DIVISIONAL COURT FILE NO.: 620/02

DATE: 20031202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, THEN JJ. AND BENOTTO S.J.

B E T W E E N:

ONTARIO PROVINCIAL POLICE

Appellant

• and -

A.L. FAVRETTO

Respondent

Ted Carlton for the Appellant

David W. Scott, Q.C. for the Respondent

HEARD at Toronto: July 23, 2003

THE COURT

1The Ontario Provincial Police (OPP), under s. 71 of the Police Services Act, R.S.O. 1990, c. P. 15 (PSA), appeals to this Court from the order of the Ontario Civilian Commission on Police Services (Commission) with regard to the penalty imposed upon the Respondent and asks that the penalty imposed by the Hearing Officer be reinstated. The PSA sets out the Court’s jurisdiction on this appeal:

71. (1) A party to a hearing under section 70 may appeal the Commission’s decision to the Divisional Court within 30 days of receiving notice of the Commission’s decision.

(2) An appeal may be made on a question that is not a question of fact alone, from a penalty imposed or from any other action taken, or all of them.

FACTS

2On April 16, 1996, Constable Favretto, a member of the OPP, was sitting at his desk at the Still River Detachment (Exhibit Book, Tab 7). He was completing an incident report. His partner, Constable Foster, was sitting at his desk opposite Constable Favretto. Foster asked Favretto several times if he wanted to go out for coffee. Favretto wanted to complete the report. Foster picked up his baton and “started joking around”. He was using the baton “in a fencing manner as you see fencers do”.

3Favretto then removed his semi-automatic service pistol from his holster and pointed it at Foster’s left shoulder. The gun was loaded. Favretto was holding his pistol in his right hand with his finger on the trigger. Foster let go of the baton and put both of his hands up in the air with palms open. Foster backed his way to his desk, while facing Favretto, and sat down. The pistol remained trained on Foster as he moved back to his desk. As Foster was seated, Favretto re-holstered his pistol and returned to his report. Foster and Favretto left in the same vehicle about ten (10) minutes later to go for coffee. En route, Favretto apologized to Foster saying “I’m sorry for drawing my gun on you, but you pissed me off”.

4The incident was reported. Constable Favretto was charged under the PSA.

5A Notice of Hearing, issued on September 24, 1996, was served on the Officer on October 1, 1996. The Notice of Hearing said, in part:

YOU STAND CHARGED WITH DISCREDITABLE CONDUCT

IN THAT YOU DID act in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ontario Provincial Police, contrary to Section 1(a)(i) of the Code of Conduct contained in Regulation 927 of the Revised Regulations of Ontario 1990, as amended.

PARTICULARS OF ALLEGATIONS:

On Sunday, April 21, 1996, at approximately 1700 hours, while on duty at the Still River Detachment of the Ontario Provincial Police, you drew a Sig-Sauer P229 semi-automatic pistol from your holster and, with your finger on the pistol trigger, and without lawful authority, pointed the pistol directly at Provincial Constable W.L. Foster.

6The Hearing Officer, OPP Superintendent R.J. Fitches (retired), appointed by the Commissioner of the OPP under s. 76(11) of the PSA, conducted a hearing under s. 64(7) of the PSA. On July 27, 2000, the Hearing Officer found Constable Favretto guilty of discreditable conduct. On October 26, 2000, the Hearing Officer imposed a penalty of dismissal in seven (7) days unless the Respondent resigned before that time.

7Favretto appealed the finding of guilt and penalty to the Commission under the provisions of s. 70 of the PSA:

70. (1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsection 64(7) or 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

(6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be.

The Commission dismissed the appeal on the finding of guilt but allowed the appeal on penalty. The Commission imposed on Constable Favretto a demotion to Third Class Constable for two (2) years before returning him to the rank of First Class Constable. The OPP appeals to this Court from the penalty imposed by the Commission.

ANALYSIS

8We have reviewed: (1) Pezim v. B.C. (Superintendent of Brokers), 114 D.L.R. (4th) 385 (S.C.C.); (2) Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) 193 (S.C.C.); (3) Law Society of New Brunswick v. Ryan (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.); (4) Dr. Q. v. College of Physicians and Surgeons of British Columbia (2003), 2003 SCC 19, 223 D.L.R. (4th) 599 (S.C.C.). It is our conclusion that, following the principles set out in those four (4) cases, the standard of review that this Court should apply to the penalty imposed by the Commission is one of “reasonableness simpliciter”.

9The Commission found that the Hearing Officer erred: (1) in not considering the prospects of rehabilitation; (2) in not properly taking into account provocation; and, (3) in not properly considering the consistency of penalty with other police discipline cases.

Rehabilitation

10Counsel for the Respondent police officer argues that the Commission’s decision was reasonable in that it correctly overturned the Hearing Officer. It is argued that the Hearing Officer’s primary error was to approach the penalty issue on the basis that pointing a firearm must lead to a dismissal and thus it was not necessary to consider rehabilitation. The Respondent argues that by not considering rehabilitation, the Hearing Officer committed reversible error.

11We have been referred to Tran v. Osterhoos 1 P.L.R. (414) as authority for the proposition that drawing a firearm without lawful authority does not necessarily lead to dismissal. In that case, the Officer who drew his firearm was in the line of duty at the time. Here, the Officer drew and pointed his revolver at his partner in their office. We recognize that the Tran case involved a member of the public and as such a high duty of propriety must attach to the Officer. However, we agree with these excerpts from the Hearing Officer’s assessment of Favretto’s conduct:

p. 10:

Try as I might, I cannot interpret Provincial Constable Favretto’s behaviour as anything less than totally and completely unacceptable. If Provincial Constable Favretto were to remain a member of the Ontario Provincial Police, I would be forever concerned that if he were to find himself in a situation that taxed him emotionally or psychologically, he may react in a similar fashion. . . .

p. 11:

I must confess that I never imagined a situation in which I would have to terminate the services of a good and decent person who appears to have a truly earnest desire to serve the people of this province as a police officer. Unfortunately, that is precisely the situation in which I find myself, however. I cannot overstate that this disposition is not taken with a view to punish or discipline the officer. . . .

p. 11:

Provincial Constable Favretto’s behaviour has demonstrated very clearly to me that despite all of his extremely good and admirable qualities, the Ontario Provincial Police cannot safely retain his services as a Provincial Constable. It pains me to have to deal with this matter in this way, but given the need for police officers to carry loaded firearm, [sic] and given the ever-present danger of extreme volatility in performing their daily duties, I cannot proceed otherwise where the safety of the public or of any other members of this or any other police service may be in any jeopardy whatsoever, I simply cannot shirk my responsibility.

12The Commission focused its decision on the issue of rehabilitation. In the Commission’s view, the “key question” which needed to be considered was whether or not Constable Favretto “can” be rehabilitated. In our view, in light of the seriousness of the actions and the potentially lethal force, this was an unreasonable approach. The Hearing Officer did consider rehabilitation. However, he approached the issue not on the basis of whether Constable Favretto could be rehabilitated and return to work but whether he should return to work. The Hearing Officer considered the risk to society of an unsuccessful rehabilitation. He referred to the fact that the “potential results of unsuccessful rehabilitation or reform are too frightening to contemplate”. Thus, for the Hearing Officer, rehabilitation was not the controlling factor. Constable Favretto did not testify before the Hearing Officer nor before the Commission, nevertheless, the Commission, in its reasons, at page 16, said:

The Commission also noted Constable Favretto’s presence at the appeal hearing and his demeanor indicated he was sincerely remorseful for his actions.

13In our view, there can be a single act committed that is so serious that rehabilitation would not be the controlling factor. In Nothing and Ontario Provincial Police (1996), 3 O.P.R. 1081 (O.C.C.P.S.), the officer was dismissed for pointing his firearm at his partner. In Nothing, the Commission was “of the view that in certain cases one event, or one instance of lack of judgment justifies termination”. At p. 1085, the Commission stated:

The public places great value on an orderly state and empowers the police to infringe upon individual rights and freedoms in order to ensure observance of laws by the public. The ultimate symbol of the power invested in officers is license to carry legal firearms. Officer Nothing treated his firearm in a careless and dangerous fashion, under the influence of alcohol and in the presence of a member of the public. This is a clear abuse of power vested in him and in direct contravention of the rules respecting the use and handling of firearms, the necessity to uphold the image of the police service and indeed common sense.

14The seriousness of pointing a loaded firearm at a fellow officer in the midst of a normal workday cannot be overstated. Officers are trained not to point their guns unless they intend to shoot. The directive given to police officers during their firearms training states:

Firearms Safety Rules (Exhibit Book, p. 49 and p. 52):

1. A firearm shall never be pointed at any person unless you intend to shoot that person

2. Keep your finger off the trigger until the sights are on the target and you intend to shoot.

15We agree with the approach of the Hearing Officer that some actions are so serious that they go to the fundamental ability of a police officer to carry out his/her duties. Such situations take the emphasis away from rehabilitation in favour of protection of the public.

Provocation

16Counsel for Constable Favretto argued that the Hearing Officer did not properly consider provocation.

17On the contrary, the Hearing Officer stated:

p. 7

In the case before me I cannot ignore the actions by the officer, no matter what the suggested provocation. When examining the evidence before me, it appears that Provincial Constable Favretto was provoked by the unfriendly, antagonistic behaviour of his co-workers. His reaction, however, went far beyond what could conceivably be considered acceptable.

18Provocation in this sense is not the legal “defence” but the factual human reaction involved in responding to a difficult situation.

19It is suggested that the Hearing Officer did not adequately understand the nature of the work environment. However, the Hearing Officer stated:

p. 8:

Provincial Constable Favretto’s response to his unpleasant work environment went beyond the pale. For someone to consider, let alone act upon the notion of employing potentially lethal force in such a situation is beyond my comprehension. Because of the seriousness of Provincial Constable Favretto’s behaviour, the distance between what he did and what may have been acceptable is simply too far for me to consider rehabilitation or reform. The potential results of unsuccessful rehabilitation or reform are too frightening to contemplate.

p. 4:

I am convinced that Provincial Constable Favretto’s behaviour was a direct result of his perception of his environment – that being non-supportive and at least to a degree, hostile.

20In the Hearing Officer’s view:

p. 5:

Provincial Constable Favretto reacted to a very unpleasant work situation in a most chilling fashion. He drew his fully loaded semi-automatic service pistol, placed his finger on the trigger, pointed it directly at a co-worker and maintained his aim as his weapon followed his co-worker a short distance around the room

p. 6:

No matter what the cause, it is more than intolerable that a sworn member of any police service draws and aims a weapon at anyone, at any time, at any place without just cause. Considering the potential for death or serious injury, such behaviour is at the apex of impropriety.

Thus, in our view, this issue was properly considered by the Hearing Officer.

Consistency with other Discipline Cases

21The Hearing Officer reviewed two (2) cases before concluding that dismissal was appropriate. There is authority stating that one single act can be so egregious as to warrant dismissal. The penalty is squarely within the framework established in those cases (see: Harwood and O.P.P. (1996), 3 O.P.R. 1086 and Nothing and O.P.P. (1996), 3 O.P.R. 1081).

22We agree with the conclusions of the Hearing Officer, a retired superintendent of the O.P.P., when he stated:

Provincial Constable Favretto’s behaviour is such that he has demonstrated he is unsuitable to continue in the role of a police officer. . . .

…when an officer’s behaviour clearly illustrates that he or she can no longer operate as a member of a police service, there is no alternative but dismissal. Regrettably, such is the case before me.

…Good judgment and level-headedness are qualities that an officer must possess.

23The words of the Hearing Officer are those of a retired member of the O.P.P. He viewed the actions of Constable Favretto, a member of the same force, as “chilling”, as “intolerable” and “at the apex of impropriety”. If that be so, in the public interest, it would not be safe for “civilians” to view Constable Favretto’s conduct in any other light.

Notwithstanding the wide scope given to the Commission under s. 70(1) of the PSA, we are unanimously of the view that the decision of the Commission to substitute temporary demotion in the place of dismissal, in all the circumstances of this case, does not meet the standard of “reasonableness simpliciter”.

24The appeal is allowed and the penalty imposed by the Hearing Officer of dismissal, unless the Respondent resigns within seven days, is reinstated.

25If the parties cannot agree on costs, they may exchange and send written submissions within fifteen (15) days from the date of release of these reasons.

O’DRISCOLL J.

­­­­­­_______________________

THEN J.

BENOTTO S.J.

Released:

DIVISIONAL COURT FIE NO.: 620/02

DATE: 20031202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, then jj. and benotto s.j.