight had to be reduced in her analysis of the Appellant’s ability to reform because they did not discuss and could not easily be reconciled with multiple acts of intimate partner violence, which took place over a period of time. She gave reasons for why she gave the letters reduced weight, and the Commission sees no error in her treatment of the letters. As a result, it is not open to the Commission to rebalance the weight to be given to the character letters.

Perceptions of Reasonable Members of the Community

45As noted, when considering the public interest and reputational damage factors in her disposition decision, the Hearing Officer found a reasonable member of the community would not accept that a demotion or any sanction less than dismissal was reasonable given the circumstances of the Appellant’s misconduct. The Appellant submits this fails to account for the supervisors’ letters that spoke highly of the Appellant and his police work, and that it was an error to make a finding about the views of a reasonable member of the public without considering these positive references. As discussed in detail above, the Hearing Officer gave limited weight to these letters as they did not discuss or reconcile the Appellant’s positive work performance with his misconduct. The Commission has found that was not an error. Given this, it is difficult to see how any consideration of these letters would impact the Hearing Officer’s analysis of a reasonable community member’s perception of the Appellant’s misconduct.

46The Appellant points to the Purbrick v. Ontario Provincial Police, 2011 ONCPC 7 where the Commission found, among multiple other serious errors, that the Hearing Officer erred by making findings about the perception of a reasonable community member without addressing the impact of character letters authored by members of the community. The Appellant did not file any character references from members of the community. His three reference letters were from workplace supervisors and based on his job performance. The failure to consider these three letters is not an error in principle as alleged by the Appellant.

ORDER

47The appeal is dismissed. Pursuant to s. 87(8)(a) of the Act, the Commission confirms the penalty decision of the Hearing Officer.

Released: October 2, 2024

Emily Morton

­­­­­­_______________________ Laura Hodgson

Nicole Gajraj