COURT FILE NO.: 227/05

DATE: 200604502

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, CHAPNIK & WHALEN JJ.

B E T W E E N:

CHIEF OF POLICE, TORONTO POLICE SERVICE

Appellant

- and -

CONSTABLE ROBERT KELLY

Respondent

Brian Gover & Brendan Van Niejenhuis, for the Appellant

Beth Symes & Ken Jull, for the Respondent

HEARD at Toronto: April 7, 2006

CARNWATH J. :

INTRODUCTION

[1] The Chief of Police appeals from a decision of the Ontario Civilian Commission on Police Services (“OCCPS”) which sat as an appellate tribunal reviewing the decision of the Hearing Officer to terminate Constable Robert Kelly after a discipline hearing.

[2] Before the Hearing Officer, the Toronto Police Service (“TPS”) was represented by Staff Inspector George Cowley of Prosecution Services. Constable Kelly was represented by Mr. Peter Brauti. They submitted an Agreed Statement of Facts (a copy of which is attached as Schedule “A” to these reasons) and a joint submission on penalty to the hearing officer; no viva voce evidence was called. The joint submission called for Constable Kelly’s continued employment by the TPS with thirteen conditions attached. Violation of any one of the conditions would result in Constable Kelly’s termination.

[3] The Hearing Officer rejected the joint submission on penalty and imposed a penalty of termination. On appeal, OCCPS set aside the Hearing Officer’s decision and ordered reinstatement of Constable Kelly in the terms of the joint submission.

[4] In turn, the Chief of Police has appealed to the Divisional Court. The appeal raises two questions:

1. Did OCCPS articulate and apply a standard of review of reasonableness in considering the Hearing Officer’s decision?

2. Was OCCPS’ decision to order reinstatement of Constable Kelly in the terms of the joint submission a reasonable one?

BACKGROUND FACTS

(a) Constable Kelly’s Record with Toronto Police Service

[5] Constable Kelly joined the TPS in May of 1989. Throughout his career, he has held a number of positions including duties in the criminal investigative bureau, uniformed patrol, alternate response unit and major crime units. In 1996, Constable Kelly joined the Northwest Field Command Drug Squad where duties included surveillance, preparing search warrants, executing search warrants, intelligence gathering, developing informants, working with agents, case preparation and undercover work.

[6] Constable Kelly’s employment record contains over twenty examples of his distinguished service. Aside from the charges giving rise to this appeal, his record of service with the TPS has been impeccable. At his criminal trial, Cowan, J., in reviewing Constable Kelly’s Brief of Employment History, comments:

In this case, I am sentencing Robert Kelly, a Toronto police officer with an impeccable record for heroic police service.

[7] Constable Kelly filed twenty-six letters of reference in both the criminal proceeding and before the Hearing Officer. Of these, fifteen were from current or former police officers attesting to how well Constable Kelly was thought of by his colleagues even after his arrest. In reviewing the letters of reference, Cowan, J. notes:

Kelly is thought of highly by his friends and colleagues and their collective opinion is that these events are out of character.

[8] The workload at Northwest Drugs was heavy and intense. Members of the squad often worked full schedules in the evenings, engaged in extensive overtime, (often on a “no claim” basis), and attended court in the mornings. The average week involved approximately seventy hours of work. Like members of other specialized units, members of the squad were required to carry pagers and be “on call” twenty-four hours a day, seven days a week.

[9] Constable Kelly was often used as an undercover officer for mid-level cocaine projects. The nature of this work required him to develop relationships with and gain the trust of his targets. These undercover projects usually involved his posing as a fellow drug dealer and/or user and required him to assume and maintain false identities for both short and prolonged periods of time.

[10] Dr. Peter Collins, a forensic psychiatrist with the Law and Mental Health Program at the Centre for Addiction and Mental Health (“CAMH”), conducted a psychiatric assessment of Constable Kelly. In his report, Dr. Collins comments about a body of research that has reported the negative effects on officers engaged in undercover work:

Over the past two decades there has been an increasing amount of research demonstrating that officers who are employed in an undercover capacity can potentially experience atypical emotional difficulties. Research has shown that there are specific adaptive and maladaptive personality characteristics associated with Undercover (UC) work. Upwards of 50% of UC operatives admit to experiencing psychological problems during their assignment. As well, some operatives engage in damaging activities including shoplifting, substance abuse and inappropriate relations with targets.

[11] In the course of the submissions regarding penalty, the prosecutor, Staff Sergeant George Cowley, confirmed that at the time of the events giving rise to Constable Kelly’s disciplinary charges, the TPS did not have a program in place to assist undercover officers with job-related stress and/or substance abuse. Subsequently, the TPS has established the Merry Program which is specifically tailored to undercover officers. This program addresses handling stress, ethics and substance abuse in connection with undercover work.

(b) Traumatic Events in Constable Kelly’s Life

[12] While working at Northwest Drugs, Constable Kelly experienced the following:

i. In March of 1998, Kelly’s father died as a result of Lou Gehrig’s disease; this had a devastating effect on Kelly since he was particularly close to his father.

ii. Within a week of his father dying, Kelly’s partner at work was shot during an undercover project; the wounded officer narrowly survived the gunshot wounds and Kelly personally apprehended one of the offenders.

iii. In the spring of 1999, Kelly gave chase to an offender who had robbed an undercover drug officer at gunpoint; during the course of the chase, the offender pointed a shotgun at Kelly requiring him to dive to the ground and take cover behind a fence; the offender was charged with attempted murder.

iv. In November of 1999, Kelly’s common-law wife of nine years left him. A major factor contributing to the relationship breakdown was related to his employment including job stress, lengthy hours and the dangerous nature of the work.

v. In late 1999, Kelly was put on a promotional list for the rank of sergeant. This promotion was put on hold as a result of a charge of driving while impaired, an unrelated allegation of misconduct against Kelly. Kelly was acquitted of these charges.

vi. In February 2001, Kelly was involved in a motor vehicle accident in which he and another officer were almost killed; Kelly’s car overturned and slid on its roof for approximately 200 yards after hitting a transport truck.

[13] The evidence indicated that all of the above events, combined with the workload at Northwest Drug Squad, caused Constable Kelly to become increasingly depressed. His post-traumatic stress estranged him from others, affected his mood and concentration. He felt helpless and hopeless and began to associate with his false undercover persona as opposed to his true character.

[14] Constable Kelly spoke to his supervisors on more than one occasion about transferring to a unit where his duties would be less stressful. However, he did not make a formal application for transfer and no transfer took place.

(c) Circumstances Leading Up to Constable Kelly’s Arrest and Disciplinary Charges

[15] Sometime before the Fall of 2001, Constable Kelly began to deal with his emotional and psychological stress by self-medicating with cocaine. Dr. Collins states that Constable Kelly used this drug for its euphoric and anxiolytic effects. That is, Constable Kelly treated his depression and stress with cocaine. His knowledge of the drug trade and undercover work meant that cocaine was readily available to him. He was aware of individuals who had similar substance abuse problems and he began to associate with one of these individuals, a civilian, who had previously supplied him with information regarding criminal activity. Constable Kelly and this civilian began to share cocaine for their own personal use. On two occasions, Constable Kelly brought small amounts of cocaine for them to share. Unbeknownst to Constable Kelly, on these two occasions, this civilian was acting as a police agent.

[16] Dr. Klaus Kuch, a psychiatrist at the CAMH, assessed Constable Kelly and concluded that he had become cocaine-dependant during his times as an undercover agent and in the context of his police work. Dr. Kuch observed that undercover work required that Constable Kelly assume a second identity that blended with the drug culture. In his opinion, Constable Kelly’s substance abuse developed in the context of his assuming the role of a “bandit” and under conditions of extreme stress the addictive properties of cocaine trapped him into further use.

[17] Constable Kelly was arrested and charged with various drug offences. In late 2003, he pled guilty to two counts of simple possession of cocaine, contrary to the Controlled Drugs and Substances Act. On March the 4th, 2004, Cowan, J., of the Ontario Provincial Court, imposed a suspended sentence.

[18] In imposing a suspended sentence, Cowan, J. explicitly commented on the subsequent disciplinary proceeding and that as a practical matter, had he imposed a jail sentence as opposed to the suspended sentence, dismissal would have been the likely penalty imposed in the disciplinary proceeding.

(d) Constable Kelly’s Efforts at Rehabilitation and Prognosis of Experts

[19] Upon Constable Kelly’s arrest, he readily admitted to a cocaine abuse problem. He immediately and voluntarily entered into a twenty-one day inpatient program at the Hamilton Services Addiction Unit, a rehabilitation centre. Constable Kelly successfully completed this program and progressed to an aftercare program at Bellwood Health Services. His attendance at Bellwood was also voluntary and he regularly attended the H.E.A.R.T. program for police officers. Constable Kelly had maintained his abstinence from mood-altering drugs at the time of the hearing.

[20] Constable Kelly also sought the assistance of psychologists and psychiatrists. These professionals have concluded that as a result of the events in his life, he was suffering from post-traumatic stress and was self-medicating to deal with these issues. His medical treatment has allowed him to develop coping strategies in order to ensure that he is not at risk of any relapse. At the time of his disciplinary hearing, Constable Kelly had voluntarily attended between 350 and 400 hours of counselling. Constable Kelly accepted a volunteer position at Bellwood in order to help other individuals with their own substance abuse problems.

[21] One of the health care professionals from whom Constable Kelly sought assistance was Dr. Susan Williams, a psychologist. Dr. Williams treated him with cognitive therapy for post-traumatic stress disorder teaching him coping techniques to manage the stress in his life. In total, Dr. Williams spent thirty-nine one-hour sessions with him. Testifying at Constable Kelly’s criminal trial, Dr. Williams’ prognosis was that he “had a very low risk of relapsing, as he was committed to change and had replaced his negative conditions with positive ones and had significant remorse.”

[22] In his report, Dr. Collins makes the following comments about the circumstances giving rise to Constable Kelly’s addiction, his efforts at rehabilitation and ability to return to work:

(a) Kelly experienced traumatic events secondary to his work as a drug officer, both in the course of his duties and in his personal life. In response to the cumulative stress and depression, he developed maladaptive behaviour including self-medicating with cocaine;

(b) Kelly has been successfully treated for stress disorder and substance abuse;

(c) Kelly’s behaviour is well recognized as being secondary to undercover work. Had Kelly been removed from the drug squad when he requested, he very likely may not have displayed the behaviour giving rise to the disciplinary charges;

(d) While many police agencies have developed undercover stress programs, at the time of the events giving rise to the disciplinary charges, there did not appear to be an in-depth undercover stress program at the TPS; and

(e) Substance abuse is an illness for which Kelly has been successfully treated (in addition to being treated for the accompanying stress disorder). There is no psychiatric reason why he cannot return to work as long as he is not placed in the drug squad.

[23] In summing up the expert evidence before him on Constable Kelly’s long-term prognosis, Cowan, J. states:

The prognosis of experts who have worked with him [Kelly] is that there is little likelihood of re-offending.

[24] The TPS required Constable Kelly to undergo a substance abuse assessment on June 10, 2004. Although a written report was not available at the time of the hearing, the verbal report from Medical Advisory Services was that he was fit to return to work, he was well on his way to recovery and he was not using illegal substances.

(e) Proceedings Before the Hearing Officer

[25] In addition to being charged criminally, Constable Kelly was charged with four counts of misconduct contrary to section 2(1)(a)(xi) of the Schedule Code of Conduct of Ontario Regulation 123 for 1998 and therefore, contrary to section 74(1)(a) of the Police Services Act. It was those charges that resulted in the hearing before the Hearing Officer that was the subject of the appeal to OCCPS.

[26] The first appearance before the Hearing Officer, Superintendent A.J. Warr, took place on June 15, 2004. The prosecution elected to proceed with two of the four misconduct charges to which Constable Kelly pled guilty. The remaining two charges were subsequently dropped. An Agreed Statement of Facts was read into the record and a joint submission as to penalty was provided to the Hearing Officer and read into the record by the prosecutor, Staff/Inspector Cowley.

[27] The joint submission provided that Constable Kelly retain his employment with the TPS subject to thirteen conditions. The joint submission acknowledged that Kelly entered an early guilty plea to his criminal charges and had undergone substantial rehabilitation for his substance abuse problem and, as a result, the TPS believed that Kelly should have a second chance to rehabilitate himself and an opportunity to resurrect his career as a police officer.

[28] The thirteen conditions imposed on Constable Kelly’s continued employment were as follows:

(1) P.C. Kelly will not possess or use any substance included in Schedules I, II, or III of the Controlled Drugs and Substances Act except where required in the performance of his duties as a police officer;

(2) P.C. Kelly will be subject to random drug testing for illegal substances at management’s sole discretion and for as long as he is employed by the Toronto Police Service;

(3) Refusal to provide a sample for drug testing, or testing positive for a substance included in Schedules I, II, or III of the Controlled Drugs and Substances Act, will result in a prosecution for insubordination under the Police Services Act, in which the Toronto Police Services will seek his dismissal;

(4) P.C. Kelly will undergo substance abuse assessments and psychiatric assessments at management’s discretion from time to time;

(5) P.C. Kelly will continue his treatment at Bellwood until health professionals advise that he no longer needs to attend;

(6) P.C. Kelly will provide to Medical Advisory Services, all medical records relating to his substance abuse problem and treatment to date;

(7) P.C. Kelly will provide to Medical Advisory Services, complete access to all of his medical records for as long as he is employed by the Toronto Police Service for the purpose of certifying to management that he is fit to work;

(8) P.C. Kelly will be demoted to fourth class constable. Upon receiving favourable performance evaluations, he will be eligible for re-classification to third after one year and then to second and first class subject to the same conditions;

(9) P.C. Kelly will not carry a firearm;

(10) P.C. Kelly will work in uniform and be placed on a shift for an inside job.

(11) Conditions 9 and 10 will not preclude P.C. Kelly for progressing to a position that requires outside work and at that time these conditions, i.e. 9 and 10, shall be removed;

(12) P.C. Kelly will not perform pay duties; and

(13) Condition 12 shall be removed if P.C. Kelly is permitted to carry a firearm.

[29] The joint submission was described as a “last chance agreement”; that is, if any of the thirteen terms and conditions imposed on Constable Kelly’s continued employment were contravened, the TPS would seek his dismissal.

[30] The Hearing Officer asked counsel for further submissions on penalty. On July 27, 2004, the parties re-attended before the Hearing Officer. Both the prosecutor and Constable Kelly’s lawyer made extensive submissions as to the appropriateness of the joint submission. At the conclusion of his submissions on the factual circumstances supporting the sentence, counsel for Constable Kelly asked the Hearing Officer whether he had any questions. The Hearing Officer provided the following response:

I wrote a few questions down, but you seemed to have answered them as we go, so I’m, I’m fine right now.

[31] Despite the Hearing Officer’s statement that he had no questions in connection with the submissions, both counsel, in response to a question raised by the Hearing Officer on a previous occasion about the source of the cocaine, informed the Hearing Officer that an analysis was conducted on drug exhibits from unrelated cases and there was no evidence that the drugs possessed by Constable Kelly came from previous exhibits.

[32] On September 30, 2004, the parties re-attended before the Hearing Officer for sentencing. The Hearing Officer stated that he could not accept the joint submission and, as a result, he ordered Constable Kelly to resign from the TPS within 7 days or he would be dismissed.

[33] In support of his decision that the joint submission on sentence was inappropriate and that dismissal was warranted, the Hearing Officer relied on the following factual findings:

(a) in order to obtain the drugs he used prior to the date of his arrest, Kelly must have been cavorting with drug traffickers under the nose of fellow officers;

(b) if Kelly did not obtain the drugs from a drug trafficker directly, then he obtained them from skimming or stealing from seized exhibits or received them from another corrupt officer;

(c) Kelly’s failure to disclose the source of the drugs detracts from his claim that he is completely remorseful;

(d) Kelly’s own deliberate acts that amount to criminal behaviour led to his addiction and, accordingly, the need for the employer to accommodate Kelly is lessened; and

(e) the fact that the Toronto Police Service will have to create a position to accommodate Kelly speaks to his lack of usefulness to the Service.

(f) The Proceedings Before OCCPS

[34] Constable Kelly appealed the decision of the Hearing Officer to OCCPS. He alleged that the Hearing Officer’s decision was unreasonable in that it: (a) failed to give adequate consideration to employer’s duty to accommodate including clearly misstating the law on accommodation; (b) made key findings where no evidence existed to support those findings or where the evidence was contrary to those findings; (c) made errors in legal characterization; (d) failed to provide the Respondent with an opportunity to address the Hearing Officer’s concerns about the source of the drugs; (e) failed to accord sufficient weight to relevant factors; (f) failed to apply the sentencing principles to the joint submission; and (g) imposed a penalty that was harsh and excessive.

[35] For the reasons set out below, OCCPS held that the decision of the Hearing Officer should be varied and that the joint submission should be imposed in place of termination. A copy of the OCCPS decision is annexed as Schedule “B” to these reasons.

i. Findings of the Hearing Officer Respecting Constable Kelly’s Addiction Unreasonable

[36] With respect to the Hearing Officer’s comments on Constable Kelly’s addiction, OCCPS concluded as follows:

In particular, we find that the Hearing Officer’s analysis with respect to the question of Constable Kelly’s handicap to be particularly unhelpful. The Hearing Officer noted that there was no evidence before him other than Constable Kelly’s self-reporting of his substance abuse problem prior to his arrest. He pointed out that one of Constable Kelly’s supervisor’s did not note any signs of impairment on the part of the Appellant. He also indicated that given Constable Kelly’s choice not to use drugs on November 9, 2001 (because he was working) this suggested that “the addiction was not too powerful, and he was able to control his usage.”

These comments are speculative, unsupported by the evidence and unfairly diminish the clear and undisputed evidence of Constable Kelly’s addiction and handicap. They go beyond what would be acceptable observations based on common general knowledge or any specialized understanding of police practices inherent in the Hearing Officer’s senior rank.

[OCCPS decision, p.13]

ii. Findings About Duty to Accommodate Clearly Wrong

[37] In his decision, the Hearing Officer concluded that prior to becoming addicted, Constable Kelly must have obtained his drugs though illegal means and that he “must have at times been cavorting with drug traffickers under the nose of fellow officers or skimming or seizing them from exhibits”.

[38] The Hearing Officer further faulted Constable Kelly for not pursuing a transfer more vigorously and suggests he did not have a genuine desire to leave the Drug Squad. The Hearing Officer further noted that the failure of Constable Kelly to identify the source of his drugs undermined the state of his remorse. The Hearing Officer goes on to state that although Constable Kelly “purports to suffer what can be referred to as a handicap or disability – drug addiction, his own deliberate acts that amount to criminal behaviour are what lead to his addiction. Therefore, in my opinion, the need for the employer to accommodate this officer is lessened.”

[39] OCCPS notes that all of the above observations were speculative and unsupported by the evidence:

There was no evidence before the Hearing Officer about any drug use by Constable Kelly prior to his addiction, when precisely he may have become addicted and how he obtained the drugs in question. None of these matters were contained in the allegations before the Hearing Officer. None were relevant to the essential mitigating nature of the handicap and the broader obligation of an employer to accommodate such an employee to the point of undue hardship.

[OCCPS Decision, p. 13]

[40] With respect to the finding that the TPS’ duty to accommodate was lessened as a result of the finding that the addiction would have arisen as a result or initial deliberate illegal acts of Constable Kelly, OCCPS describes this finding as “clearly wrong”.

[OCCPS Decision, p. 13]

iii. The Hearing Officer Ignored Evidence About Management’s Approach to Constable Kelly’s Situation

[41] In his decision, the Hearing Officer cited management’s general approach to situations like Kelly’s to justify his termination decision. On this issue, the Hearing Officer commented that the TPS does not tolerate corrupt officers. In their decision, OCCPS notes that the Hearing Officer completely ignored the obvious fact that management’s approach to Constable Kelly’s situation was to participate in the development of the terms and conditions of the joint submission and was, accordingly. in support of not terminating Kelly.

[OCCPS Decision, p. 4]

iv. The Hearing Officer Ignored the Fact that TPS Acknowledged there was a Position for Constable Kelly

[42] In his decision, the Hearing Officer found that there was no position for Constable Kelly and that the TPS would have to create a position for him if the joint submission was accepted. There was no evidence before the Hearing Officer to support this finding of fact which is contrary with the Agreed Statement of Facts and joint submission which explicitly set out the fact that there was a position available for Constable Kelly as a booker. In their decision, OCCPS notes that the TPS was prepared to acknowledge his handicap, support him in overcoming his addition, recognize that his potential as a good employee was not exhausted and facilitate his rehabilitation.

[OCCPS Decision, p.14]

v. Penalty of Dismissal Unduly Harsh and Punitive

[43] In reviewing all of the facts in the case and the fact that the joint penalty submission was in essence an accommodation plan agreed to by the parties, OCCPS held that the penalty of dismissal imposed by the Hearing Officer was unduly harsh and punitive. OCCPS concluded the Hearing Officer’s decision was, in part, based on a foundation that was not supported by the evidence and was, in part, speculative. OCCPS found the Hearing Officer’s assessment of Constable Kelly’s handicap and potential for rehabilitation was flawed. As a result, OCCPS found that the Hearings Officer was not justified in departing from the joint submission and erred in doing so. Accordingly, OCCPS varied the penalty of termination and in its place imposed the penalty of the joint submission.

[OCCPS Decision, pp.15-16]

The Role Played by the “Standard of Review” in this Proceeding

[44] Under s. 70(6) of the Police Services Act, R.S.O. 1990, c. P. 15 (the “Act”), on an appeal before it, OCCPS 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”.

[45] In Toronto (Chief of Police) v. Blowes-Aybar, it was not in dispute and was accepted by the Divisional Court that “the standard of review for the Commission to apply to a decision of the Hearing Officer is that of reasonableness simpliciter”.

Toronto (Chief of Police) v. Blowes-Aybar (2004), 185 O.A.C. 352 (Div. Ct.)

[46] The standard of review to be applied on an appeal from OCCPS to the Divisional Court on the issue of penalty is 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 Commission is a specialized administrative Tribunal that has been given broad powers on an appeal from a decision of a Hearing Officer to ‘confirm, vary or revoke the devisor being appealed’ or to ‘substitute its own decision for that of the chief of police’ which would include a decision by a Hearing Officer to impose a penalty of dismissal.

On an appeal under s. 71(2) of the Act from the penalty imposed by the Commission on an appeal, from the Hearing Officer, the Divisional Court’s role was (i) to review the decision of the Commission to determine if it was reasonable and (ii) to extend to the Commission’s decision the judicial deference required by that standard.

Ontario (Provincial Police) v. Favretto, [2004] 72 O.R (3d) 681 (Ont. C.A.) at paras. 50-52; leave to appeal refused by the Supreme Court of Canada April 28, 2005

[47] In setting aside the Divisional Court’s decision in Favretto, the Court of Appeal noted that the Divisional Court’s analysis focussed too much on the Hearing Officer’s reasons as opposed to those of the Commission:

I am of the opinion that the Divisional Court’s analysis focused more on the Hearing Officer’s reasons than on those of the Commission and in effect concluded that the Hearing Officer’s decision was the ‘correct’ decision. It did not enter into a ‘probing examination’ to determine whether the Commission’s reasons ‘taken as a whole are tenable as support for the decision’ as directed by the Supreme Court of Canada in Ryan v. Law Society (New Brunswick).

Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247

[48] In the recent decision of Galassi v. Hamilton (City) Police Service, the Divisional Court confirmed the standard set out in Favretto as follows:

…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. 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…

It is the task of this Court to review the decision of the Commission to determine whether it was reasonable.

Galassi v. Hamilton (City) Police Service, [2005] O.J. No. 2301 at paras, 17-18.

[49] However, it must be remembered that, in appropriate circumstances, the Divisional Court will review any decision of OCCPS to determine whether OCCPS both articulated and applied the correct standard of review to the decision of the Hearing Officer. Thus, where OCCPS substituted its conclusions and findings of credibility for that of the Hearing Officer, the Divisional Court found:

¶56. For these reasons, we conclude that the Commission erred when it in practice applied the wrong legal test for review and overreached its review jurisdiction. It in essence retried the case, based upon a review of the transcript, and purported to make findings of credibility without the benefit of hearing any evidence. Thus, it failed to respect the principle of deference to the trier of fact when the issue is credibility. It also failed to provide any factual analysis that would justify its decision.

Blowes-Aybar, supra

[50] Finally, where, as in Blowes-Aybar, the Divisional Court sets aside an OCCPS decision because it applied the incorrect standard of review, therefore committing an error in law, the task of the Divisional Court is to review the Hearing Officer’s decision on the standard of reasonableness.

1. Did OCCPS articulate and apply a standard of review of reasonableness in considering the Hearing Officer’s decision?

[51] The appellant submits the standard of review to be applied by OCCPS is set out by the Supreme Court of Canada in Ryan:

The standard of reasonableness basically involves asking ‘after a somewhat probing examination can the reasons given, when taken as a whole, support the decision?’… Deference is built into the question, since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter.

…[T]he reasonableness standard requires the reviewing court to stay close to the reasons given by the tribunal and ‘look to see’ if any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission to, those reasons.

Ryan, supra, paras. 47, 49

[52] The appellant further submits that OCCPS did not articulate the appropriate standard of review to be applied to the Hearing Officer’s decision, that is, reasonableness.

[53] I reject this submission of the appellant. In articulating its view of the standard of review and how it should be applied, OCCPS is not required to parrot the language of Ryan. It is enough if the words used by OCCPS show that it is alive to the law and understands its obligations under the law. This OCCPS did at p. 10 of its decision:

Our function on appeal is not to second-guess the hearing officer’s decision, even if we might have imposed a different disposition. Rather, our role is to assess whether or not the hearing officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is manifest error in principle or the proper considerations are ignored then we may vary a disposition. Quintieri and Toronto Police Service (2001), 3 O.P.R. 1509 (O.C.C.P.S.) This is not lightly done. Allan and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.)

[54] OCCPS correctly articulated that it was not its function to second-guess the Hearing Officer’s decision even if it might have imposed a different disposition. This is a correct statement of what OCCPS should not do.

[55] OCCPS then described what it should do. Its role, it said, is to “assess whether or not the hearing officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is manifest error in principle or the proper considerations are ignored, then we may vary a disposition… This is not lightly done.”

[56] The words “these principles” refer to an analysis of those matters to be taken into account by a Hearing Officer when imposing penalty. At pp. 9 and 10 of its decision, OCCPS identified these matters as:

• the nature and seriousness of the misconduct;
• the ability to reform or rehabilitate the officer;
• the damage to the reputation of the Police Force were the officer to remain on the Force;
• employment history and experience;
• recognition of the seriousness of the transgression;
• handicap or other relevant personal consideration;
• prior disciplinary cases dealing with similar types of misconduct

[57] If the Hearing Officer did not act fairly and impartially, that would be unreasonable. If the Hearing Officer did not consider all relevant matters, that would be unreasonable. If the Hearing Officer made a manifest error in principle, that would be unreasonable. If the Hearing Officer ignored proper considerations, that would be unreasonable.

[58] I conclude that OCCPS articulated the correct standard of review to be applied to the Hearing Officer’s decision, that is, reasonableness. I reject the appellant’s submission that OCCPS articulated a standard of review of correctness.

[59] The appellant further submits that it is not enough for OCCPS to articulate the correct standard of review to be applied; it must also demonstrate that it did, in fact, apply a standard of review of reasonableness.

[60] I am mindful of the direction of our Court of Appeal as set out in Favretto at para. 50:

In my view, given 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.

[61] The decision of this Court in Galassi, supra, also contains a direction as to how OCCPS should approach its task at para. 17:

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.

[62] Did OCCPS properly consider the opinion and reasons of the Hearing Officer who also has expertise in these matters? I conclude that it did and that it identified findings of the Hearing Officer which can only be described as unreasonable findings on his part.

[63] The Hearing Officer made three findings for which there was no evidentiary basis:

i. endangerment of fellow officers; ii. source of drugs; and, iii. a requirement that the TPS create a new position for Constable Kelly

i. Endangerment of Fellow Officers

[64] The Hearing Officer found that Constable Kelly must have been at times cavorting with drug traffickers under the nose of fellow officers, thus endangering those risking their lives to arrest drug traffickers. There was no evidence before the Hearing Officer of any drug purchases by Constable Kelly while on duty or in the presence of fellow officers. The Agreed Statement of Facts says that “on two occasions P.C. Kelly bought small amounts of cocaine” for sharing with a civilian, who was acting as a police agent. There was no evidence of conduct that could reveal identity of other undercover officers or in any way endanger them. The Hearing Officer referred to safety in considering Constable Kelly’s future employment and in so doing, made a conclusion for which there was no evidence and which contradicted the joint submission. He states:

To allow Constable Kelly to stay employed by the Toronto Police Service will be to strip other officers employed in drug investigation of the atmosphere of safety. It would cheapen their valuable contribution to public safety.

There was no evidence on which this conclusion could be founded. Moreover, it ignored the fact that Constable Kelly would become a booking officer.

ii. Source of Drugs

[65] The Hearing Officer speculated about the source of Constable Kelly’s drugs which amounted to 3.12 grams of cocaine. He speculated that the drugs either came from Kelly cavorting with drug traffickers, his skimming or stealing from seized exhibits or his receiving them from another corrupt officer. There is no evidence that he received drugs by “cavorting with drug traffickers” or receiving them from another corrupt officer. The origin of the drugs presented by the prosecutor stated that the investigators were not able to match the drugs seized from Constable Kelly to any known exhibits.

iii. The Requirement that the TPS Create a New Position for Constable Kelly

[66] In discussing Constable Kelly’s ongoing usefulness to the TPS, the Hearing Officer stated:

The fact that the Service must create a position to accommodate this officer if the joint submission on sentence were to be accepted, speaks to his usefulness as a police officer.

This comment ignores the evidence that Constable Kelly would be a booking officer, an agreement made between the TPS and Constable Kelly. This confirms the prosecutor’s statement to the Hearing Officer that there was a place to assist Constable Kelly to rehabilitate himself within the TPS.

[67] OCCPS concluded the above three findings of the Hearing Officer were unsupported by the evidence. It was reasonable for OCCPS to so conclude.

[68] In addition, the Hearing Officer criticized Constable Kelly for not disclosing the source of his drugs. OCCPS found there was no evidence before the Hearing Officer that Constable Kelly was ever asked about the source of his drugs and did not respond or that he was given a lawful order to disclose this information and refused. OCCPS found that Constable Kelly should not have been the subject of criticism for non-disclosure nor should the non-disclosure have carried any weight in the Hearing Officer’s penalty decision. Particularly, OCCPS found, speculation about the source of drugs should not have been used to diminish clear evidence on the record of Constable Kelly’s remorse and regret.

[69] Finally, OCCPS also noted the Hearing Officer’s critical reference to Constable Kelly’s addiction:

Although…[Constable Kelly] purports to suffer what can be referred to as a handicap or disability – drug addiction, his own deliberate acts that amount to criminal behaviour are what lead to his addiction. Therefore in my opinion the need for the employer to accommodate this officer is lessened.

OCCPS found this conclusion to be clearly wrong and commented that the addiction in question was not “purported”, but rather, established by uncontested medical evidence that was accepted in criminal proceedings.

[70] These findings by OCCPS lead to the inescapable conclusion that it found the Hearing Officer did not “ensure that the relevant factors in assessing penalty have been considered and appropriately weighed in a fair and impartial manner…” as required in Favretto, noted above. OCCPS was compelled to vary a penalty that was unreasonable or that would amount to an injustice. In the words of Law Society of New Brunswick v. Ryan, supra, OCCPS found that the conclusions of the Hearing Officer were not supported by tenable reasons which were grounded in the evidentiary foundation.

2. Was OCCPS’ decision to order reinstatement of Constable Kelly in the terms of the joint submission a reasonable one?

[71] As noted in para. 47 above, the proper approach for the Divisional Court to take “would require the Court to determine if OCCPS 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…”(Favretto, supra).

[72] One cannot over-emphasize the importance of the joint submission to the OCCPS decision. Both the Hearing Officer and OCCPS agreed upon the salient factors to be considered in imposing the appropriate sanction. They are found at pp. 9-10 of the OCCPS decision, (Schedule “B”). The TPS itself joined with Constable Kelly’s counsel to fashion a disposition that met the needs of each party to the discipline process. Having concluded that dismissal was “unduly harsh and punitive”, OCCPS acted reasonably in adopting the joint submission thereby recognizing the important role of the TPS in devising a “one last chance” proposal, ringed with stringent conditions.

[73] Proceedings before a Hearing Officer are not criminal in nature, but rather, flow from a employer-employee relationship.

Trumbley and Fleming (1986), 55 O.R. (2d) 270 (Ont. C.A.), [1986] O.J. No. 650 (Ont. C.A.), appeal to S.C.C. dismissed, 1987 43 (SCC), [1987] 2 S.C.R. 577

[74] In deciding the appropriate disposition, the Hearing Officer must consider not only the conduct of the police officer, but also the employer’s duty to a disabled officer under the Ontario Human Rights Code. This duty to “accommodate” flows from a combination of two statutes:

47.(1) Subject to subsection (2), if a member of a municipal police force becomes mentally or physically disabled and as a result is incapable of performing the essential duties of the position, the board shall accommodate his or her needs in accordance with the Human Rights Code.

Police Services Act, R.S.O. 1990, c. P. 15. s. 47(1)

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of … disability.

Ontario Human Rights Code, R.S.O. 1990, c. H. 19, s. 5(1)

[75] In response to these statutory requirements, OCCPS chose to implement the joint submission, recognizing it as meeting the needs of the TPS and the officer. It is a plan for Constable Kelly’s accommodation and an acknowledgement by the TPS that Constable Kelly could be accommodated without undue hardship. It was reasonable of OCCPS to do so.

[76] At p. 15 of its decision (Schedule “B”), OCCPS made this finding:

It is clear that Constable Kelly has been an exemplary officer whose misconduct was clearly out of character and, as confirmed by medical experts, his actions were no doubt contributed to by a series of distressing personal and work-related events.

This was a reasonable finding on the evidence.

[77] At p. 16 of its decision (Schedule “B”), OCCPS made these findings:

We do not excuse Constable Kelly’s actions. They were reprehensible. However, he appears to have done everything in his power to make things right. He pled guilty to both his criminal and disciplinary charges. He has accepted responsibility for his actions and taken meaningful steps to address his problems. There is undisputed medical evidence that there is low risk of relapse. His potential for rehabilitation has been recognized by his employer. Accommodation without undue hardship is possible.

He agreed to accept demotion to the lowest possible rank of fourth-class constable, work as a booking officer without his firearm and be subject to rigorous work and medical monitoring conditions. Constable Kelly expressed remorse for his misconduct. He agreed to undergo a severe financial penalty and, by his continued presence in the Service, he will serve as a constant reminder of the professional consequences of a conviction for serious misconduct.

These were reasonable findings based on the evidence.

[78] When I examine the OCCPS decision in the light of the direction to consider “all relevant factors in determining the appropriate penalty, including the opinion and reasons of the Hearing Officer …”(Favretto, supra), I conclude that OCCPS properly considered the opinion and reasons of the Hearing Officer and properly considered all other relevant factors in arriving at its conclusion. In the words of Law Society of New Brunswick v. Ryan, supra, the conclusions of OCCPS are supported by tenable reasons which are grounded in the evidentiary foundation. I further conclude the adoption of the joint submission was a reasonable decision by OCCPS.

[79] The appeal is dismissed.

[80] At the close of the hearing, counsel advised the panel they might agree on costs. If they cannot, the parties have fifteen days from the date of issue of these reasons to make brief written submissions as to costs.

__________________________

CARNWATH J.

___________________________

CHAPNIK J.

___________________________

WHALEN J.

Released: 20060502

COURT FILE NO.: 227/05

DATE: 20060502

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, CHAPNIK & WHALEN JJ.

B E T W E E N:

CHIEF OF POLICE, TORONTO POLICE SERVICE

Appellant

- and -

CONSTABLE ROBERT KELLY

Respondent

JUDGMENT

_________________________________________

CARNWATH J.

Released: 20060502