COURT FILE NO.: 340/03

Toronto

DATE: 20050331

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

cunningham, ACJSC, matlow and ferrier, JJ.

in the matter of the allegation of misconduct against staff sergeant james daryl monaghan #6323, member of the toronto police service

and in the matter of a finding of misconduct in disciplinary proceedings pursuant to the provisions of section 64(10) of the police services act, r.s.o. 1990, c.p. 15, as amended

and in the matter of the penalty imposed upon staff sergeant james daryl monaghan #6323 pursuant to the provisions of section 68(1) of the police services act, r.s.o. 1990, c.p. 15, as amended

and in the matter of an appeal to the ontario civilian commission on police services pursuant to the provisions of section 70(1) of the police services act, r.s.o. 1990, c.p. 15, as amended

and in the matter of an appeal to the divisional court pursuant to the provisions of 71(1) of the police services act, r.s.o. c.p. 15, as amended

B E T W E E N:

JAMES DARRYL MONAGHAN

Appellant

• and -

TORONTO POLICE SERVICE

Respondent

Harry G. Black, for the Appellant

Michael Martosh, for the Respondent

HEARD: January 31, 2005

MATLOW J.

1Judgment is to issue allowing this appeal and setting aside the order of the Ontario Civilian Commission on Police Services dated May 1, 2003, dismissing the appeal of the appellant from his conviction of one count of discreditable conduct contrary to section 2 (1)(a)(xi) of the Code of Conduct contained in Regulation 123/98 pursuant to the Police Services Act, R.S.O. c. P.15, as amended (“the Act”), made by a hearing officer appointed under the Act on November 2, 2001. In its place a new order is to issue allowing the appeal from the conviction and setting it aside.

2Counsel may make written submissions regarding costs within 30 days. The submissions should be exchanged by counsel and sent in triplicate to the attention of the president of this panel.

3This appeal was brought pursuant to section 71(1) and (2) of the Act which reads as follows:

71. (1) A party to a hearing held by the Commission under subsection 65 (9) or 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.

4The formal charge against the appellant, a staff sergeant employed by the respondent, as contained in the notice of hearing is reads as follows:

“YOU ARE ALLEGED TO HAVE COMMITTED MISCONDUCT 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 POLICE FORCE, contrary to Section 2 (1)(a)(xi) of the Schedule Code of Conduct of Ontario Regulation 123/98 and therefore, contrary to Section 74 (1)(a) of the Police Services Act, R.S.O. 1990, as amended.

STATEMENT OF PARTICULARS:

Being a member of the Toronto Police Service, attached to Number 55 Division, you, while on duty, on Thursday, February 17, 2000, were assigned as the uniform Staff Sergeant of “E” Platoon.

Investigation has revealed that at approximately 11:20 a.m., you placed a telephone call to Police Constable Harbinder Gill, #5006, Number 55 Division. You asked Police Constable Gill to meet yourself and Sergeant Sean Brosnan, #2475 in the sergeant’s office. When Police Constable Gill arrived in the office you began to speak to him.

Investigation has revealed that you told Police Constable Gill that you could not understand why he wanted to return to “E” Platoon stating, “especially after all we had been through and I still harbour bad feelings about what happened”.

Police Constable Gill asked you if your statement indicated that you preferred that he not return to “E” Platoon. You stated, “well given the history we have, I gotta be honest and objective. I also don’t want my platoon to suffer and you know I took a hit and paid for the lawyer with my own money”.

You further commented about the nature of the allegations contained in the initial Racial Harassment Complaint made by Police Constable Gill. This caused Police Constable Gill to believe that an apology that had been given by you to him was now retracted and that your actions constituted a reprisal to the original complaint.

In so doing, your actions were such that they were likely to bring discredit upon the reputation of the Service.”

5Section 74 1 (a) of the Act reads as follows:

“A police officer is guilty of misconduct if he or she,

commits an offence described in a prescribed code of conduct.”

6That part of the Code of Conduct contained in Regulation 123/98, a prescribed code of conduct, applicable to this appeal reads as follows:

“2. (1) Any chief of police or other police officer commits misconduct if he or she engages in,

(a) Discreditable Conduct, in that he or she,

(xi) acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force.”

7Accordingly, the “misconduct” alleged was the commission of “discreditable conduct” as defined in the Code and, in these reasons, both terms are used to describe the alleged offence.

8Despite this broad wording of the charge, it is evident that the case against the appellant was not based on any evidence that he had acted “in a disorderly manner” or “in a manner prejudicial to discipline”. Rather, the case against the appellant was based solely on that part of the charge that alleged that he had acted “in a manner likely to bring discredit upon the reputation of the police force” and this appeal was confined in a similar manner.

9The appellant’s conduct which was the subject of this prosecution was his conduct during the course of a meeting between him and a constable which he arranged shortly before the scheduled return to work of the constable after an extended absence to the platoon in the Toronto Police Service of which the appellant was the commander.

10The circumstances of that meeting must be understood in reference to a previous confrontational event involving both the appellant and the constable. In December, 1998, the constable had filed a formal internal police human rights complaint against the appellant, who was also the constable’s platoon commander at that time, alleging that the appellant had made an offensive racial remark about him during parade. That complaint was resolved at the unit level and, as part of the resolution, the appellant lost sixteen hours of pay and was required to provide the constable with a personal apology and express his regret that any comment had given unintended offence. The appellant complied with that requirement.

11When the appellant became aware that the constable had been reassigned to his platoon, he decided to meet with the constable just prior to his return. That meeting occurred on February 17, 2000, in the presence of another police officer, Sean Brosnan.

12According to the constable’s evidence before the hearing officer, during the course of that meeting, the appellant advised him that:

a) he could not understand why the constable wanted to return to the platoon, especially after what the two of them had been through;

b) he still harboured bad feelings about what had happened between them;

c) he had been hurt by the allegations;

d) he had held discussions with the sergeants under his command, and that they too could not understand why the constable wished to return to the platoon;

e) the situation on the platoon had not changed much since the constable had left, in that the appellant's management style was still the same, he was still enforcing the lunch hours and overtime rules and running the platoon as he saw fit; and

f) he did not want the good functioning of the platoon to suffer as a result of their history.

13It appeared to the constable that the appellant was visibly angry during the meeting and the appellant’s words and conduct during the meeting offended the constable. He then concluded that the appellant’s apology, which had been offered to resolve the first complaint, had been insincere and that the appellant’s behaviour towards him during their meeting was a reprisal for the first complaint. The constable testified that it was clear from the appellant’s statements that the appellant did not want him to return to his platoon.

14In her reasons for decision, after reviewing some of the evidence and the submissions made by counsel, the hearing officer focused on what she considered to be the main issue in the case. She stated:

“The issue at point is whether the comments and actions of (the appellant) at a meeting on Feb 17, 2000 constituted a reprisal of the original complaint that was resolved October 13, 1999.”

15In her analysis of the evidence, she expressed the following conclusions:

a) that she believed that the appellant had the right to ensure that, prior to his return, the constable had a clear understanding of the platoon’s work standards and expectations;

b) that, “given that this is a case with a history and about perceptions, for the purpose of this trial, and in total fairness to (the appellant)”, she would accept his versions of events, recognizing that he had admitted that the “initial incident was not over”;

c) that “harassment is not about one’s intentions, it is about the affect of one’s words or actions” and that the appellant’s earlier apology to the constable was not sincere;

d) that she interpreted the appellant’s comments and actions as career limiting to the constable “and a reprisal from the original complaint”.

16She then concluded “that the prosecution has proved its case on clear and convincing evidence” and found the appellant “guilty of one count of discreditable conduct as described in the notice of hearing”.

17It is noteworthy that the hearing officer made no reference in her reasons for decision to the evidence of the appellant that his conversation with the constable was not a reprisal to the constable’s original complaint and that it was not done in retaliation. Rather, according to his evidence, it was his purpose in speaking with the constable was to obtain a clear understanding of why the constable chose to return to his platoon and to make sure the constable knew that the appellant’s management policies would continue as they had been before.

18The appellant’s denial that he had engaged in a reprisal against the constable was supported by Officer Brosnan whose evidence was that he “truly did not understand what was so wrong”. The hearing officer concluded that Brosnan “was a very credible witness who was honest, forthright, spoke his mind and did his utmost to assist the Tribunal to understand the atmosphere of the platoon at the time of the complaint and the meeting”.

19A reprisal is defined in The Concise Oxford Dictionary as “an act of retaliation” and retaliate is defined as “repay an injury, insult, etc. in kind: attack in return; make reprisals”. Therefore, in order for the appellant’s conduct to have amounted to a reprisal, it was necessary for the appellant to intend to get even with the constable for what the constable had done to him before and the statement made by the hearing officer set out above in paragraph 15 c) was wrong.

20This error led the hearing officer to fall into further error by reconciling her finding that the appellant’s “comments and actions” constituted a reprisal with her acceptance of the appellant’s evidence which included a denial of any reprisal. The record is clear that, rather than focus on the appellant’s intention at the time of the meeting with the constable to determine what his intention was, she ignored that and focused instead on the subjective impact of the appellant’s conduct on the constable. It was the appellant’s conduct that was the subject of the charge and not the constable’s perception. As well by making this error, she disregarded entirely the reasonable possibility that the constable might have responded to the appellant’s conduct in exactly the same manner even if it had not amounted to a reprisal.

21In doing so, she also ignored the fact that the appellant was not charged with committing a reprisal but with a clearly defined offence contained in the Code.

22Even though the hearing officer found that the appellant had engaged in disreputable conduct as alleged, her reasons for decision reveal no indication whatsoever that she considered whether it had been proven that the appellant’s conduct “was likely to bring discredit to the police force” which was an essential element of the alleged offence. For the purpose of this analysis I make no determination whether this element had to be proven in a literal way requiring evidence or in a notional way requiring the hearing officer only to apply some reasonable standard in predicting what the likely impact would be. However, in the circumstances disclosed by the evidence, on any reasonable interpretation of the law it is hard to imagine how the reputation of the police force would likely have been affected in the slightest by what had occurred between the appellant and the constable.

23The reasons for decision of the Tribunal of the Commission reveal that the Tribunal did not address any of the errors of the hearing officer referred to above.

24I turn now further to the hearing of the appellant’s appeal by the Tribunal and the decision of the Commission to dismiss it.

25In the concluding portion of the Tribunal’s reasons for decision headed “Decision”, the Tribunal stated that it did not believe that it was required to look only to the content of the conversation between the appellant and the constable “in determining whether or not the actions of Staff Sergeant Monaghan would have (emphasis added) brought discredit to the Toronto Police Service. Two paragraphs later the Tribunal rhetorically asked; “Could (emphasis added) such conduct bring discredit to the Toronto Police Service? In other words, would (emphasis added) a reasonable person knowing the circumstances find that this was disreputable?” The Tribunal then went on to answer both of these questions in the affirmative.

26Unfortunately, by analyzing the evidence by reference to these characterizations of the critical essential element of the offence alleged, the Tribunal lost sight that it was necessary for the prosecutor to prove that the appellant’s conduct would likely (emphasis added) bring discredit upon the police force and that it was not sufficient for the prosecutor to prove that it was only a possibility. By employing this language and applying the tests set out, the Tribunal fell into reversible error.

27As well, in the same portion of its reasons for decision, the Tribunal stated that “we accept the conclusion of the Hearing Officer that (the constable) could reasonably believe (emphasis added) that he was being subjected to a reprisal for his first complaint and an implied retraction of the apology he had received. In the circumstances the Hearing Officer found that apology to be “hollow” and we agree with this characterization.” The Tribunal then went on to uphold the appellant’s conviction at least in part on the basis of the constable’s subjective response to the appellant’s conduct just as the hearing officer had done.

28Based on my analysis of the entirety of the Tribunal’s reasons for decision, I am persuaded that the Tribunal failed to review the proceeding before the hearing officer with a correct understanding of the essential elements of the alleged offence. The appellant was not charged with rude or overbearing conduct or even with merely engaging in an unfriendly or angry confrontation with the constable. The particulars set out in the notice of hearing had to be considered in light of the substantive allegation in the opening lines of the notice of hearing and the essential elements of the offence alleged and the Tribunal, like the hearing officer earlier, failed to do so. Instead, it focused on peripheral issues such as whether or not there had been a reprisal.

29There can be no doubt that the meeting between the appellant and the constable was arranged by the appellant as a result of the earlier confrontation they had had and, to that extent, the meeting was a consequence of that confrontation and directly related to it. However, just because the appellant’s conduct was a consequence of and directly related to it does not necessarily mean that it was a reprisal as the Tribunal, like the hearing officer earlier, held. As well, just because the constable found the appellant’s conduct during the meeting to be a reprisal does not mean that it was. And, even if it was, it does not follow that that kind of reprisal was necessarily sufficient to elevate it to conduct “likely to bring discredit upon the reputation of the police force.”

30For all of these reasons, the Commission’s decision cannot be upheld. It reflects reversible errors that fall within our jurisdiction to interfere. In the circumstances, I would not order that a new hearing be conducted before another hearing officer. The record persuades me that, having regard to the relatively minor nature of this charge, the apparent weakness of the case against the appellant and the impact that these proceedings have likely had on the appellant and the constable over the past five years, this prosecution should now come to an end. It would be contrary to the broad public interest and that of the persons involved to order that a new hearing be held.

31I turn, finally, to the principal issue raised on this appeal by counsel for the appellant, namely, that the failure of the hearing officer to disclose that, prior to the hearing before her, she had accepted a position of employment with the Commission and would be leaving the Toronto Police Service shortly thereafter would inevitably raise issues about the ability of the Commission to hear any appeal by the appellant.

32In its reasons for decision, the Commission addressed this issue at length and observed that the hearing officer had become an employee of the Commission and not an appointed member and that she had no decision-making powers in disciplinary appeals. The Commission then applied the correct legal test for determining reasonable apprehension of bias based on the view of an informed person, viewing the matter realistically and practically, and concluded that there was no merit to this ground of appeal. I agree with the Commission’s conclusion for the reasons which it gave. There is no merit in this ground of appeal.

­­­­­­­­______________________________

Matlow J.

Cunningham ACJSC.

Ferrrier J.

Released: March 31 , 2005

COURT FILE NO.: 340/03

Toronto

DATE: 20050331

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

cunningham, acjsc, matlow and ferrier, jj.