Li v. Toronto Police Service, 2024 ONCPC 33

TRIBUNALS ONTARIO

Ontario Civilian Police Commission

Citation: Li v. Toronto Police Service, 2024 ONCPC 33

Date: 2024-12-12

File: 23-ADJ-014

Between:

Constable Kehui Li, Appellant

and

Toronto Police Service, Respondent

Decision

Panel: E. Morton, Vice Chair C. Fletcher-Dagenais, Associate Chair L. Hodgson, Vice Chair

Participants: P. Norton, counsel for the Appellant M. Capotosto, counsel for the Respondent

Held by Videoconference: September 17, 2024

Introduction

1Constable Kehu Li (the Appellant) pleaded guilty 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).¹ On June 26, 2023, Superintendent Shane Branton, (the Hearing Officer) imposed a penalty of reduction in rank from Third to Fourth Class Constable for a period of six months, along with completion of an anger management program.

2The Appellant appeals the penalty imposed and seeks an order reducing the penalty to three days of forfeiture or as the Commission deems appropriate in the circumstances.

Disposition

3For the reasons that follow, the appeal is allowed and the penalty is varied to seven days forfeiture along with an order the Appellant complete an anger management program.

BACKGROUND

4The Statement of Particulars filed with the Notice of Hearing alleged the following against the Appellant:

On February 6, 2022 you were on duty in full uniform working the night shift at 11 Division. You attended a radio call to attend an address and take photographs of a victim. Several other officers were already on scene at this call. You later had a disagreement with other officers from the call as to how the call was handled. When the officer you were in a disagreement with left, you stated to the remaining officer, "I was so mad that I was going to shoot him in the head."

5The Appellant admitted the comment about shooting his fellow officer in the head amounted to discreditable conduct contrary to s. 2(1)(a)(xi). The parties relied on an agreed statement of fact (ASF) at the discipline proceeding to provide further context. The fellow officer referred to in the Statement of Particulars is PC Vandenbrink. He and the Appellant were with other officers at a domestic violence call during a night shift on February 6, 2022. After leaving the call, the Appellant complained to his partner, PC Manco, that Vandenbrink had shown him a poor attitude. Manco contacted Vandenbrink and told him the Appellant was upset and they all arranged to meet in a parking lot.

6When they were in the parking lot, Vandenbrink and the Appellant exchanged further words with respect to the way each had conducted himself earlier. The conversation became heated and did not resolve before Vandenbrink left the parking lot. Immediately after, the Appellant, still very angry, made the utterance about shooting Vandenbrink to his partner Manco while they were still in the parking lot. He made the comment in a monotone voice, but it shocked Manco who asked if it was a joke and said she did not find the comment funny.

7The ASF reads that after reflecting, the Appellant decided he needed to work things out with Vandenbrink. They spoke on the phone about their prior conversation and the Appellant immediately apologized and said he was caught up in the moment. He told Vandenbrink he would like to sit down to talk things out. Vandenbrink returned to the parking lot again to speak to the Appellant but before they could talk, Vandenbrink left to respond to a high priority call. The two never spoke about the conflict that night.

8There is nothing in the ASF to indicate the Appellant or Manco ever told Vandenbrink about the Appellant's utterance. It was agreed at the hearing the Appellant pleaded guilty to the misconduct at an early opportunity. Nor does the ASF disclose any information that the TPS contemplated charging the Appellant criminally with respect to the utterance.

9At the contested penalty hearing the Respondent sought a demotion in rank for six months and an anger management program, while the Appellant sought a penalty of three days forfeiture of pay.

ISSUES ON APPEAL

10The Appellant alleges the Hearing Officer erred by:

i. Finding the Appellant's conduct met the elements of the Criminal Code offence of uttering a threat to cause death and then using this finding to assess the nature and seriousness of this misconduct;

ii. Speculating about the circumstances in which the Appellant made the utterance;

iii. Failing to apply the principle of parity and proportionality by imposing a penalty inconsistent with similar cases;

iv. Failing to apply the principles of restraint and progressive discipline;

v. Giving no weight to the financial consequence associated with the penalty of demotion; and,

vi. Failing to give weight to provocation and the Appellant's personal circumstances at the time of the offence.

STANDARD OF REVIEW

11The Commission has repeatedly confirmed its role on a penalty appeal, as set out by the Divisional Court in Karklins v. Toronto (City) Police Service, 2010 ONSC 747 at paragraph 10:

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. The Commission may only interfere with a penalty if 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

Issues i through iii: The Hearing Officer Erred in Principle in Assessing the Seriousness of the Misconduct

13The Appellant submits the Hearing Officer made a fundamental error by making a number of observations in his reasons that the Appellant's statement to Manco met the elements of the Criminal Code, R.S.C. 1985, c. C-46 offence of uttering a threat to cause death or bodily harm. The Appellant argues this error led the Hearing Officer to erroneously assign greater weight to the seriousness of the offence and thus arrive at a penalty that was disproportionate to the actual misconduct at issue. Further, the Appellant submits the Hearing Officer fell into a number of evidentiary and procedural errors in considering the seriousness of the misconduct, by making findings without submissions from the parties, shifting the burden of proof to the Appellant and making speculative factual findings about the circumstances in which the Appellant made the utterance.

14The Commission agrees the Hearing Officer erred in principle when assessing the nature and seriousness of the misconduct. The error is linked to his finding that the Appellant's utterance amounted to a criminal offence.

15When making submissions on the seriousness of the misconduct before the Hearing Officer, the Respondent stated "...the conduct itself was on the serious end of the spectrum because even though it did not result in a criminal charge, in some situations it could have" and later "[f]or a fully uniformed officer equipped with a firearm, to threaten to shoot another officer in the head is unconscionable." When comparing the Appellant's conduct to a prior discipline case where the subject officer had been found guilty of the criminal offence of uttering threats (Carson v. Pembroke Police Service, 2001 CanLII 56731 (ON CPC), the prosecutor submitted "[w]hile the details of this case are distinguishable, overall it's the same misconduct."

16At the penalty hearing, the Appellant stressed this case was "not about an officer who made a threat to anyone" or a case where "an officer was charged with uttering threats" and was a case where "an officer committed no unlawful criminal act". In his submissions about why the offence was at the lower end of the spectrum of seriousness the Appellant led by pointing out the "utterance was not a threat" as it was "made in the past tense", in private, and without Vandenbrink's presence.

17In his reasons, when considering the dispositional factor of the impact on the misconduct on public trust, the Hearing Officer held:

In this case Constable Li violated the public trust by his actions of uttering a death threat to a co-worker regarding another co-worker after a dispute. I disagree with Defence's submissions regarding the clarity surrounding the threat that PC Li made. In the [ASF] it states PC Li made the statement "I was so mad, I was going to shoot him in the head." I find it clear that this is a threat to PC Vanden Brink. The public has an expectation that officers will behave professionally at all times. PC Li's response of threatening to shoot a co-worker over a disagreement is completely unacceptable and unimaginable. With the increase in gun violence and the scrutiny of the police it is concerning that after all the training PC Li had very recently received, he chose to escalate a situation to threatening a person with a firearm.

Later in his reasons, when considering the seriousness of the misconduct, the Hearing Officer wrote:

Defence counsel made submissions that PC Li's actions were not a criminal offence. I disagree, the actions of PC Li cover all of the required elements of the criminal offence of uttering threats. PC Li was not charged criminally and no reason was provided to this Tribunal on why. PC Li's conduct is no doubt serious and should be treated as such.

18The Appellant's first argument on appeal is that, as an interpretive issue, the utterance does not meet the elements of uttering threats, as it was made in the past tense. He points to section 264.1(1) of the Criminal Code and argues that by its plain language, it refers only to a threat to cause future or present death or bodily harm to any person.² The Appellant submits there is binding case law that a "threat" requires a present or future intention. In R. v. Ross, 1986 CanLII 7316 the Court of Appeal for Ontario wrote:

....In our view "threat" in s. 331(1)(a) [predecessor section to s. 264.1(1)(a)] includes what may be thought of as a conditional threat. One of the definitions of "threat" in the Shorter Oxford English Dictionary [...] is:

A denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment, or damage to be inflicted in retribution of or conditionally upon some course; a menace.

...In Black's Law Dictionary, 5th ed., the definition of "threat" reads, in part:

The term "threat" means an avowed present determination or intent to injure presently or in the future. A statement may constitute a threat even though it is subject to a possible contingency in the maker's control.

19In R. v. Hassan, 2023 ONSC 5869, a case relied upon by the Respondent on appeal, Mew J., when considering the meaning of "threat" in the context of the offence of criminal harassment under s. 264 of the Criminal Code relied on these definitions (at paragraphs 74 to 75):

In R. v. George (2002), 2002 YKCA 2, 162 C.C.C. (3d) 337, 2002 YKCA, the Yukon Court of Appeal reviewed the jurisprudence on the meaning of "threat" as:

A declaration of intention to punish or hurt, a menace of bodily hurt or injury, such as may restrain a person's freedom of action; and an indication of something undesirable coming.

The court observed that there is no requirement that the threat specify death or serious bodily harm. Rather, it can include psychological harm. At para. 41, the court wrote:

I do not see any difference, in substance, between defining a threat as a restraint on a person's freedom of action and an indication of something undesirable to come, or defining it as a tool of intimidation, designed to instill a sense of fear. Instilling a sense of something undesirable to come is indeed engaging in an act designed to instill a sense of fear.

20The Appellant argues that because he made a comment about something he would have done in the past, it cannot be construed as the criminal offence of uttering threats, and the conduct should not have been assessed as such when considering the seriousness of the offence. The Commission agrees the Hearing Officer erred in principle by considering the Appellant's statement to his partner a criminal threat when there is a question that a statement made in the past tense can meet the definition of threat, based on the authorities cited above.

21In addition, looking to the leading first principles on how to interpret s. 264.1, there are further difficulties with characterizing this conduct as a death threat contrary to s 264.1(1) of the Criminal Code. The elements of this offence are settled. A leading case on the elements of uttering threats is R. v. McRae, 2013 SCC 68, 2013 CanLII 68, [2013] 3 S.C.R. 931. The actus reus will be made out if a reasonable person aware of the circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that they were intimidated by it or took it seriously.

22The "decision as to whether the written or spoken words in question constitutes a threat to cause bodily harm is an issue of law and not of fact." McRae, supra at para. 10. The Commission agrees that the issue of whether the utterance at issue could have risen to the level of seriousness of a criminal death threat is far from clear. The Hearing Officer erred by assigning this misconduct the seriousness that would have been warranted had it clearly been a death threat as set out in the Criminal Code.

23The Respondent argues that the Appellant's statement, even if made in the past tense, was a threat to cause death as the overall circumstances and context of the utterance meant the Appellant's words were meant to intimidate and instill a sense of fear. This submission addresses the mental element of the offence of uttering threats. The mental element is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove any intent that the words be conveyed to the subject, or that the accused intended to carry out the threat: McRae, supra at paras. 2, 9-23. In order to determine what, in a criminal context, is in the accused's mind, reasonable inferences will have to be drawn from the words and the circumstances, including how the words were perceived by those hearing them: Ibid, at para. 23. The Hearing Officer did not engage in an analysis of whether the Appellant's statement was intended to be taken seriously. Concluding, in professional misconduct proceedings, that the Appellant's conduct met all of the elements of the criminal offence of uttering threats erroneously heightened the seriousness of the threat.

24The Respondent submits that, even if the Commission finds the Hearing Officer erred by characterizing the misconduct as a criminal offence, the error has no impact. The Respondent argues even if the Commission "were to delete all the comments made by the Hearing Officer regarding the fact that PC Li made a threat, the remaining analysis, would still constitute serious misconduct, given that PC Li made that comment, while in a public place, in uniform, on shift, equipped with a firearm..." The Commission finds the Hearing Officer's analysis of the seriousness of the misconduct, and its negative impact on the public's trust in policing, cannot be divorced from his repeated emphasis that the utterance in question was a "death threat" that he found met the elements of a criminal offence. The Hearing Officer refers multiple times in his analysis to his finding that the Appellant uttered "a death threat" to PC Vandenbrink. He found it was "clear" that the statement "is a threat". As discussed below, he found similarity between this case and cases where officers had been found guilty in court of the criminal offence of uttering threats. Significantly, he found the utterance met the "required elements" of a criminal offence. The Commission finds it was an error in principle to link the seriousness of the Appellant's misconduct to a finding he had made a "death threat" to his colleague in the criminal sense.

25Further, the Commission agrees with the Appellant that the Hearing Officer's statement that the Appellant "was not charged criminally and no reason was provided to this Tribunal on why" compounds the error. The Appellant submits this amounts to a reversal of the burden of proof. While it is clear that the burden rests on the prosecution to prove misconduct itself on the clear and convincing evidence standard, this was not the task before the Hearing Officer as he balanced and assigned weight to the different dispositional factors. The Commission was not directed to any authority stipulating the Hearing Officer must, as in criminal sentencing, find the prosecutor has proved aggravating factors to a requisite standard of proof. That said, though not a reversal of burden, the Commission views this statement that "no explanation was provided to this Tribunal on why" further demonstrates the Hearing Officer's erroneous emphasis on what he viewed as criminal conduct by of the Appellant.

26The Commission also agrees with the submission a portion of the Hearing Officer's findings in relation to the seriousness of the misconduct contain speculation. The Hearing Officer wrote that he disagreed with a submission by the Appellant the comment was made in private and found instead the statement was "not in a private area not accessible to members of the public" and that "the comment was made in a parking lot available for anyone to hear."

27This factual finding by the Hearing Officer required an impermissible level of speculation. The ASF did not state the comment was made in a parking lot "available for anyone to hear." The ASF states the statement was made while Manco and the Appellant were seated in their vehicle, after Vanderbrink had left the "heated" conversation while the Appellant was in his vehicle. Though the ASF did not contain a specific fact about the time of day the statement was made, it was an agreed fact the officers were on a night shift.

28The Commission accepts a finding of discreditable conduct does not require members of the public are actually aware of an officer's misconduct. However, the Commission finds that the impermissible speculation here about whether the Appellant's statement could have been overheard by a member of the public was another way the Hearing Officer elevated the seriousness of the misconduct.

29The Appellant submits that by erring in characterizing the misconduct as meeting the elements of a criminal offence, the Hearing Officer ran afoul of the principles of parity and proportionality in discipline by giving the Appellant a penalty similar to those given in cases with more serious or aggravating factors. The Commission agrees the Hearing Officer's error in principle with respect to finding the Appellant's misconduct was tantamount to a criminal offence caused him to then impose a penalty that is disproportionate with similar cases.

30The Commission finds that to the extent the Hearing Officer found cases where officers had actually been found guilty of the criminal offence of uttering threats provided guidance on the range of penalty, this was misguided, as the Commission has found it was an error for the Hearing Officer to consider the Appellant's misconduct as a criminal death threat throughout his reasons. The parties and the Hearing Officer relied on a small collection of cases where officers had pleaded guilty to discreditable conduct pursuant to s. 2(1)(a)(ix), or its predecessor provision, for being guilty of a criminal offence: Carson, supra; Mason v. Hamilton-Wentworth Regional Police Service, 2000 CanLII 45056 (ON CPC); Quintieri v. Toronto Police Service, 2001 CanLII 56740 (ON CPC). The penalties ranged from a six month demotion in rank to dismissal. The Hearing Officer found these cases were of limited use as they were dated and did not reflect that "the expectation of police officers and their actions has certainly increased" since they were decided. Nevertheless, the Hearing Officer found the cases were of assistance in determining an appropriate range, i.e., that a six month demotion was effectively a floor for officers found guilty of the criminal offence of uttering threats.

31The officers in those cases were all found guilty and convicted in criminal court for uttering threats and that was the basis of the finding of misconduct under s. 2(1)(a)(ix), a different section of the Code of Conduct than the charge the Appellant faced. Here, the Appellant was not engaged in the criminal process at all, and he pleaded guilty to discreditable conduct contrary to s. 2(1)(a)(xi). The Appellant's plea reflects an admission his conduct fell below the standard expected of police officers and that it was likely to bring the reputation of his employer into disrepute. The Commission agrees these cases are of limited assistance in setting a range of penalty to the misconduct at issue here.

32In the result, the Commission finds the Hearing Officer fell into errors in principle when he assessed the dispositional factors of public trust and the seriousness of the offence by equating the Appellant's conduct to cases where the misconduct lay in the finding of guilt for a criminal offence. This error also led the Hearing Officer to effectively find that there was a range of penalty for the Appellant's conduct, and that a six-month demotion fell at the bottom of that range.

Issue iv: The Hearing Officer did not Apply the Principle of Restraint

33The Appellant submits the Hearing Officer erred by failing to apply the principle of restraint, or progressive discipline. In his reasons, the Hearing Officer does refer to the Appellant's ability to rehabilitate, and also warns the Appellant to "heed the principles of progressive discipline" himself or otherwise bring his usefulness to his employer into jeopardy. The Commission sees the Hearing Officer's failure to explicitly grapple with and apply the principle of progressive discipline as tied to his error of finding the Appellant's misconduct, because it was akin to a criminal offence, warranted a penalty that fell within a range from a six-month demotion to dismissal. In the circumstances here, where there was no criminal conviction and the Appellant had no prior disciplinary record, the penalty imposed did not adhere to the principle of progressive discipline.

Issue v: The Hearing Officer did not Err in Consideration of Financial Impact of Penalty

34At the penalty hearing, when he made submissions on specific deterrence, the Appellant relied on the career and financial consequences of the misconduct charge and penalty on the Appellant. The Hearing Officer was provided with some documentation on the actual financial impact a demotion would have on the Appellant. The Respondent did not make submissions on this dispositional factor and the Hearing Officer referred to it briefly in his reasons stating, "I do not find this information of assistance in this matter."

35The Commission agrees the financial impact of penalty is a factor recognized in Krug v. Ottawa Police Service, 2003 CanLII 85816 at para. 69 and may serve as mitigation. However, not every dispositional factor warrants an extensive discussion and the Commission does not view this as a case where this factor should carry much weight. As the Respondent submits, there was no evidence before the Hearing Officer about hardship. The Appellant addressed the tribunal at his penalty hearing and while he referenced his young family, made no indication to financial hardship himself.

Issue vi: The Hearing Officer did not Err in Consideration of Provocation

36At the penalty hearing the Appellant submitted the misconduct fell at the lower end of the spectrum of seriousness in part because it came about after the Appellant was provoked. Appellant's counsel stated he did not suggest "provocation in the criminal sense" but suggested it explained, rather than justified the Appellant's misconduct. Referring to Carson, supra, he submitted provocation could be considered when determining the appropriate penalty.

37The Hearing Officer referred to the Appellant's submissions on provocation at paragraph 38 of his reasons and the Carson case, supra. He made a finding that the tense atmosphere at the domestic call, which continued to the parking lot meeting, did not amount to provocation in this case. He referred to the Appellant's perceived mistreatment at the domestic violence call and then the dismissive, sarcastic behaviour of Vandenbrink when they later met in the parking lot.

38The Hearing Officer's finding the dispositional factor of provocation did not apply in this case is reasonable. The two cases relied upon by the Appellant described situations where the officers had been subject to prolonged personal or workplace stress prior to the misconduct. Here, the Appellant's misconduct arose after, according to the ASF, an isolated workplace disagreement where two officers were mutually displeased with the other. While the context of the utterance is a consideration, the Commission finds little if any weight should be given to the factor of provocation in this case.

Assessment of Penalty

39Having found the Hearing Officer's reasons contained errors in principle, the Commission must substitute a penalty. Aside from the specific findings made by the Commission in this decision, the Commission adopts the Hearing Officer's findings of facts. Apart from the seriousness of the offence and impact on public trust, which the Commission found the Hearing Officer erred in principle in considering, he weighed a number of other aggravating and mitigating factors.

40The other mitigating and aggravating factors considered included the Appellant's early guilty plea before the tribunal, the Appellant's employment history and his ability to be rehabilitated. He also found the Appellant had been specifically deterred by the disciplinary proceedings. The Commission sees no error in principle with respect to the application of those dispositional factors. The Commission has already examined the Hearing Officer's analysis of the mitigating factors of financial impact on the Appellant and provocation and has determined he did not err by giving these factors little weight.

41The Commission has found the Hearing Officer erred in principle by erroneously assigning heightened weight to the seriousness of the misconduct by deciding it was tantamount to a criminal offence. For the reasons given above, the Commission has found the Hearing Officer misapplied prior cases where officers were disciplined under s. 2(1)(a)(ix) of the Code and thus arrived at a penalty that was disproportionate to the seriousness of the Appellant's misconduct and the impact on the public trust, based on the circumstances set out in the ASF.

42That said, the Commission must now, in determining the appropriate penalty, assess the seriousness of the conduct. In doing so, we note this was a singular utterance made to another officer after his disagreement with a colleague had ended. The Commission therefore does not assign the same amount of weight to this factor as it would if the Appellant had in fact been found guilty of a criminal offence.

43The seriousness of conduct is, however, heightened by the appellant's reference to violence, and firearm violence specifically, with respect to a fellow officer. The ASF states the Appellant's partner, who heard the statement, did not think it was funny. The Commission finds the seriousness of the misconduct lies in the Appellant's failure to conduct himself according to the higher standards required of police officers. While the Commission does not find this conduct is as aggravating as cases where officers have been found guilty of a criminal offence, it does agree with the Respondent the language about firearm violence aggravates the factors of both the seriousness of the offence and public confidence in policing.

44The Commission has found that finding the Appellant's misconduct met the elements of the criminal offence of uttering threats was an error in principle. However, the language used and the impact it had on the Appellant's partner must be assessed in terms of seriousness. It is well settled that police officers are held to a higher standard of conduct than civilians when assessing the seriousness of an offence. The Commission recognizes the Respondent's submission that use of language related to firearm violence engages the dispositional factors of reputation of the service, the public trust and seriousness of the misconduct. The Commission finds those aggravating factors must be given weight.

45With respect to consistency of disposition, the parties have not provided the Commission with any case with similar facts, where an officer was found guilty of misconduct under s. 2(1)(a)(xi) of the Code of Conduct. Indeed, the only case to which the Commission has been directed by the parties involving similar misconduct, and where an officer pleaded guilty to discreditable conduct under the predecessor section to s. 2(1)(xi), resulted in a disposition of four days of forfeiture: Quintieri and Toronto Police Service, June 30, 1998, decision of Superintendent T. Kelley (unreported). In oral submissions to the Commission, counsel for the Appellant noted that the caselaw provided little guidance.

46The Commission takes some guidance from cases where misconduct, which resulted in a finding of discreditable conduct contrary to s. 2(1)(a)(xi) or its predecessor section, attracted dispositions within a range three to ten days forfeiture. In these cases, the discreditable conduct, though it did not result in criminal proceedings, also involved use of language that was profane, abusive, insulting and which was found to fall below the standard of behaviour from police officers when off or on duty: Constable Antonio Pacitto and the Toronto Police Service, 2004 CanLII 77205 (ON CPC); Jackson v. York Regional Police Service, 2011 ONCPC 12; Power v. London Police Service, 2014 ONCPC 9. The Commission recognizes that each case turns on its facts, and different mitigating or aggravating factors may be present as between this and prior cases. The Commission finds that these cases provide support for a disposition of forfeiture of days where discreditable conduct, as is the case here, lies in harmful and abusive language by an officer, that falls below the standard expected of officers and that negatively impacts the reputation of the service.

47In the result, while the Commission cannot accede to the Appellant's position that three days of forfeiture without anger management fully addresses the key aggravating factors in this case it agrees that, in the circumstances here, forfeiture and not demotion is appropriate. Having considered the aggravating and mitigating factors the Commission finds a penalty of forfeiture of seven days addresses the seriousness of the Appellant's conduct and provides a deterrent effect, while also giving weight to progressive discipline and the Appellant's ability to reform. The Commission further finds the anger management component of the penalty is relevant to the Appellant's ongoing rehabilitation and will also order the Appellant attend an anger management program.

ORDER

48The appeal is allowed. Pursuant to s. 87(8)(a) of the Act, the Commission varies the penalty imposed by the Hearing Officer. The Appellant is ordered to forfeit seven days and is further ordered to complete an anger management program approved by the Wellness Unit. The Appellant is to complete this training within 12 months of the date of the Commission's decision and provide proof of completion to the Wellness Unit and his Unit Commander.

Emily Morton

Caroline Fletcher-Dagenais

Released: December 13, 2024 Laura Hodgson

a) to cause death or bodily harm to any person;..."

Footnotes

1. 1This is an appeal pursuant to the now repealed PSA. As this matter was initiated prior to April 1, 2024, pursuant to s. 216(1) of the new Community Safety and Policing Act, 2019, S.O. 2019, c. 1., Sched. 1, this matter is dealt with in accordance with the provisions of the PSA as they read immediately before the PSA was repealed with necessary modifications.
2. 2Section 264.1(1)(a) provides: "Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat