TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Johnson v. Sault Ste. Marie Police Service, 2024 ONCPC 34

Date: 2024-12-18

File: 24-ADJ-002

Intervenor

Between:

Cst. Craig Johnson Appellant

And

Sault Ste. Marie Police Service Respondent

and

Tanya Venturi-Maville and Law Enforcement Complaints Agency Public Complainant

DECISION AND ORDER

Panel: Laura Hodgson, Vice Chair Emily Morton, Vice Chair Caroline Fletcher-Dagenais, Associate Chair

Participants: For the Appellant: P. Machado, counsel For the Respondent: J. Dubois, counsel Public Complainant: Tanya Venture-Maville

Held by Videoconference: October 2, 2024

Introduction

1In a decision dated July 7, 2023, the Hearing Officer, Superintendent (Retired) Robert Gould, found the appellant, Constable Johnson, guilty of four counts of discreditable conduct and five counts of deceit contrary to the Code of Conduct under the Police Services Act (the PSA). He was found not guilty of one count of corrupt practice.

2Prior to commencing the misconduct hearing on its merits, the Hearing Officer dismissed the appellant’s motion to stay the proceedings for abuse of process, with reasons given January 3, 2022.

3In the penalty disposition dated March 6, 2024, the Hearing Officer ordered the appellant dismissed from the Sault Ste. Marie Police Service (the Service) unless he resigned within seven days.

4The appellant appeals from the decision dismissing the motion to stay the proceedings and from the misconduct and penalty decisions¹.

5In a preliminary motion before the Commission, the appellant sought to introduce new evidence that was not before the Hearing Officer. The Commission dismissed the motion at the hearing with reasons to follow. Those reasons are provided in this decision.

6For the reasons below, the appeal from the Hearing Officer’s dismissal of the stay motion, findings of misconduct and decision on penalty are dismissed.

OVERVIEW

7The appellant was working for the Service as a front desk duty officer on July 7, 2020. He was found to have fabricated an anonymous telephone complaint relating to a motorcycle allegedly speeding in a school zone. The owner of the motorcycle and his mother (the public complainant) were known to the appellant. The appellant and the public complainant reside in the same neighborhood. A prior altercation between the appellant and the public complainant’s son relating to his motorcycle had resulted in a previous complaint about the appellant to the Office of the Independent Police Review Director (Director).²

8The appellant was found to have queried the Service’s record management systems and the provincial transportation management system after allegedly receiving this call. Through the queries, he gained information on the public complainant and her son. The appellant then made statements to the Service’s dispatch, Central Emergency Reporting Bureau (CERB), in order to have the traffic complaint officially created and further investigated. He forwarded the complaint to the Service’s Alternate Response Unit (ARU) who issued a warning letter to the public complainant. The appellant was found to have made false and misleading notes in his duty book about the anonymous traffic complaint he claimed to have received.

9After receiving the warning letter, the public complainant registered a complaint with the Director. The information provided by the public complainant was that the motorcycle was no longer in use and was not in Sault Ste Marie at the time of the alleged complaint.

10The Service began an investigation following the complaint. Part of the investigation entailed a search of the Service’s telecommunication recording system (Commlog) to determine whether the alleged anonymous call had ever been received. The process of the disclosure of the results of that investigation, as well as allegations surrounding the quality of the Commlog search, became the subject matter of the abuse of process motion before the Hearing Officer, and now the fresh evidence motion before this Commission.

11The Service also required the appellant to submit a duty report and attend a compelled interview as part of the investigation. The appellant was found to have made a false compelled duty report and to have provided false information to the officer assigned to investigate the complaint.

THE STANDARD OF REVIEW

12the standard of review applied by the Commission when considering an appeal from the decision of a hearing officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Services v. Diafwila, 2016 ONCA 627. Questions as to whether facts satisfy a legal test are questions of mixed fact and law and are to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Cst. Ioan Floria v. Toronto Police Service, 2020 ONCPC 6; Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 53. Findings of fact and credibility assessments made by a hearing officer are owed particular deference: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (Ont. Div. Ct.).

13On an appeal from penalty, the Commission owes deference to the Hearing Officer’s weighing of dispositional factors and findings of fact. Unless there has been a clear error in principle or relevant material factors ignored, the Commission will not interfere with the penalty even if it would have come to a different conclusion. The Commission’s task is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him and determine whether the Hearing Officer’s decision was reasonable in the circumstances: Constable I. Karklins v. The Chief of Police - Toronto, 2010 ONSC 747 at para 10; Kobayashi and Waterloo Regional Police Service, 2015 ONCPC 12 at para 33.

PRELIMINARY ISSUE

Dismissal of the appellant’s motion to admit fresh evidence

14The appellant brought a motion to introduce fresh evidence at the appeal. Following submissions, the Commission dismissed the motion with reasons to follow. The reasons below set out why the motion was dismissed.

15Section 87(5) of the Police Services Act provides that a hearing before the Commission shall be an appeal on the record but that “…the Commission may receive new or additional evidence as it considers just.” When deciding whether to receive new evidence under s. 87(5), the Commission has in previous decisions (see e.g., McArthur v. Guelph Police Service, 2023 ONCPC 18; Reeves v. London Police Service, 2021 ONCPC 3; Cameron v. Durham Regional Police Service, 2021 ONCPC 11) applied the traditional four-part test for the admission of fresh evidence on appeal as set out in R. v. Palmer, 1979 CanLII 8 (SCC):

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in a civil case;

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

3. The evidence must be credible in the sense that it is reasonably capable of belief, and;

4. It must be such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result.

16The appellant sought to admit as fresh evidence multiple documents including Service sign in sheets from August 2023, reports from Commlog from August 2023, and communications between the appellant and various Service members in 2023 and 2024 with respect to the Service’s recording system. All of this information post-dates the disposition of the misconduct charges on July 7, 2023.

17The appellant’s 2023 inquiry into the Service’s recording of calls was triggered by the appellant observing calls taken by speaker phone at the Service’s duty desk in April and August of 2023. In the appellant’s submission, the fresh evidence would help establish the overall unreliability of the Service’s Commlog system and more specifically its fallibility with respect to calls taken at the duty desk by speakerphone.

18The respondent’s position is that the appellant failed to meet the test for admission of fresh evidence. The appellant did not exercise due diligence and could have proffered evidence relating to calls handled by speakerphone at the hearing. Further, the evidence is not relevant to a determinative issue as there was no evidence at the hearing, from the investigators or the appellant, who testified at his own hearing and gave numerous pre-hearing statements, that he used the speaker phone when the alleged anonymous call was received in July 2020. The respondent also argues the evidence is not credible and could not have affected the hearing result as it fails to establish there are phone calls missing from the recordings retrieved by the Service for July 7, 2020, the date of the alleged anonymous call.

19The Commission has held that if the first part of the test cannot be met there is no need to consider the other parts and that, in any event, all four parts of the test must be met: Mulholland v. Peel Regional Police Service, 2014 ONCPC 8 at para 56, Adam Nobody v. Cst. Babak Andalib-Goortani and Toronto Police Service, 2017 CanLII 44994 at para 15.

20We agree with the respondent’s position that the first branch of the Palmer test has not been met as the proposed evidence could have been obtained prior to and adduced at the first instance hearing. The reliability of the Commlog system was highly contested before the Hearing Officer; a core facet of the appellant’s defence was that the Commlog system did not accurately record each phone call received, which he argued explained the Service’s failure to retrieve the anonymous call he claimed to have received on July 7, 2020. The reliability of the Commlog system was also a focus of the abuse of process motion, heard two months before the hearing commenced. It was open to the appellant to adduce evidence with respect to the recording of speaker calls at that time, if they were relevant to this issue.

21Even applying a flexible approach to the first factor of due diligence and considering the specific circumstances of this case, the Commission finds that this evidence could have been adduced, by due diligence, at the first instance. As noted by the respondent, the appellant had worked at the duty desk taking calls and was familiar with the phone system but did not request information about speaker calls until August of 2023, after the findings of misconduct. Moreover, the appellant had never indicated, in either notes, compelled interview or hearing evidence, that he received the anonymous call by speakerphone.

22This Commission has previously noted an appeal is not a second chance to compensate for any perceived shortcomings in a party’s case, and the Supreme Court has noted an appeal is not a retrial: Nobody, supra at para. 16; Barendregt v Grebliunas, 2022 SCC 22 at para. 1. The appellant was represented by counsel throughout the hearing and had the opportunity to present this evidence at that time. The motion to adduce fresh evidence is dismissed.

ISSUES On AppEal

23In his factum, the appellant raises 14 grounds of appeal and within those grounds multiple sub-issues are raised. We have fully reviewed and considered all alleged errors. Though they are not all fully detailed here, we do not find that any would change the result. The appellant’s principal grounds of appeal can be summarized as follows:

i. Did the Hearing Officer err in dismissing the appellant’s motion to stay proceedings for abuse of process?

ii. Did the Hearing Officer err in finding the appellant guilty of discreditable conduct and deceit?

iii. Did the Hearing Officer demonstrate a reasonable apprehension of bias?

iv. Did the Hearing Officer contravene s. 95 of the PSA?

v. Did the Hearing Officer err with respect to penalty?

ANALYSIS

i. Did the Hearing Officer err in dismissing the appellant’s motion to stay proceedings for abuse of process?

24The appellant brought a prehearing motion before the Hearing Officer to stay the first instance proceedings on the basis of abuse of process. In his reasons for dismissing the motion the Hearing Officer distilled the 109 grounds raised by the appellant on the motion into four general themes:

1. Lack of timely production of documents;

2. Lack of a proper investigation into alleged misconducts;

3. Failure to provide radio transmission data; and,

4. Loss of radio transmission data.

25The Hearing Officer concluded that the appellant did not meet the high threshold for establishing an abuse of process that warranted a stay on any ground.

26On appeal, the appellant raises largely the same grounds and submits that the Hearing Officer erred in finding no basis to stay the proceedings. We do not agree and uphold his dismissal of the motion.

27The Hearing Officer thoroughly and correctly canvassed the relevant case law. He recognized that administrative tribunals should only find that there has been an abuse of process in the clearest of cases, that these cases will be extremely rare and that it was necessary to find, “the damage to the public interest in the fairness of the administrative process should the proceedings go ahead would exceed the harm to the public interest in the enforcement of legislation if the proceedings were halted’”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para. 120. The Hearing Officer properly noted that, when balancing interests, he had to consider the involvement of a public complainant in these proceedings. The Hearing Officer also cited this Commission’s decision in Groat and Quinte West Police Service, 2001 CanLII 56732 (ON CPC) at para. 52:

To exercise such exceptional authority, a tribunal must be satisfied that the conduct in question is so wrong that it would violate the conscience of the community, fundamental justice and fair play; prejudices an accused officer or the integrity of justice and that no other remedy is reasonably capable of removing that prejudice. The onus is on the subject officer.

28On appeal, the appellant submits that, among other things, the Hearing Officer erred in finding the respondent provided timely disclosure. The Hearing Officer fully detailed the proceeding’s timeline and correspondence between parties from the incident date to the date of the motion hearing. The Hearing Officer found that the respondent commenced the disclosure process on April 12, 2021, four days after the Service served the Notice of Hearing and provided the majority of disclosure around that time. He found the respondent continued to make disclosure and respond to requests from the appellant until October 19, 2021. The Hearing Officer noted that the respondent disclosed recordings of all incoming calls from the date in question. The appellant only asked for disclosure of radio transmission recordings in October 2021. These factual findings are entitled to deference, and in the Commission’s view those findings were reasonable. Ultimately, the Hearing Officer concluded that a disclosure timeline of five months was not unusual in a proceeding of this nature.

29It was open to the Hearing Officer to conclude, based on the evidence, that the case had progressed appropriately, and the five-month production period did not warrant a stay. He fairly noted that this matter was simply not comparable to other cases where delay constituted an abuse of process (e.g., Keith Ryan v. Cst. Ramos, 2019 ONCPC 5). The Hearing Officer also found that the appellant had not pointed to any specific prejudice arising from the overall timing of disclosure. In our view, the Hearing Officer correctly found there was no breach of procedural fairness in this case and that this case falls short of warranting the exceptional remedy of a stay because of delayed disclosure.

30The appellant also submits that the Hearing Officer erred in finding that the respondent’s investigation into the misconduct was not an abuse of process. On the motion, the appellant alleged that the respondent did not appropriately review the Service’s data from July 7, 2020, and that recorded incoming calls were missing. The reliability, or the completeness, of the Service’s recordings of incoming calls from that date was a live issue at the hearing on the merits and before this Commission on appeal. In his motion decision, the Hearing Officer found the evidence established that Service members had listened to all recordings of incoming calls from the date in issue to determine if there was an anonymous traffic complaint. He concluded, “I find that the Respondent and Service have collected and reviewed the data from the incoming calls to the service that are integral to the misconducts in this case.”

31The Hearing Officer was also satisfied that, for the purpose of the motion, the respondent had “sufficiently answered” the issue of alleged “missing calls” by explaining the Commlog numbering system. The evidence was to be tested at the hearing proper. These factual findings were reasonable, based on the evidence and are entitled to deference from the Commission.

32The Commission finds the Hearing Officer’s conclusion that the respondent’s investigation did not amount to abuse of process was correct. The Hearing Officer provided thorough reasons, including the fact that the appellant failed to point to investigative actions warranting a stay of proceedings, and the Commission agrees with the Hearing Officer’s findings that there was no abuse of process.

33Lastly, we do not agree that the Hearing Officer erred in concluding that the failure to disclose and the ultimate loss of radio transmission recordings amounted to an abuse of process. On appeal, the appellant continues to assert that the non-disclosure of the radio transmission recordings constitutes “an egregious breach of the duty of fairness, which could only be remedied with a stay of proceedings”. In our view, this was not established on the evidence and, based on the Hearing Officer’s reasonable findings of fact with respect to the evidence’s relevance, there is no basis to intervene.

34The Hearing Officer reviewed the disclosure and found the respondent had, on May 10, 2021, produced all recordings of incoming calls and pages to the Service’s duty desk on the date of the alleged anonymous telephone call - July 7, 2020. As noted, recordings of radio transmissions were not disclosed at this time. It was the respondent’s position that recordings of radio transmission received by the Service on July 7, 2020, were not relevant to these proceedings which centered around an alleged anonymous phone call. Radio transmission recordings were, however, requested by the appellant on October 12, 2021, after it had learned that these recordings had been destroyed in the August 26, 2021 ransomware attack.

35It was the appellant’s position that it was “possible” that a telephone conversation occurring at the duty desk may be overheard on a recording of an incoming radio transmission. He asserted that the loss of the recordings of radio transmissions from the day in question meant the loss of arguably relevant evidence. As a result, he submitted that a stay of proceedings was required.

36The Hearing Officer rejected this, finding little evidence that the recordings of radio transmissions were necessary when the requisite recordings of phone calls were available. He found that, given the circumstances of this case, the recordings of the radio transmissions, were not arguably relevant. He concluded that there was no air of reality to the appellant’s assertion that he was unable to make full answer and defence because of the loss of unrelated radio transmission recordings.

37Contrary to the appellant’s assertions on appeal, the Hearing Officer did not simply rely on his own experience to assess the relevance of the recordings of radio transmissions in the circumstances of this case. The Hearing Officer fully reviewed the appellant’s affidavit evidence, provided by executive members of the appellant’s union, that indicated dispatch radio calls “may” pick up background telephone calls. This evidence had to be weighed against the evidence that the search of actual incoming calls did not yield a recording of the call. The Hearing Officer reasonably concluded that, in the context here, the appellant failed to establish the recordings of radio transmissions were relevant. He noted, “I can’t uncover the evidentiary need for these transmissions to be required when the allegation and supporting information all indicate a phone call as the essential factor in the misconduct.” He also found it was not established that a call being answered at the duty desk could be overheard and recorded by the systems that record the radio transmissions. The Hearing Officer fairly and reasonably rejected the appellant’s suggestion of the possible relevance of the transmissions. The Hearing Officer’s findings that there was no breach of procedural fairness and that there was no abuse of process were correct, based on his reasonable findings of fact, including the finding that these transmissions were not relevant.

38While the Hearing Officer found that the appellant had not established the loss of the radio transmission recordings were an abuse of process that warranted a stay, he left it open for the appellant to revisit the issue at the hearing proper. The Hearing Officer fairly noted that he would perhaps be better placed to weigh the relevance of the lost radio transmission recordings in the context of the respondent’s case at that time.

39At the misconduct hearing, with limited submissions from counsel, the Hearing Officer did revisit the issue of whether the lost radio transmission amounted to abuse of process. In his July 7, 2023, reasons he concluded “I find in further examining the evidence as a whole presented in this case that there is no support for a finding that the missing anonymous phone call taken by [the appellant] could somehow have been recorded as background noise to a radio dispatch transmission recording ....”

40In the reasons dismissing the motion, the Hearing Officer thoroughly assessed the relevance of the lost radio transmission recordings. Given the nature of the evidence at issue (recordings of incoming radio transmissions) and nature of the misconducts (a fabricated incoming telephone call), the Hearing Officer correctly concluded that there was no abuse of process warranting a stay of proceedings.

41The Hearing Officer correctly instructed himself on the high standard applied to stay proceedings. In his lengthy reasons dismissing the motion, the Hearing Officer fully considered the evidence and broad issues raised by the appellant. He made findings of fact that were reasonable and available to him on the evidence. The Hearing Officer correctly found that the appellant failed to establish that the fairness of the hearing was compromised or that there was prejudice to the appellant that would bring the system into disrepute. The Hearing Officer found that, in the circumstances here, proceeding with the merits hearing would not violate the conscience of the community and impair the fundamentals of natural justice. This conclusion was correct, and therefore also reasonable.

ii. Did the Hearing Officer err in finding the appellant guilty of discreditable conduct and deceit?

42The Hearing Officer found the appellant not guilty of corrupt practice but guilty of four counts of discreditable conduct and five counts of deceit. All counts related to the appellant fabricating an anonymous telephone call allegedly complaining about the public complainant’s motorcycle, the appellant’s subsequent improper data inquiries into the public complainant to obtain information about a motorcycle associated to her family, and false statements and reports with respect to this fabricated call and queries.

43The findings of discreditable conduct (section 2(1)(a)(xi) of the Code of Conduct) can be summarized as follows:

• Discreditable conduct 1 (count 2): The appellant fabricated a call to the service complaining about a motorcycle belonging to the public complainant. This resulted in the issuance of an occurrence report and a warning letter to the public complainant.
• Discreditable conduct 2 and 3 (counts 3 and 4): The appellant used the Service’s MTO/ISS computer system to make unauthorized queries about i) the public complainant and ii) her son to determine the licence plate of the motorcycle he was generating a complaint about.
• Discreditable conduct 4 (count 5): The appellant used the Service’s OPTIC NICHE/RMS portal system to make further inquiries into the public complainant and her family.

44The findings of deceit (section 2(1)(d)(ii) of the Code of Conduct), can be summarized as follows:

• Deceit 1 (count 6): The appellant initiated a traffic complaint by phoning the dispatcher in CERB and falsely reporting an anonymous call. At that time, he indicated that the public complainant’s son was likely the driver of the vehicle: “I guarantee it’s the wife’s son driving the bike”.
• Deceit 2 (count 7): The appellant made false, misleading notes that he received an anonymous complaint.
• Deceit 3 (count 8): The appellant wrote an email to the Alternative Response Unit about the alleged traffic complaint. He again identified the public complainant’s son as the likely driver of the motorcycle, “I guarantee it’s the wife’s son driving the bike and have seen him on numerous occasions racing down the street.”
• Deceit 4 (count 9): The appellant provided false information that he received an anonymous call in a compelled duty report ordered in response to the complaint to the Director.
• Deceit 5 (count 10): The appellant made false statements that he received an anonymous call in a compelled interview conducted by the Service in relation to the complaint.

45The appellant raises multiple interrelated grounds of appeal with respect to the Hearing Officer’s findings that the appellant was guilty of discreditable conduct and deceit. The Hearing Officer’s alleged errors can be grouped as follows: the misapprehension of evidence; erroneously finding intent; reliance on his own experience; erroneous assessment of the medical evidence; and, reversing of the burden of proof.

No Misapprehension of Evidence

46In his reasons for finding the misconduct had been proven, the Hearing Officer fully set out the legal tests for both discreditable conduct and for deceit. With respect to discreditable conduct the Hearing Officer correctly noted that the test for finding the appellant acted in a manner prejudicial to or likely to bring discredit upon the reputation of the Service is an objective test with the conduct measured by the standard of a reasonable person in the community. The test is based on the view of a dispassionate person, fully apprised of the factual circumstances and aware of relevant rules and regulations: Galassi v. Hamilton (City) Police Service, 2003 CanLII 75459 (ON CPC) at para. 15, aff’d 2005 CanLII 20789 (ON SCDC).

47The Hearing Officer also correctly instructed himself that the misconduct of deceit was to “willfully or negligently make a false, misleading or inaccurate statement pertaining to official duties” and that according to the jurisprudence, inaccuracy alone is insufficient, and a statement must be made with the intent to mislead: Geske and Hamilton Police, 2003 CanLII 87657 (ON CPC).

48The Hearing Officer did not accept the appellant’s evidence that he received an anonymous call about the public complainant’s vehicle and then queried the appropriate information on July 7, 2020. Based on the respondent’s evidence, which included no record of the call or the appellant’s database queries regarding the allegedly reported plate number, the Hearing Officer found that the misconducts of discreditable conduct and deceit were established on clear and convincing evidence.

49The appellant does not dispute that the Hearing Officer cited the correct legal tests but asserts that he erred in his assessment of credibility and his findings of fact.

50Firstly, we find no error in the Hearing Officer’s assessment of credibility of either the appellant or the respondent’s witnesses. The Hearing Officer correctly set out the O’Halloran test (Faryna v. Chorny, 1951 CanLII 252 (BC CA)) and the factors to consider in making credibility assessments as set out in Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053 (ON SC). We have reviewed the Hearing Officer’s comprehensive reasons considering each witnesses’ evidence and find he properly considered the relevant factors and his findings were reasonable.

51The Hearing Officer asked himself if, with respect to the core issues - whether the appellant received an anonymous phone call and whether he ran database queries to find the allegedly provided plate number - the appellant’s testimony “resonates as true and credible.” The Hearing Officer concluded that it did not. He fully reviewed disparities in the appellant’s evidence which included discrepancies between his testimony and the initial description he provided to the dispatcher. He also noted the appellant’s demeanor (finding him opinionated and argumentative on unrelated issues) and illogical aspects of his account, such as his query of the public complainant and her son by name if the anonymous caller reported a licence plate number. The Hearing Officer concluded that the appellant’s testimony did not “ring as true”, there was no corroborating evidence and ultimately his testimony about the reception of an anonymous call and his data queries was not credible. The Hearing Officer found that, after fabricating the anonymous traffic complaint, the appellant continued to lie about this transgression during the investigative stage. The Hearing Officer noted that, outside of the testimony of the appellant himself, the defence presented limited evidence. These findings were reasonable and are owed deference.

52The Commission also finds no error in Hearing Officer’s assessment of the credibility of respondent’s witnesses or the weighing of their evidence. Service members testified about the Service recording and data systems. The Hearing Officer, in his reasons, clearly accepted their explanations of how the different systems functioned and why there could be multiple recordings, gaps or perceived issues with the sequential numbering of calls in the records. The Hearing Officer found that “[t]hey can, and did, provide evidence that the systems were functioning” and “[t]heir testimony was clear, on point and creditable.” The Hearing Officer was entitled to accept their evidence that the Service systems were functioning and reliable and the Commission finds these findings reasonable.

53It was the appellant’s position that there was no record of the incoming anonymous call or his query of the licence plate not because it did not occur, but because the Service’s recording system was faulty. The appellant alleges the Hearing Officer erred in his assessment of this aspect of his defence, asserting that: “the fact that [the Hearing Officer] overlooks any notion that there could have been an error in the system is a fatal error.”

54The Hearing Officer did not overlook the appellant’s primary submission that the Service records were unreliable. In the reasons for misconduct, the Hearing Officer set out the appellant’s position that there were “errors in the system” and gaps in the recordings. He observed, “[the appellant] would have me believe that multiple systems were faulty or that there was something not right at the Service. All theories argued, but little tangible evidence to support those theories.”

55The Hearing Officer reviewed all of the evidence of the Service employees who listened to all recordings of incoming calls on July 7, 2020, and who noted the sequential numbering of the recordings in the system and determined there was no anonymous call on that date. The Hearing Officer noted employees relied on data compiled from the Service’s computer systems, recordings, and off-line queries of Federal and Provincial systems.

56Sergeant Miron, who the Hearing Officer found to be straightforward and impartial, testified that all calls to the duty desk were recorded and he thoroughly reviewed the complex systems relating to the recording of incoming calls and internal pages. He explained perceived discrepancies such as multiple calls or gaps in a recording. The Hearing Officer found Sgt. Miron’s evidence to be of assistance in understanding the Services’ systems.

57The Hearing Officer concluded, “I find the call is not lost, but in fact the evidence indicates that it was never received.” The Hearing Officer ultimately rejected the possibility that the Service’s records were either incomplete or unreliable:

In this case, that data indicates that the anonymous phone call, at the heart of this matter, does not exist, when it would if it in fact was received. I have every confidence the system was working properly. I find, when I consider the witnesses who were tasked with the data retrieval and analysis, that I’m left with an overwhelming feeling of complete belief in their understanding of the systems and results. Their testimony was clear, on point, and creditable. [the appellant]’s suggestions about the multiple systems failures were shallow, misdirected, and clearly an attempt to cover up his transgressions. These suggestions were void of any creditable support or corroboration.

58The Commission must refrain from reweighing and reassessing the evidence, and credibility assessments are owed deference: Toronto Police Service v. Blowes-Aybar, supra, Dr. Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 38. The Hearing Officer’s assessment of credibility cannot be characterised as unreasonable; there is an evidentiary foundation for his conclusion that the Service’s July 7, 2020, records were reliable and the Hearing Officer’s reasons for accepting the Service’s evidence in this regard were reasonable. The Hearing Officer gave full consideration to the appellant’s theory that the systems were unreliable at the time of the call, even though there was minimal evidence advanced in support of this theory. The findings are reasonable and there is no basis to intervene.

No Error Finding Intent

59The appellant asserts that the Hearing Officer erred in finding the appellant had the requisite intent for deceit because the Hearing Officer concluded that the evidence fell short of establishing a motive for fabrication. We disagree and find the Hearing Officer properly articulated and applied the law with respect to intent. The appellant also argues that the Hearing Officer erred in finding intent due to the appellant’s medical conditions. That argument is addressed below as part of the considerations of the appellant’s argument regarding the assessment of medical evidence.

60In his reasons, the Hearing Officer correctly set out the test for deceit. In addition to citing Geske, supra, he referred to Lloyd and London Police Service, 1999 CanLII 31609 (ON CPC) para. 70, for the proposition that an inaccurate statement alone is insufficient and there must be intention to deceive. He also correctly held it is a “long mile” from finding inaccuracy to determining that a statement was made with intention to deceive: Precious and Hamilton Police Service, 2002 CanLII 63881 (ONCPC) at para. 58. It is settled that establishing a motive is not necessary for a finding of deceit, only proof of intent to mislead is necessary: Mcdermott and the Ontario Provincial Police, 1985 CanLII 3198 (ONCPC), para. 11. The respondent did not need to establish on clear and convincing evidence that the appellant had a motive or “nefarious reason” for the fabrications.

61The Hearing Officer ultimately concluded that the appellant “traversed the “long mile”” by intentionally fabricating the anonymous complaint and then “perpetuated” the fabrication with his colleagues and later investigators. He reasonably applied the elements of the legal test for deceit and inferred from the evidence that the appellant’s conduct was intentional: "each of the deceits were untruthful and were intentionally deceptive to either cover up his fabrication of the traffic complaint or to move others to act on it”. We cannot conclude that the Hearing Officer’s findings of intent, in the circumstances here, were unreasonable.

62The appellant also takes specific issue with the Hearing Officer finding the requisite intent with respect to count 10, which entailed the false statement made during his compelled interview with the Service, that he received an anonymous call. At the very outset of the compelled interview the appellant told the investigator that he had received an anonymous complaint on July 7, 2020. The Hearing Officer found there was intent to mislead and concluded this statement constituted deceit. The appellant alleges that the Hearing Officer erred in finding intent with respect to the statement in the compelled interview, without reviewing the appellant’s entire statement.

63During proceedings, the appellant suggested to the Hearing Officer that at the time of the compelled statement the appellant was not provided appropriate supports by the Service. As a result, the Hearing Officer determined that, based on the medical evidence and elements of the appellant’s compelled statement that could impact his credibility assessment, he would, out of an abundance of caution, only consider the first five pages of the compelled interview. Later in his decision, the Hearing officer notes:

It was obvious to me that [the appellant] became flustered after he was informed by the Investigator that the recording of the call was not found. I note that it certainly could be argued that [the appellant] was flustered because of his attempts at being untruthful, however, with caution in mind I set aside the statements made after the identification by the Investigator that there was no anonymous traffic call located.

64The Hearing Officer chose to only consider the first five pages of the compelled statement out of fairness to the appellant and so it would not unfairly impact his credibility assessment. The appellant does not point to or explain how consideration of any passage in the portion of the statement the Hearing Officer set aside impacts the issue of intent. Based on the portion of the compelled statement considered and the evidence as a whole, we find it open to the Hearing Officer to make a finding there was intent to deceive the investigator for count 10.

The Hearing Officer did not improperly rely on his own experience

65The appellant submits that the Hearing Officer improperly relied on his own experience when assessing the reliability of the Service’s records. As set out in detail above, at the hearing, the appellant questioned respondent witnesses about anomalies in the Service’s recording system. In his reasons, the Hearing Officer notes that Sgt. Miron gave detailed testimony about the Service’s communication systems and recordings, explained alleged “gaps” and how multiple recordings happen.

66The Hearing Officer was clearly satisfied with the explanation offered by Sgt. Miron; “[the appellant] has suggested that the dropped 911 calls that were described by Sgt. Miron in his testimony were somehow indicative of a recording problem and added credence to the argument that the system failed to record. I find no evidence of this and would add that this suggestion was overstated in closing arguments by [the appellant].” The Hearing Officer then noted:

This is a timing issue with Bell 911 that I dealt with many times in my role as Commander of Dispatch at WRPS prior to the next generation 911 coming into place. The system is activated by a 911 call that the person hangs up so quickly that no data (location and subscriber) is captured about the caller; however, there is enough time to register a call in the system. It does not concern me that this has any bearing on this case.

67More generally, the Hearing Officer noted that he had a “working understanding” of how data systems at the Service operated: “I can, with confidence, acknowledge that the explanations of how the systems worked provided by Sergeant Miron and Ms. MacKinnon only confirmed my prior understanding.”

68We see no error in how the Hearing Officer applied his knowledge and experience here or elsewhere in his reasons. Hearing officers use both their practical and specialized knowledge of police service operations to interpret the evidence before them: Pais v. Toronto Police Service, 2023 ONCPC 14 at para. 86. While a hearing officer cannot use their experience to fill in gaps in the record or to make essential findings of fact, they can, as the Hearing Officer did here, use it to evaluate the evidence: Siriska v. Ontario Provincial Police, 2022 ONCPC 8 at para. 36, Stevenson v. York Regional Police Service, 2013 ONCPC 12 at paras. 162-170. We find this is a case where the Hearing Officer drew on specialized knowledge about the operation of telecommunication recording systems. The Hearing Officer noted his understanding of the complex data systems that witnesses testified about, including technical issues with respect to the recording of 911 calls, and then assessed the relevance of that evidence to the issues at hand. As well, the Hearing Officer’s relation of his own experience on this narrow issue was not the basis for his conclusion the Service’s recording system was reliable. It supplemented one issue about the recording system that the respondent’s witnesses had already given evidence on. The Hearing Officer’s application of his own specialized knowledge to interpret and evaluate evidence relating to the Service’s data systems does not amount to an error.

No Error in assessment of Medical Evidence at the Merits Hearing

69At the merits hearing the appellant’s primary position was that, on July 7, 2020, he in fact received an anonymous call about the public complainant’s motorcycle and the Service’s Commlog system failed to record the call. As an alternative or secondary submission, the appellant asserted that he suffered from a medical condition that impacted his memory thus making any wrongdoing unintentional. On appeal the appellant submits that, at both the merits and penalty hearings, the Hearing Officer erred in his assessment of the physicians’ expertise, misapprehended the medical evidence and failed to give the appellant’s medical evidence appropriate weight.

70At the merits hearing, the appellant’s treating physician, Dr. Jacobson, testified that the appellant’s “primary diagnosis was chronic fatigue syndrome [CFS], with secondary contributing factors of toxic effects of mold exposure, and late-stage Lyme disease”. He described the appellant’s symptoms as slow mental processing and impaired memory and focus, problem solving and multitasking. Dr. Jacobson agreed that the medical condition would not result in delusions or confabulation. In a November 2021 letter, Dr. Jacobson indicated that the appellant’s medical condition could have contributed to the alleged misconducts. He later acknowledged that he had not read the investigative report outlining the misconducts prior to writing this. Dr. Jacobson had also previously signed a form confirming the appellant’s ability to attend use of force training and to attend court.

71In response to Dr. Jacobson’s evidence at the merits hearing, the respondent called Dr. Salit, who was qualified as an expert in internal medicine, infectious diseases, HIV and CFS. Dr. Salit testified that, based on reliable testing completed in Ontario, he disagreed with the appellant’s diagnosis of Lyme disease. In his opinion, the symptoms of CFS do not cause a person to lie or confabulate. The respondent’s position therefore was that there was no nexus between the appellant’s diagnoses and the misconducts.

72At the penalty proceedings, a different physician (Dr. Cook) gave evidence for the appellant and Dr. Salit was recalled to respond to this evidence. There, the appellant again sought to establish a nexus between the appellant’s medical condition and the misconducts. In submissions to the Commission the appellant merged the Hearing Officer’s treatment of the medical evidence at the two proceedings; the Commission will not do so here. We address the treatment of the medical evidence at the misconduct proceedings now and below, as part of the review of penalty, we will address the Hearing Officer’s treatment of the medical evidence at the penalty proceedings.

73In his misconduct reasons, the Hearing Officer noted that Dr. Jacobson was not an independent witness but was a self-described advocate for his patient, the appellant. The Hearing Officer had concerns with aspects of Dr. Jacobson’s evidence including that he initially indicated he had reviewed the investigative report with respect to the appellant’s misconduct when later he confirmed he had not. Dr. Jacobson’s understanding of the misconduct charges was an important consideration when assessing his evidence. The Hearing Officer accepted Dr. Salit’s opinion that he did not see a connection between the alleged misconducts and the appellant’s symptoms and diagnosis.

74The Hearing Officer recognized that the misconducts all flowed from the alleged fabricated telephone call. He found that the appellant was “not simply inaccurate in his duties involving this matter, but clearly intended to mislead”. He found the medical evidence was of minimal value:

I find it clear what his medical issue are, and were, but can find no clear evidence that these conditions would have caused a fabrication of the traffic complaint. To the contrary, both Doctors stated that [the appellant]’s condition would not include fabrication, and [the appellant] himself has never said that his medical condition would cause him to have fabricated the traffic incident.

75In the appellant’s view, the Hearing Officer erred in his assessment of both physicians’ expertise. With respect to Dr. Jacobson, the appellant contends that the Hearing Officer followed a “strict interpretation of the qualifying process for an expert.” There is no merit to this submission. Dr. Jacobson was never put forth as an expert witness by the appellant. The Hearing Officer accepted the evidence and found that Dr. Jacobson’s evidence assisted him in understanding the appellant’s symptoms and treatments. However, he also concluded that much of his evidence was general and unrelated to the specific issue of a correlation between the medical issues and the alleged misconducts. These are issues of weight given to evidence and findings of fact, which are owed deference by this Commission. In the Commission’s view, these findings are reasonable.

76With respect to the respondent’s witness Dr. Salit, the appellant submits that the Hearing Officer failed to clarify the boundaries of Dr. Salit’s expertise. Again, we do not agree. As opposed to Dr. Jacobson, who was not brought forth as an expert witness, the respondent specifically asked that Dr. Salit be qualified as an expert. The Hearing Officer held a voir dire before qualifying Dr. Salit as an expert at the misconduct hearing. In submissions to the Hearing Officer, counsel for the appellant stated, “I would agree that he can provide his expert opinion with respect to infectious diseases, internal medicine, and HIV specifically, as well as CFS, which he obviously has an extensive knowledge on.” The appellant then went on to dispute Dr. Salit’s qualifications with respect to Lyme disease and CFS “to an extent”. After hearing submissions, including the appropriate factors to consider, the Hearing Officer concluded that, in addition to the qualifications conceded by the appellant, Dr. Salit held expertise in CFS and could also assist in understanding the relationship between the overlapping symptoms of CFS and Lyme Disease. In the misconduct reasons the Hearing Officer states, “The Tribunal allowed the Doctor to be an expert witness in CFS, Internal medicine, Infectious Diseases, and HIV.” The Hearing Officer was aware of the requirements for qualifying an expert, he applied the correct test, he considered the relevant factors and identified the areas in which Dr. Salit was qualified, and those findings are reasonable.

77We also do not find that the Hearing Officer misapprehended the evidence or failed to give Dr. Jacobson’s evidence appropriate weight. In the lengthy misconduct reasons, the Hearing Officer fully assessed Dr. Jacobson’s evidence. He found the medical evidence with respect to the appellant’s symptoms of CFS and chronic Lyme disease helpful in understanding what the appellant experienced in 2020, but ultimately found no nexus between the symptoms of his illnesses and the misconduct charges. He accepted Dr. Salit’s evidence that, while people suffering from CFS may get confused, it will not lead a person to lie, which was the essence of the misconduct charges at issue.

78Unlike Dr. Salit, Dr. Jacobson was not qualified as medical expert at the hearing. He gave evidence with respect to his patient’s symptoms and conditions and their possible connection to the misconducts. The Hearing Officer fairly explained why he gave Dr. Jacobson’s evidence limited weight and didn’t accept his contention that there was a sufficient nexus between the appellant’s medical condition and the misconducts. This conclusion was open to him on the evidence, particularly as Dr. Jacobson was not properly apprised of the nature of the allegations, not having read the investigative report. The Hearing Officer was entitled to determine the weight to be accorded to the evidence and accept some, all or none of the witness’s evidence: Kobayashi and Waterloo Regional Police Service, 2015 ONCPC 12 at para 38. We find the Hearing Officer’s conclusions with respect to Dr.Jacobson’s evidence were reasonable.

79Further, we do not agree with the appellant’s submission that the Hearing Officer applied uneven scrutiny to the appellant’s medical evidence. The appellant submits that the Hearing Officer “does not hold Dr. Salit, who also had several typos in his reports, to the same standard. This is prejudicial to the Appellant, evidence of his bias and an error.”

80The issue of alleged bias is dealt with more fully below. With respect to his assessment of the medical evidence, the Hearing Officer’s failure to highlight typographical errors in Dr. Salit’s medical reports is not indicia of uneven scrutiny nor does it demonstrate bias. The Hearing Officer expressed concern with Dr. Jacobson opining on the connection between the appellant’s health and the misconducts when he was not fully aware of the nature of the misconducts. This is a foundational issue that goes to the heart of the reliability of the witness’s evidence and is not comparable to typographical errors in a report. Lastly, the Hearing Officer did not base his reasons on Dr. Salit’s report alone; he clearly considered all of Dr. Salit’s testimony and was entitled to draw the inferences he did. We see no error here.

81The appellant ultimately asks us to revisit the medical evidence presented at the merits hearing, to assess and weigh it for ourselves, and to find a causal connection between the appellant’s medical condition and the misconducts. This is not our role. The Hearing Officer’s reasons demonstrate his full, fair consideration of the medical evidence proffered. There was ample evidence to support the Hearing Officer’s conclusion that the appellant failed to establish a nexus between his medical condition and the misconducts and we find this conclusion was reasonable.

No reversal of burden of proof

82The appellant alleges that the Hearing Officer reversed the burden of proof in the following ways:

• Stating that, “The assertion by the Prosecution that [the appellant] fabricated the traffic call is well-founded and supported. It only makes sense when viewed on the evidence and is in sync with the preponderance of probabilities that an ordinary person, with an understanding of the evidence, would find as fact.” (emphasis added)
• Noting that: “Outside of [the appellant]’s testimony, there was limited evidence presented by the Defence” and relying on the fact that the appellant can’t explain why the systems were faulty to conclude the appellant was lying.
• By making negative findings of the appellant’s credibility related to his presentation of “limited evidence” and negative findings of the appellant’s testimony and finding he attempted to “justify, explain, and misdirect the Prosecution’s evidence.”.

83The Hearing Officer cited and applied the appropriate standard of proof throughout his reasons for misconduct. At the outset of his analysis, citing Jacobs v Ottawa (Police Service), 2016 ONCA 345, he correctly noted the test for a finding of misconduct is on clear and convincing evidence, requiring a standard of proof higher than the balance of probabilities. Throughout his reasons, the Hearing Officer reminded himself that the onus was on the prosecution and that evidence needed to be cogent, weighty and reliable. With respect to the charge of corrupt practice, the Hearing Officer concluded that the prosecution did not meet its burden of clear and convincing evidence.

84We do not agree that the Hearing Officer’s one reference to a “preponderance of probabilities”, in the context of how an ordinary person would view the evidence, was, as suggested by the appellant “an egregious error” that reversed the burden or meant that the Hearing Officer applied the wrong standard of proof. Any misstep in word choice, given the reasons as a whole, does not indicate that the Hearing Officer applied the wrong standard of proof. When deciding whether a decision is reasonable, the Commission does not conduct a line by line “treasure hunt” for errors: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 102.

85The Hearing Officer also did not, as the appellant alleges, reverse the burden and require him to explain why the prosecution had no record of the alleged anonymous call. While the Hearing Officer rejected the appellant’s evidence that he received a call and noted he led no other evidence an anonymous call was made, he made these findings against the backdrop of a clear, well-reasoned conclusion that the prosecution had established the misconducts, through Service records and other evidence, to the clear and convincing evidence standard.

86This case is not comparable, as the appellant asserts, to Trlaja and Peel Regional Police, 2023 ONCPC 13 where the Commission found that the Hearing Officer reversed the burden by finding the appellant failed to properly explain why a complainant would make up allegations of sexual misconduct. In this case, the Hearing Officer carefully considered multiple sources of evidence that the recording system was reliable, and the fact there simply was not a recording of the anonymous call, to find the prosecution had met its onus. This finding about the recordings was buttressed by other circumstantial evidence, not least the appellant’s searches in the same timeframe of police databases to learn information about a motorcycle associated to the public complainant, the very subject matter of the purported anonymous call.

87Lastly, the appellant appears to assert that, in making negative findings of credibility against the appellant, the Hearing Officer reversed the burden. The appellant suggests that the Hearing Officer failed to consider the appellant “was not required to testify” and in finding the appellant, attempted to justify and misdirect during his testimony, reversed the burden.

88The Hearing Officer did not reverse the onus in his analysis of the appellant’s credibility. When he made negative findings of credibility, the Hearing Officer specifically instructed himself that the burden of proof was on the respondent:

I was taken aback by [the appellant] attempting to litigate the Prosecution’s evidence by giving opinion on matters that were not germane to his testimony. These occasions were the subject of objections by the Prosecutor. [The appellant] was visibly perturbed by the objections. [The appellant]’s defence seemed be about poking holes and misdirecting the evidence presented by the Prosecution. I understand that the proof of the case is the onus of the Prosecution. Outside of [the appellant]’s testimony, there was limited evidence presented by the Defence. (emphasis added)

89As noted by the respondent, the fact that the appellant was not required to testify does not shield him from negative findings of credibility when he did testify. It would have been an error for the Hearing Officer to not have considered the credibility of all the witnesses, including the appellant. The Hearing Officer’s negative findings with respect to the appellant’s credibility does not amount to reversing the burden.

iii. Did the Hearing Officer demonstrate a reasonable apprehension of bias?

90Throughout his oral and written submissions, the appellant alleges that the Hearing Officer, in numerous ways, demonstrated a reasonable apprehension of bias or “unconscious bias” as a result of the way he weighed evidence and made credibility assessments, and also because of his comments and purported interventions at the hearing. While we have reviewed and considered each allegation of bias raised by the appellant, we will not list them all here. The allegations of bias include:

• Demonstration of unconscious bias against the appellant and his disease that caused him to exclude relevant evidence;
• “Acted unfairly with a closed mind to several arguments which were antagonistic to the theory of the prosecution”;
• Failed to address impermissible comments by prosecution;
• Used the analogy of a “road trip” when setting out the timeline of events;
• Noting counsel for the appellant’s questions were confusing and repetitive;
• Demonstrated “tunnel vision” by not finding any credibility in the appellant’s evidence.

91The high threshold for a finding of bias has not been met. An allegation that a judgment may be tainted by bias or by a reasonable apprehension of bias is serious. The test is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly. There is a presumption of impartiality on the part of a tribunal, the onus is on the party alleging bias and the evidence must be clear and not rest on suspicion or speculation: Wewaykum Indian Band v. Canada, 2003 SCC 45 at paras 59-60 and 76; Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC).

92The appellant, under the rubric of bias, again attempts to have the Commission revisit factual findings made by the Hearing Officer on key live issues at the hearing, such as whether there was a nexus between the appellant’s medical symptoms and the misconducts or whether the Service’s system to record telecommunications was reliable. As noted elsewhere, there is an evidentiary foundation for the Hearing Officer’s conclusions, the conclusions do not constitute bias and there is no basis for the Commission to intervene. None of the issues raised by the appellant would cause an informed person to conclude that the Hearing Officer would not decide the matter fairly. For example, neither the Hearing Officer’s word choice of “road trip” in describing the timeline of events or his characterization of counsel’s line of questions as repetitive are sufficient, in the circumstances here, to rebut the presumption of impartiality.

93Further the appellant has raised the issue of bias for the first time on appeal. While he now takes issue with various comments made by the Hearing Officer during the hearing, the appellant failed to object on the basis of bias at the time the Hearing Officer made the comments. Concerns about bias should be raised as soon as possible: Gallant v. Ontario Provincial Police, 2017 ONCPC 16 at para. 27.

94Moreover, the Commission has reviewed the comments and alleged interventions the appellant now complains of and finds they could not establish a reasonable apprehension of bias even if the appellant had objected. The appellant now points to a limited number of comments made by the Hearing Officer, in the course of a lengthy hearing, to focus questioning, and a failure to speak when counsel for the prosecution made a comment, despite the lack of objection from counsel for the appellant. The Hearing Officer is entitled to control the proceedings. The specific allegations do not rise to a level where a reasonable member of the public, apprised of the cumulative record could conclude the presumption of adjudicative impartiality was displaced. This is not a case where the Hearing Officer “descended into the fray so as to undermine a sense of impartiality” or a case where the Hearing Officer “usurp[ed] the role of prosecuting counsel”: Law Society of Upper Canada v. Licio Edward Cengarle, 2010 ONLSAP 11.

iv. Did the Hearing Officer contravene s. 95 of the PSA?

95Section 95 of the PSA imposes confidentiality restrictions on persons involved in the administration of the complaints and the discipline process in Part V of the PSA, subject to exceptions. The appellant asserts that the Hearing Officer breached confidentiality by, on two occasions, sending communications to counsel from an email address different from the email address the Hearing Officer usually used and that bore a different first name than that of the Hearing Officer.

96Apart from the use of two email addresses, the appellant points to no other information that could support an allegation the Hearing Officer disclosed information to any other party in breach of the PSA.

97The appellant has not established that any confidentiality with respect to the disciplinary process was in fact breached by this method of communication. It is not clear that this second email was not used solely by the Hearing Officer. There is also no evidence that the appellant ever raised concerns with the email address at the time it was used by the Hearing Officer. There is nothing in the circumstances, given the lack of evidence here, to establish that the Hearing Officer breached any obligations or violated the requirements of section 95 of the PSA.

v. Did the Hearing Officer err with respect to penalty?

98The respondent sought the appellant’s dismissal and the appellant requested a demotion from first to second class Constable for one year. In an exhaustive 73 page penalty decision, the Hearing Officer assessed the evidence as it applied to the commonly cited disposition factors of public interest, seriousness of misconduct, recognition of the seriousness of the misconduct, employment history, personal circumstances/disability, rehabilitation, consistency, specific and general deterrence, damage to reputation of services and management practice: Krug v. Ottawa Police Service, 2003 CanLII 85816 (ON CPC) at para. 69. After considering each dispositional factor and assigning it the weight he found appropriate, the Hearing Officer considered the principles that govern the decision of whether the ultimate sanction of dismissal is warranted: Williams and Ontario Provincial Police, December 4, 1995 (OCCPS).

99The Hearing Officer ultimately concluded the appellant’s usefulness as a police officer “has been annulled” and ordered dismissal. He found that the seriousness of the appellant’s conduct warranted dismissal and this consideration was paramount; it could not be overcome by any of the mitigating factors or indicia of the potential to rehabilitate the Hearing Officer found in his analysis of the dispositional factors. The appellant submits that the Hearing Officer made numerous errors and asks that the penalty be varied to demotion. In our view, the Hearing Officer set out the correct test and he fairly considered the relevant dispositional factors, there is no error in principle and no basis for intervention.

No Error in Assessment of Medical Evidence at Disposition Hearing

100At the penalty hearing the appellant sought to have another physician, Dr. Cook, qualified as an expert in “infectious disease, tropical disease and Lyme disease” to “assist the Tribunal in understanding the medical impact on [the appellant]”. Largely, the appellant sought to revisit the issue previously decided by the Hearing Officer that there was no nexus between the appellant’s medical condition and the misconducts.

101Dr. Cook was the Director of the clinic the appellant attended. He assessed the appellant and wrote a report in October of 2023 following the findings of misconduct. The report addressed questions posed by the appellant’s counsel and set out the following:

• confirmation of Dr. Jacobson’s prior diagnosis;
• that the diagnosis will affect the appellant’s cognitive function including memory, attention, executive function and mood;
• that “[b]ased on the severity of his current and past symptoms, I suspect that these disorders played a significant role in his behaviour and conduct, though it is impossible to estimate an exact degree of relationship between his illness and the alleged misconduct.”;
• the appellant’s prognosis for recovery is optimistic with appropriate management; and,
• the appellant’s current health status is poor but he could be restored to “functional status” for police work in 12 to 18 months.

102In brief oral reasons following the voir dire at the penalty hearing, the Hearing Officer held that he would not qualify Dr. Cook as an expert witness but that Dr. Cook could give evidence with respect to the appellant’s medical condition. The Hearing Officer cited concerns that he would hear “repeat information” and that Dr. Cook was not independent. In his written reasons on disposition, the Hearing Officer more fully assessed the factors for receiving expert evidence as set out in R v. Mohan, 1994 SCC 1994 CanLII 80 (SCC), 2 S.C.R. 9: necessity in assisting the trier of fact, relevance, qualified expert and absence of exclusionary rule. The Hearing Officer also considered his broad ability to receive evidence pursuant to subsection 15 (1) of the Statutory Powers Procedure Act.

103In his reasons determining if Dr.Cook qualified as an expert witness, the Hearing Officer questioned the need to have another expert testify with respect to the appellant’s medical condition when two physicians had testified at the merits hearing and the Hearing Officer had determined the central issue of any nexus between the appellant’s illness and his misconduct. He noted there was no need for “competing experts” at the disposition stage. With respect to relevancy, the Hearing Officer expressed concern that as Dr. Cook did not review the appellant’s medical file, his testimony would not be relevant to what the appellant was experiencing at the time of the misconducts in 2020 or to his future treatment plan.

104Dr. Cook’s independence was a significant issue for the Hearing Officer when assessing his qualifications as an expert witness. In his reasons, the Hearing Officer noted that he did not find Dr. Cook to be independent from the appellant as he had a medical practitioner relationship with him as the Director of the clinic the appellant attended, as he supervised the appellant’s attending physician Dr. Jacobson, and had also previously authored both a medical form and grant request for the appellant. The Hearing Officer also found that “Dr. Cook’s demeanour and testimony leaned toward that of a strong advocate for [the appellant]”.

105While determining Dr. Cook did not meet the criteria to be an expert witness, the Hearing Officer did hold that he could testify with respect to his examination of the appellant in July of 2023 and the resulting October 20, 2023 report. The Hearing Officer determined that he would “allow the testimony of Dr. Cook to attempt to mitigate the disposition of [the appellant]”.

106We find it was open to the Hearing Officer to not qualify Dr. Cook as an expert witness. The application of the Mohan requirements (as modified by White Burgess Langille Inman v. Abbott and Haliburton Co, 2015 SCC 23) in any proceeding is case-specific. The Hearing Officer’s conclusions as gatekeeper, are owed deference: R. v. Herlichka, 2020 ONCA 307 at para. 79.

107Firstly, the Hearing Officer was correct to query whether and why expert evidence was required to provide testimony on a decision he had already determined. In his merits reasons the Hearing Officer had clearly set out that there was no clear evidence that the appellant’s medical conditions would have caused the fabrication of the traffic complaint and there was no nexus between the appellant’s medical conditions and the misconduct charges. It was also open to the Hearing Officer to determine that he did not need additional evidence to understand the medical issues, as he had already heard from two physicians at the merits hearing. As a result, the necessity, with respect to Dr. Cook’s expert evidence was not established.

108It was also open to the Hearing Officer to find that Dr. Cook was not sufficiently independent. In White Burgess, supra at paragraph two the Supreme Court held: “Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.” (see also Bruff-Murphy v. Gunawardena, 2017 ONCA 502 at para 38). The Court did note that this threshold requirement of independence is not particularly onerous and exclusion at this threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable to provide fair, objective evidence. One of the examples cited by the Supreme Court that will be of “more concern” was when the expert “assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court” (White Burgess, at para. 49).

109The Hearing Officer understood the “latitude” he had under the SPPA in accepting the assistance of a medical expert. He ultimately found Dr. Cook’s independence was undermined by a constellation of factors. He considered the fact Dr. Cook was the Director of the clinic the appellant attended and supervisor of the appellant’s physician, that he had previously authored a grant application on behalf of the appellant and signed a WSIB application as his physician. He also noted the lack of publications by Dr. Cook and the fact that Dr. Cook, in his testimony, presented as an advocate rather than an impartial witness. In the circumstances, it was open to the Hearing Officer to find that Dr. Cook was not sufficiently independent and did not qualify as an expert witness, and these findings are reasonable.

110Even if the Hearing Officer had erred in his assessment of Dr. Cook’s ability to testify as an expert, which we say he did not, any such error would not affect the result. Ultimately, while not accepting him as an expert witness, the Hearing Officer fully considered Dr. Cook’s testimony and his report of the appellant’s current conditions. The Hearing Officer found that, when considering the penalty factor of personal circumstances, the appellant’s current and deteriorating medical condition as detailed by Dr. Cook was mitigating. There is ample foundation for the Hearing Officer’s evaluation of Dr. Cook’s evidence, which the Commission finds reasonable, and no basis for the Commission to reweigh it.

No Failure to properly consider jurisprudence.

111The appellant asserts that the Hearing Officer failed to properly consider the authorities on penalty and “handpicks portions of the jurisprudence that suit his narrative.” We do not agree. As noted by the Hearing Officer in his reasons, he was provided 64 cases and, although he did not cite every case he stated, “I agree with the importance of consistency and have read all of the cases provided and paid particular attention to the areas outlined by the parties.”

112The Hearing Officer then devoted over ten pages of his reasons for penalty to reviewing and distinguishing the jurisprudence provided by the parties. In addition, in assessing the different dispositional factors, the Hearing Officer considered and distinguished prior cases, many of which the appellant claims the Hearing Officer did not consider in his reasons. With respect to the body of jurisprudence he considered the Hearing Officer concluded:

In reviewing the plethora of cases presented by the parties, it is evident to me that the range of dispositions open to me include dismissal and demotion, the dispositions outlined by the parties. The cases establish consistency considerations for me, as identified in Schofield. Additionally, many of the cases differed in facts from [the appellant], however, guidance identified from the Commission in some of the cases was impactful. I attempted to highlight those passages. I will keep these cases and others in mind as I contemplate the impact of consistency on the reasonableness of my disposition in Johnson.

113We do not find, as asserted by the appellant, that the Hearing Officer’s review was unbalanced, failed to make reasonable comparisons or erred in not detailing all cases presented by the appellant.

114While not reviewing every case, the Hearing Officer stated that he read them all, reviewed a broad selection, drew reasonable comparisons and also highlighted general principles arising from the jurisprudence. We find no error in the Hearing Officer’s consideration of the case law or his conclusion that dismissal was within the range of appropriate penalties.

Properly Applies Test for Dismissal

115We also do not agree that the Hearing Officer improperly applied the test for dismissal. The appellant submits that the Hearing Officer failed to explain why a penalty less than dismissal was not appropriate and failed to contextualize specific mitigating factors.

116Dismissing a police employee rids the employer of the burden of an employee who has shown that they are no longer fit to remain an employee: Re Trumbley et al and Fleming et al, 1986 CanLII 146 (ONCA). The Hearing Officer properly noted this in his reasons and conducted an extensive analysis of the evidence, submissions and case law, properly considering the appropriate range of penalty.

117As set out above, the Hearing Officer correctly cited the disposition factors set out in Krug, supra, and the principles that govern the decision of whether the ultimate sanction of dismissal is warranted per Williams, supra. The Hearing Officer did consider progressive discipline citing Galassi, supra, for the proposition that increasingly serious sanctions should be applied to correct the employee’s behaviour but the misconduct may be so serious that dismissal is warranted. He concluded that this case was one in which, “the misconducts are at the highest level of discipline, making progressive discipline potentially a moot point.”

118The Hearing Officer fully detailed why the seriousness of the misconduct, that included targeting a community member, abusing police resources and repetitive dishonesty, rendered it close to the highest level. He also set out why a lesser penalty was not appropriate: “In reviewing the evidence and mitigation in concert with the proposal of a demotion by [the appellant], I conclude that a demotion would not satisfy the Seriousness of the Misconduct, Public Interest, and the Damage to the Reputation of the Service if he was to remain.” This conclusion was reasonable and open to the Hearing Officer.

119We do not find that the Hearing Officer failed to assess mitigating factors. The Commission has reviewed the Hearing Officer’s full consideration of the various factors typically considered when determining penalty. There is no merit to the suggestion that the Hearing Officer neglected to consider specific mitigating factors such as the appellant’s PSA record, medical condition or his acknowledgement that he used the Service systems to search the public complainant’s son. The Hearing Officer specifically considered these and multiple other mitigating factors in his comprehensive reasons. The Hearing Officer ultimately concluded that the seriousness of the misconducts and the harm caused to the Service – a “fundamental breach” of the expectation of the community and the Service – outweighed the mitigating factors. The Commission finds no error.

No Failure to Consider Duty to Accommodate

120The appellant submits that the Hearing Officer failed to assess the respondent’s duty to accommodate the appellant by not examining how a demotion or forfeiture could address the misconducts. The appellant points to s. 47 of the PSA, explaining that the appellant’s illnesses “disable him from being able to perform the essential duties of his profession” and states that the respondent had a duty to accommodate the appellant’s disabilities up to the point of undue hardship pursuant to the Ontario Human Rights Code, R.S.O. 1990, c. H. 19.

121As the respondent points out, case law is clear that where an employee is requesting accommodation for a disability after engaging in misconduct, the employee must demonstrate that there was a nexus between the misconduct and the disability. The duty to accommodate does not require employers to pardon all misconduct, particularly when there is no medical evidence that the disability caused the misconduct: Mulholland v Peel Regional Police Service, 2014 ONCPC 19 para 57. Where a police officer claims they should be accommodated, rather than dismissed, in the face of misconduct, accommodation is relevant where “a form of disability is at the root of the improper conduct”: Ogg v. London Police Service, 2012 ONCPC 3 at para. 45. The OCPC has found that when considering whether disability is a relevant factor in mitigating misconduct during the penalty phase of a disciplinary hearing, the Hearing Officer should consider whether there is any link, connection, relationship or nexus between the disability and the misconduct: Welfare v. Peel Regional Police Service, 2018 ONCPC 15, 2018 ON CPC 15 at paras. 24-4; Orser v. Ontario Provincial Police, 2018 ON CPC at para. 29.

122Section 47 of the PSA which the appellant also cites, applies a scenario where an officer “becomes mentally or physically disabled and as a result is incapable of performing the essential duties of the position.” [Emphasis added.]

123Here, the Hearing Officer repeatedly found there was no nexus between the appellant’s medical issues and the misconducts and gave thorough reasons for doing so. We so no error in the manner in which the Hearing Officer treated the medical evidence or how he addressed the appellant’s disability, and as a result we see no error as alleged by the appellant in this regard.

Additional Alleged errors on penalty

124In addition to the above, the appellant alleges numerous other errors were made by the Hearing Officer when assessing disposition including:

• Failed to consider the appellant’s lack of motivation;
• Ignored a remedial approach that seeks to educate;
• Failed to give due consideration to the novel science of Lyme disease;
• Failed to consider evidence that the appellant ceased medical treatment to fund the discipline proceedings; and
• Failed to consider that there were no support letters from Service members because it was a small Service and a fear of reprisal.

125A number of these alleged errors are captured in our conclusion that the Hearing Officer’s consideration of the medical evidence and of the disposition factors was reasonable. Other alleged errors relate to inferences drawn by the Hearing Officer that he was entitled to make. The Commission has reviewed the Hearing Officer’s reasons related to penalty, including his assessment and weighing of the evidence and the penalty factors, and finds the Hearing Officer’s decision and reasons were reasonable. As previously stated, when deciding whether a decision is reasonable, the Commission does not conduct a line by line “treasure hunt” for errors: Vavilov, supra at para 102. In any event, none of the additional alleged errors, even if made, would indicate a clear error in principle or one sufficiently central to render the Hearing Officer’s decision unreasonable.

126The Commission has held repeatedly that “…in certain cases, one event, or one instance of a lack of judgment justifies termination”: Bovell and Toronto Police Service, 2012 ONCPC 10 at para 56. In this case, the appellant not only fabricated the traffic complaint but misused Service databases to concoct the false complaint, caused other departments of the Service to act on the complaint and perpetuated the falsehood throughout the investigative process. The Hearing Officer, who gave full consideration to the appellant’s ability to rehabilitate, particularly in light of the medical evidence, was nevertheless entitled to conclude the misconduct was so serious and the potential for damage to the Service’s reputation so great that dismissal was the only appropriate penalty. This is within the reasonable range of penalties, and the Commission is not entitled to interfere.

ORDER

127Pursuant to s. 87(8)(a) of the PSA, the Commission confirms the findings of guilt and the penalty imposed by the Hearing Officer.

Footnotes

1. 1This appeal was commenced pursuant to s. 87 of the now repealed PSA. The appeal is continued before the Commission pursuant to s. 216 of the Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1 (CSPA). As this matter was initiated prior to April 1, 2024, pursuant to s. 216(1) of the CSPA, 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. Other than s. 216, the CSPA does not apply to these proceedings.
2. 2With the coming into force of the CSPA the Office of the Independent Police Review Director is now called the Law Enforcement Complaints Agency, and the Independent Police Review Director is now called the Complaints Director (s.130).