COURT FILE NO.: 535/03

DATE: 20050608

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, CAPUTO and sWINTON JJ.

B E T W E E N:

POLICE CONSTABLE CRAIG GALASSI

Appellant

• and -

HAMILTON POLICE SERVICE

Respondent

Harry G. Black, Q.C. and Joanne Mulcahy, for the Appellant

Steven M. Boorne, for the Respondent

HEARD at Toronto: March 18 and April 20, 2005

SWINTON J.:

1Police Constable Craig Galassi appeals pursuant to s. 71(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended, from the decision of the Ontario Civilian Commission on Police Services (“the Commission”) dated September 3, 2003, which dismissed an appeal from the penalty imposed and one of the findings of discreditable conduct made by a Hearing Officer designated by the Chief of the Hamilton Police Service. The issue in this appeal is whether the Commission acted unreasonably in upholding the determinations of the Hearing Officer.

Background Facts

2The Appellant, Constable Galassi, has been a member of the Hamilton Police Service since 1981. On June 14, 2001, he pleaded guilty to a criminal charge of careless use of a firearm, and he received a suspended sentence with twelve months probation. The following facts were agreed upon by his counsel and the prosecutor to form the basis for the count on which he pled guilty, and they were set out by the prosecutor at the criminal trial.

In February 2000 in the parade room at Station 20 of the Hamilton-Wentworth Regional Police Station, the accused while on duty was observed sitting at a table loading bullets into the magazine of his pistol. As he was loading the magazine, he was looking at individual officers and was heard to be uttering their names with each bullet. One officer in particular, Officer Larkin, heard his name being referred to. And, although he took the matter as a joke at the time, later expressed concern about the matter.

In November 1997 a Constable Lloyd and Constable Galassi were sitting in the report room outside of the custody area of Station 20. Lloyd made a comment to Galassi and immediately felt a sharp pressure in his back causing him to go forward. And as he turned back he saw Galassi putting his pistol back in his holster.

Between 1997 and 1998 Jason Lloyd was sitting in the report room at again the new Station 20, again at Station 20. Galassi walked up to Lloyd and pointed his pistol at Lloyd’s groin and made a joking remark.

In 1998 Constable Kazprzyk … was in the change room of Station 20 changing for his shift. Constable Galassi pushed the barrel of his pistol into the back of Kazprzyk’s neck. Kazprzyk expressed displeasure about that because of a safety issue and mentioned to him a fatal incident where there was an accidental discharge of a service weapon in Niagara region a few months before.

In respect of that matter, it’s my understanding the accused takes the position it was a clip from his gun, and not the barrel of his gun that was placed in the officer’s back. And I take the position that either of those are careless use of a firearm, and it’s not worthy of a trial of an issue.

The following day Constable Kazprzyk was again in the change room. He was again changing his shift, and the accused again put a pistol in his back. Kazprzyk again expressed his displeasure. And again the accused says that that was a clip. And I take the same position.

In 1998 Constable Larkin, who was the one that I referred to in the first charge, was in the report writing room at the station where Mr. Galassi unholstered his pistol and pointed it at Larkin. Galassi looked around before doing this.

Again in 1998 within two months of the previous incident while in the station report writing room, Constable Larkin was with Galassi. Galassi commented that people won’t flinch if a person was to shoot an elastic – or people will flinch if a person was to shoot an elastic band at them but won’t if you point a gun at them. With that, he took his gun out and pointed it at Larkin. Larkin took it as a joke. And, there is no suggestion that his finger was on the trigger when he pointed it.

In 1998 Constable Charlene Moses was in the custody area at Station 20 with Constable Galassi. She and Galassi were talking about the value of Kevlar body armour vests. After the conversation, Constable Moses felt something pushing against the back of her body armour. She turned and saw Galassi with his gun in her back. He commented to Moses if she wondered whether the vest would work and then holstered his pistol.

In November of ’98, a Constable Joanne Serkeyn … was seated in the report writing room at the station. Galassi was observed standing in the entrance to the room. He was joking something in relation to his pistol. He took his pistol out of his holster, threw it on the floor, it slid ten or twelve feet. She was afraid it might go off. She hid behind a desk and then left the room.

(Transcript, Vol. 1, pp. 9-15)

3On June 25, 2001, the Appellant was charged with discreditable conduct under the Police Services Act (“the Act”). The Notice of Hearing stated that he was alleged to have committed misconduct in that he “on or about June 14, 2001, while a sworn member of the Hamilton Police Service, acted in a manner likely to bring discredit upon the reputation of the Police Service by being found guilty of an indictable criminal offence or a criminal offence punishable upon summary conviction…”.

4A hearing under the Act commenced on October 22, 2001. The Appellant pleaded guilty to one count of discreditable conduct - having been found guilty of one count of careless handling of a firearm on June 14, 2001. The Hearing Officer then proceeded to determine two other counts of discreditable conduct and concluded on September 26, 2002 that the Appellant was guilty of these two counts – namely, having shown a scrotum ring to a female officer while on duty in the police station (Count 1) and having placed a dead cat on another officer’s truck (Count 2).

5The Hearing Officer then held a further hearing with respect to penalty. On January 31, 2003, he delivered lengthy reasons in which he determined that on Count 3, the charge relating to the criminal conviction for careless use of a firearm, Constable Galassi should be required to resign, and in default of resignation within seven days, he should be dismissed pursuant to s. 68(1)(b) of the Act. With respect to the two other counts, he ordered forfeiture of 16 hours pay on each count, to be served concurrently.

The Decision of the Commission

6An appeal was taken to the Commission pursuant to s. 70(1) of the Act. The Commission overturned the decision with respect to Count 2, but upheld the decision on the merits and the penalty for Count 1 and upheld the penalty with respect to Count 3.

7The Commission stated that its role, in an appeal from a conviction by a Hearing Officer, was to determine if there had been a manifest error in principle. It observed that findings of fact and determinations of credibility were entitled to great deference.

8With respect to Count 1, the Commission concluded that there was an evidentiary foundation for the decision, and that it was within the discretion of the Hearing Officer to conclude that the conduct would bring discredit on the reputation of the police service. However, the conviction on Count 2 was overturned because of the Hearing Officer’s failure to consider that the matter had been informally resolved.

9With respect to penalty, the Commission held that it must not intervene unless there was a manifest error in principle, or the Hearing Officer ignored relevant factors in assessing penalty. As well, it must consider whether the penalty was in the appropriate range for the offence.

10The Commission concluded that the Hearing Officer had reviewed the factors that he must consider and that he had made a detailed analysis of the evidence before him. The Commission then went on to say,

There is no dispute that the 9 separate incidents involving the firearm or parts thereof were serious, recurring, unprovoked, and wilful. Counsel for the appellant properly acknowledges that these are serious matters indeed.

The Commission then stated that the important question was whether the Appellant could be rehabilitated as a police officer or, in its words (at p. 6), “Can he still be a useful member of HWPS given what has transpired?”

11The Commission clearly placed much emphasis on the seriousness of the careless use of the firearm, stating (at p. 6),

We must look to police officers to set the standard. If they are cavalier with guns, what can we expect of citizens? Constable Galassi received extensive firearms training, all of which clearly made him aware that these 9 separate incidents with his firearm were not only wrong, but potentially deadly. Not one officer who testified came to the defense of Constable Galassi’s ultimate actions. While some charitably indicated they thought he was joking, none would commend or condone his actions.

Clearly there are cases where the acceptable range of penalty would include dismissal for even one isolated incident of gunplay (Nothing). Here we have not one, but 9 separate incidents.

The Hearing Officer was within the acceptable range of penalty open to him when he imposed the penalty of resignation or dismissal within 7 days of default of resignation. He based this on very strong evidentiary foundation, his reasoning was sound, and he committed no error in principle.

Therefore, the appeal was dismissed.

The Standard of Review on Appeal

12An appeal lies to the Divisional Court from the Commission’s decision pursuant to s. 71 of the Act. On such an appeal, the standard of review is reasonableness (Ontario Provincial Police Force v. Favretto, 2004 34173 (ON CA), [2004] O.J. No. 4248 (C.A.) at para. 50).

13In Favretto, the Court of Appeal set out the role of the Divisional Court in an appeal from the penalty imposed by the Commission as follows (at para. 50):

In my view, given that the Divisional Court agreed that the appropriate standard of review on such an appeal was one of reasonableness, the proper approach for the Divisional Court would have been for it to review the decision of the Commission to determine if it was reasonable. This would require the court to determine if the Commission properly considered all relevant factors in determining the appropriate penalty, including the opinion and reasons of the Hearing Officer who also has expertise in these matters.

The task of this Court is to examine the reasons of the Commission and to determine whether, on a “probing examination”, the reasons, taken as a whole, are tenable to support the decision (at para. 55).

Issues on Appeal

14The Appellant argues that the Commission acted unreasonably in upholding the penalty decision, given that the Hearing Officer ignored relevant evidence, misapprehended evidence, improperly used his own experience as evidence, failed to consider relevant factors for the assessment of a penalty, applied an incorrect test in determining whether dismissal was an appropriate penalty, and imposed a penalty outside the acceptable range. The Appellant also relied on the written submissions in his factum to argue that the decision of the Commission on Count 1 should be set aside.

Analysis

The Penalty Appeal

15The Appellant pleaded guilty to Count 3, the fact of his conviction for a criminal offence. The conduct leading to that conviction involved nine separate incidents in which he misused his police firearm, and he did so without provocation. In three of those incidents, he directly pointed a firearm at another officer, and on four other occasions, he pushed an ammunition clip into the back or neck of another officer.

16His counsel has characterized the conduct as a joke, and the Appellant gave evidence that he was part of a subculture of officers in the Hamilton Police Service who engaged in horseplay with guns. He acknowledged that the conduct was serious, but argued that the penalty was too severe, and that the Hearing Officer made a number of errors in coming to his determination. Therefore, he argued, the Commission acted unreasonably in upholding the decision.

17The Hearing Officer gave extensive reasons, in which he discussed the penalty factors that he considered to be relevant. The Appellant argued that the Commission did not apply the correct approach to a review of the penalty decision made by the Hearing Officer. According to Favretto, supra, the Commission is to ensure that the relevant factors in assessing penalty have been considered and appropriately weighed in a fair and impartial manner, and the Commission is to vary a penalty that is unreasonable or that would amount to an injustice (at paras. 33 and 34). In my view, the Commission did not cast its role too narrowly. It reviewed the reasons of the Hearing Officer and examined whether he had considered the relevant factors and imposed a penalty within the acceptable range.

18Nevertheless, the Appellant argues that the Hearing Officer’s reasons were deficient in a number of ways, and therefore, the Commission’s decision to uphold the penalty was unreasonable. It is the task of this Court to review the decision of the Commission to determine whether it was reasonable. Of necessity, that requires us, as well, to consider the reasons of the Hearing Officer.

19In reviewing the reasons of a lay tribunal, the task of this Court is not to be overly critical of the language used, nor is it to focus on mistakes that do not affect the decision as a whole (Re Del Core and Ontario College of Pharmacists (1985), 1985 119 (ON CA), 51 O.R. (2d) 1 (Ont. C.A.)). This approach must be kept in mind when the reasons of the Hearing Officer are examined, as he is not legally trained.

20It is evident that the Hearing Officer placed great weight on the seriousness of the misconduct as an aggravating factor. He made reference to the number of incidents of both pointing a firearm and using the magazine of the firearm. He concluded that there had been no provocation, and that the acts were all deliberate.

21However, the Hearing Officer went on to consider other factors affecting penalty. The Appellant’s plea of guilty to the charge was a mitigating factor. However, after commenting on the lack of an apology and characterizing the Appellant’s response as “more regret than remorse”, the Hearing Officer gave the guilty plea little weight.

22The Hearing Officer also considered the Appellant’s employment record, and took into account performance reviews, noting concerns about his amount of sick leave and the low level of his traffic enforcement. However, the Hearing Officer also took note of the numerous commendations and expressions of appreciation as mitigating factors.

23The Hearing Officer also commented that the employment record was not clear, given that there were four previous Police Services Act convictions on October 16, 2000: discreditable conduct, insubordination, corrupt practice and neglect of duty. These convictions were the result of off duty conduct in August, 1999 which involved a former girl friend. The Hearing Officer treated these “previous convictions” as an aggravating factor and stated that principles of “progressive discipline” apply.

24He also considered rehabilitation, and made reference to 18 character witnesses who testified on behalf of the Appellant, saying that their support provided some mitigation. He then went on to consider the impact on the general public, concluding that there had been damage to the reputation of the Hamilton Police Service. He also made reference to the need for general deterrence to other police officers.

25As well, he found that there was no disability affecting the Appellant, nor did he find that there was inconsistency in the way in which management treated this case and other comparable incidents. Finally, he compared the penalties in three cases cited to him (Favretto and O.P.P., supra; Nothing and O.P.P. (1996), 2 O.P.R. 1081 (O.C.C.P.S.) and Harwood and O.P.P. (1996), 2 O.P.R. 1086 (O.C.C.P.S.)), and he found them distinguishable.

26The Hearing Officer concluded (at p. 34 of his reasons):

I have taken the opportunity to review factors that would influence my decision with respect to disposition in this matter. I have looked at the public interest, the seriousness of the offence, provocation, the accused officer’s recognition of the misconduct, the effect of his pleading guilty, the employment history, progressive discipline, the ability to rehabilitate the police officer, the need for deterrence, the damage to the reputation of the police service, officer’s personal handicap (if any), management’s approach to the misconduct, and reviewing police related cases to be consistent with the penalty.

He went on to say, “In cases where the main issue is generally the suitability of the member continuing a career in policing, then dismissal has to be an option”. Finally, he concluded on p. 35, “The actions of Constable Craig Galassi from 1997 until 2000 have made it impossible for him to continue his career as a police officer.”

27The Appellant argues that the Hearing Officer erred on a number of grounds. First, he argues that the Hearing Officer used the wrong test in determining whether dismissal was appropriate, pointing to a passage in the reasons where he states that the Appellant’s conduct “fell far below the minimal acceptable standards demanded by the Hamilton Police Service and the expectations of the citizens of Hamilton” (at p. 35). The Appellant argues that the appropriate test is whether the individual can no longer perform the function of a police officer, and submits that the Hearing Officer failed to consider the Appellant’s usefulness to the Police Service and the community, given his prior record and reputation.

28However, when one reads the reasons of the Hearing Officer as a whole, as well as the reasons of the Commission, it is clear that they applied the correct test. Both were concerned about the ongoing suitability of the Appellant to be a police officer, given his past conduct, the surrounding circumstances, and his prospects at rehabilitation. The Commission specifically asked whether his usefulness as a police officer had been annulled, while the words of the Hearing Officer show that he was concerned about the Appellant’s ongoing suitability to be a police officer.

29Counsel for the Appellant also argued that the Hearing Officer inappropriately made reference to his own experience with respect to the impropriety and gravity of what the Appellant had done. However, there was ample evidence before the Hearing Officer which supported his conclusion about the seriousness of this misconduct. The Appellant himself admitted in cross-examination that he knew his acts were contrary to his firearms training. Specifically, he agreed that he had been trained never to point his firearm, whether loaded or not, at another person unless his life or the life of another was in danger. He also admitted that he was familiar with s. 9 of Regulation 926 under the Police Services Act, which states,

A member of a police force shall not draw a handgun or discharge a firearm unless he or she believes on reasonable grounds that to do so is necessary to protect against loss of life or serious bodily harm.

(Transcript, Volume 11, pp. 27-31)

30Moreover, while the Hearing Officer made reference to his own experience with respect to the impropriety of throwing the gun across the floor, there was evidence, as well, from Staff Sergeant Kinsella that this was not part of accepted training, nor was it appropriate behaviour.

31The Appellant also argues that the Hearing Officer erred in his consideration of the factors relevant to the imposition of a penalty. In particular, he held a mistaken understanding of progressive discipline here, as he treated offences that occurred after the misconduct with the firearm as if they were prior offences. In the decision of Constable Juan Blowes-Aybar (unreported, March 7, 2003), the Commission held that the Hearing Officer made an error in principle when, in determining the appropriate penalty, she considered misconduct that occurred after the offence.

32The Hearing Officer treated the 2000 convictions for discreditable conduct as prior convictions. He did not address the fact that the misconduct which led to those 2000 convictions occurred in 1999, after all but one of the firearm incidents had taken place. In my view, the Hearing Officer erred in speaking of “progressive discipline” in this case. In a system of progressive discipline, an employer applies increasingly serious sanctions to employee misconduct in an effort to correct the employee’s behaviour. Nevertheless, even in such a system, the particular misconduct of an employee may be so serious that dismissal is warranted, despite the absence of prior warnings or disciplinary action.

33While the Hearing Officer was in error in speaking of progressive discipline here, this does not bring into question the reasonableness of his decision on penalty. Employment history is a relevant factor to consider, as the Commission stated in its reasons. Therefore, it was appropriate for the Hearing Officer to consider the whole disciplinary record in determining the penalty, as that forms part of the Appellant’s employment history.

34It is important to keep in mind that the police discipline process is not a criminal proceeding, but is rather an employment process. In Burnham v. Metropolitan Toronto Police Association, 1987 42 (SCC), [1987] 2 S.C.R. 572, the Supreme Court of Canada adopted the following passage from the reasons of Morden J.A. in the Court of Appeal,

In my view, a Police Act discipline proceeding is not a criminal or penal proceeding within the purview of s. 11 [of the Canadian Charter of Rights and Freedoms]…. A police discipline matter is a purely administrative internal process … The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform or, possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.

35In determining the suitability of an individual to continue as a police officer, it was reasonable for the Hearing Officer to consider the Appellant’s whole employment record, including performance evaluations and disciplinary record, even if the conduct giving rise to the discipline occurred after the conduct which led to the current proceeding. This was not a case where the Hearing Officer erred by increasing a penalty on the erroneous belief that it was a second offence, as in Blowes-Aybar. Rather, the 2000 convictions for discreditable conduct, insubordination, corrupt practice and neglect of duty were a factor to consider in determining the possibility of rehabilitation and the suitability for continued employment with the Police Service. What the Hearing Officer did was comparable to what the Supreme Court of Canada found to be appropriate in Toronto Board of Education v. Ontario Secondary School Teachers’ Federation, District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487. There, the majority held that an arbitration board had erred in failing to consider misconduct after dismissal which shed light on the reasonableness of the original dismissal (at para. 74).

36The Appellant also argues that the Hearing Officer failed to give sufficient weight to the guilty plea and the remorse shown. However, given that the Hearing Officer heard the Appellant’s testimony, he was in the best position to assess the degree of remorse and the weight that it should be given.

37The Hearing Officer considered and weighed the relevant factors, including the gravity of a police officer misusing a firearm, the number of incidents, general deterrence, rehabilitation, remorse, and the overall employment record. He reasonably put great weight on the gravity of the misconduct, which was contrary to the Appellant’s training and the law. Moreover, in these incidents of careless use of a firearm, the Appellant wilfully engaged in serious misconduct. While the Appellant argues that he was just joking with an unloaded gun, and that the conduct with the ammunition clip was not a dangerous use of a firearm, the Hearing Officer quite reasonably rejected these propositions. Moreover, while the Appellant takes issue with the characterization of the ammunition clip incidents as “psychological warfare”, that was a conclusion that the Hearing Officer could reasonably come to, given the conduct, the lack of apology, and the persistence in the conduct with Officer Kazprzyk, even after he was told to stop.

38Moreover, the Hearing Officer was in the best position to consider the evidence of good character, as well as the evidence of management’s treatment of other incidents with guns. The evidence supported his conclusion that management had not condoned horseplay with firearms.

39Finally, this penalty was within the range for comparable conduct. In Nothing, supra, the Commission upheld a dismissal after one incident of pointing a loaded gun. Here, there were nine incidents of careless use of a firearm over a two year period.

40In my view, the Commission acted reasonably in upholding the penalty imposed by the Hearing Officer. There is a line of analysis in the Hearing Officer’s reasons and in those of the Commission that stands up to a “probing examination”. Therefore, this ground of appeal fails.

Appeal With Respect to the Conviction on Count 1

41The Appellant argues in his factum that the conviction on Count 1, the showing of a scrotum piercing, should be set aside for a number of reasons. He argues that the Commission erred in upholding the Hearing Officer’s decision that the conduct in question amounted to discreditable conduct. As well, he argues that the Hearing Officer erred in permitting the prosecutor to call reply evidence, thus splitting his case. He also objects to the Hearing Officer’s refusal to permit an adjournment, the refusal to order production of information concerning another alleged misuse of a firearm, the loss of a portion of a transcript and a reasonable apprehension of bias, because the Hearing Officer and the prosecutor both used the executive offices of the Chief during the hearing.

42The Commission concluded that the Hearing Officer’s decision was based upon the evidence before him, and that it was within his discretion to determine that the conduct complained of might bring discredit upon the reputation of the Police Service. In my view, the Commission’s decision on the merits was reasonable, as there was an evidentiary foundation for the Hearing Officer’s decision and no error in principle underlying his conclusion that the conduct in question was “discreditable ”.

43The Commission’s reasons make no reference to the procedural issues raised in this appeal. However, in my view, the Appellant has failed to show that there was unfairness in the way in which the hearing was conducted. The evidence of P.C. Bean was led in reply because the Appellant put his character in issue. The prosecutor was not splitting his case.

44Moreover, the Appellant has failed to show any unfairness in the refusal to produce a report which showed that certain allegations against another officer were not substantiated. Nor is there any evidence to show that the fairness of the hearing was affected by the loss of a portion of the transcript, nor to support the allegation of a reasonable apprehension of bias. Therefore, this ground of appeal also fails.

Conclusion

45For these reasons, the appeal is dismissed. If the parties are unable to agree on costs, they may make brief written submissions within 21 days of the release of these reasons.

Swinton J.

O’Driscoll J.

Caputo J.