Court File No.: 368/07
Released: 20081006
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Re: POLICE CONSTABLE PAUL STONE, Appellant
- and -
THE TORONTO POLICE SERVICE, Respondent
Before: Carnwath, Swinton and Karakatsanis JJ.
Counsel: Alan D. Gold for the Appellant
Michael G. Martosh and Omo Akintan for the Respondent
Heard at Toronto: September 10, 2008
ENDORSEMENT
[1] Police Constable Paul Stone appeals the decision of the Ontario Civilian Commission on Police Services (OCCPS) dated July 4, 2007 dismissing his appeal from Hearing Officer Superintendent Tweedy’s finding of misconduct because he engaged in corrupt practice and from the penalty imposed by him.
[2] In a decision dated October 19, 2005, Hearing Officer Superintendent Tweedy found that P.C. Stone had improperly used his character and position as a member of the Toronto Police Service for private advantage. On March 29, 2006 the Hearing Officer refused to hear P.C. Stone’s motions regarding reasonable apprehension of bias and ineffective assistance of counsel. On May 25, 2006, Superintendent Tweedy imposed the penalty of a demotion in rank from First Class Constable to Third Class Constable for a period of five months, followed by a demotion in rank to Second Class Constable for a period of ten months. His return to First Class Constable was contingent on the Unit Commander’s assessment of P.C. Stone’s qualification for that rank. The penalty was imposed for both the finding of corrupt practice and a related count of insubordination to which he pled guilty
[3] OCCPS found the Hearing Officer’s conclusions were not evidently wrong and did not reflect clear error and could reasonably be accepted. As well, OCCPS found there was no breach of natural justice arising from an alleged reasonable apprehension of bias.
[4] P.C. Stone asks that the decision to dismiss his appeal be set aside and a new hearing ordered.
[5] This appeal raises three issues:
Did OCCPS err in failing to recognize an essential element of the offence of corrupt practice, and to acknowledge that the evidence before the Hearing Officer did not prove the offence as charged and particularized?
Did the proceedings before the Hearing Officer breach principles of procedural fairness because a reasonable apprehension of bias existed on the part of the Hearing Officer?
Was the penalty imposed by the Hearing Officer unduly harsh, unwarranted based on the evidence, or disproportionate relative to other penalties imposed for similar offences?
[6] The Appellant’s counsel advised he abandoned the ground of appeal alleging that the ineffectual conduct of counsel rendered the hearing unfair.
Corrupt Practice
[7] P. C. Stone was charged with improperly using his character and position as a member of a Police Service for private advantage contrary to section 2(1)(f)(v) of the Schedule Code of Conduct of Ontario Regulation 123/98 and therefore he was guilty of misconduct pursuant to section 74(1)(a) of the Police Services Act, R.S.O. 1990, c.P15. The charge was particularized:
Being a member of the Toronto Police Service…you arrested M. A. for failing to provide a roadside breath sample and released him unconditionally. Investigation has revealed that in return you received tickets to a hockey game from M.A. In so doing, you improperly used your character and position as a member of the Service for private advantage.
[8] The offence of corrupt practice is set out in section 2 (1) (f) of the Code of Conduct:
- (1) Any chief of police or other police officer commits misconduct if he or she engages in,
(f) Corrupt Practice, in that he or she,
(i) offers or takes a bribe,
(iii) directly or indirectly solicits or receives a gratuity or present without the consent of the chief of police,
…[or]
(v) improperly uses his or her character and position as a member of the police force for private advantage.
The Hearing Officer’s Findings
[9] On February 4, 2004, P.C. Stone arrested Mario Amaro for refusing to provide a breath sample. P.C. Stone handcuffed Mr. Amaro and placed him in the back of the cruiser. P.C. Stone then learned from Mr. Amaro’s wife that Mr. Amaro had friends who were police officers, including Michael McCormack. P.C. Stone released Mr. Amaro without legal consequence and after doing so, failed to complete his police ‘memo book’ notes and other arrest documents as required.
[10] Three days later, on February 7, 2004 P.C. Stone had a telephone conversation with William McCormack, a fellow officer and Michael McCormack’s brother. The telephone call was intercepted pursuant to a wiretap authorization relating to William McCormack.
[11] P.C. Stone told William McCormack he had met Michael McCormack the day following the arrest and told him he had arrested his friend. P.C. Stone said Michael McCormack later telephoned him and indicated he had a pair of hockey tickets for Stone from Mr. Amaro, who was really apologetic. Although Stone initially said it was not necessary, he agreed to accept them. William McCormack was about to enter Mr. Amaro’s restaurant at the time of the call, and he intended to ‘chew out’ Mr. Amaro and ensure Mr. Amaro ‘did good’ for P.C. Stone.
[12] The Hearing Officer found: P.C. Stone released Mr. Amaro from custody because he was friends with certain influential police officers, including Michael McCormack; P.C. Stone accepted hockey tickets with the assistance of Michael McCormack, from or on behalf of Mr. Amaro; P.C. Stone intended to accept hockey tickets from Mr. Amaro, given in gratitude and in furtherance of Mr. Amaro’s apology for his failure to provide a breath sample and his abusive and belligerent roadside conduct. The Hearing Officer also found: “The conversation reveals Police Constable Stone giving direction to Police Constable William McCormack on how to introduce the traffic stop discussion , as he was about to enter Amaro’s restaurant to solicit some benefit and ensure Amaro becomes aware that Police Constable Stone is 'not a bad guy.’”
[13] The Hearing Officer found the wiretap evidence to be a “rare and raw insight into the activities of two serving police officers.” He stated: “in the absence of credible evidence and believable explanation, the wiretap conversation alone, is powerful evidence of public badge carrying, neglect of duty, preferential treatment and corrupt intention to receive a reward.”
[14] The Hearing Officer did not accept the evidence of the defence witnesses, including P.C. Stone and Michael McCormack, and found there to be clear and convincing evidence of guilt. As a result the Hearing Officer determined that the Appellant had committed the offence of corrupt practice, as particularized above.
[15] At the hearing the Appellant pleaded guilty to the related charge of Insubordination for failing to submit a record of arrest or make any memo book notes in relation to Mr. Amaro’s arrest, as he was required to do in accordance with police procedures.
Did the Commission err in failing to recognize an essential element of Corrupt Practice as charged?
[16] Both parties submit the standard of review for questions of law is correctness, and the standard of reasonableness applies to questions of mixed fact and law. We agree. The issue raised by the Appellant is a question of mixed fact and law and the standard of reasonableness applies.
[17] Under subsection 2(1)(f)(v) of the Code of Conduct the officer engages in corrupt practice if he or she “improperly uses his or her character and position as a member of the police force for private advantage.” Although the Hearing Officer found P.C. Stone accepted hockey tickets from or on behalf of Mr. Amaro subsequently sent in gratitude for what was done earlier, he did not find that there was any discussion or intention to receive a benefit at the time P.C. Stone released Mr. Amaro.
[18] The Appellant submits OCCPS and the Hearing Officer erred in their interpretation of the charge of corrupt practice as particularized and ignored an essential element of the charge. The submission is that the word ‘uses’ connotes a purposeful quid quo pro and a mental element of purpose; the ‘use’ of office for private advantage requires active conduct on the part of the police officer accompanied by the mental intention to obtain a personal benefit. The Appellant submits it is not sufficient that there merely be some nexus in hindsight between the release and the acceptance of the tickets.
[19] In effect, the Appellant argues that although he may have received an improper benefit, he did not use his office at the time of the release for the purpose of obtaining that benefit.
[20] OCCPS stated:
The question for the Hearing Officer was whether there was clear and convincing evidence establishing that the release of M and the receipt of free hockey tickets were linked. Put another way, was Constable Stone’s receipt of the free hockey tickets the result of a morally tainted, improper use of his position as a member of the Toronto Police Service?
Constable Stone’s decision to release M [Amaro] had obvious hallmarks of ‘wrongness’ and ‘moral degeneracy’. It is self-evident that who you know should have nothing to do with how the law is applied to you.
It was not unreasonable for the Hearing Officer to conclude that this offer [of tickets] flowed directly from Constable Stone’s questionable actions while in uniform and on duty on the morning of February 4, 2004. There is a clear nexus between the two events. Tickets were delivered to Constable Stone a few days later.
[21] We find that the Commission’s analysis was reasonable. In any event, we conclude that OCCPS was correct in its interpretation of the requirements of corrupt practice under subsection 2(1)(f)(v) of the Code of Conduct.
[22] At its core, subsection 2(1)(f) aims to protect the integrity and impartiality of police officers and the police service. The common thread between the subsections is that they make it an offence for police officers to obtain unauthorized private gain arising from their office. Subsections 2(1)(f)(i) –(iv) identify specific ways in which an officer could obtain such unauthorized private gain. By contrast, ss. (v) describes the general prohibition which is at the heart of ss. 2(1)(f). In this context, the final subsection functions as a broad catchall category.
[23] Subsection 2(1)(f)(v) requires a causal relationship between the improper use of the officer’s position and the personal advantage. The subsection does not, however, require that the personal benefit be anticipated or intended prior to or at the time the police officer improperly uses his position as a police officer, in this case, at the time Mr. Amaro was released. The temporal nexus urged by the Appellant is not required by the language of the subsection and would effectively limit the scope of ss 2(1)(f)(v) so that it is merely a repetition of the prohibition against bribes as stated in ss. 2(1)(f)(i). The misconduct under ss. 2(1)(f)(v) in this case commenced with the officer’s misuse of office in releasing Mr. Amaro and crystallized when the officer accepted a personal benefit offered in gratitude for that failure to carry out his duties as a police officer. Further, the Hearing Officer found that P.C. Stone provided some direction to P.C. McCormack on how to approach Mr. Amaro as he entered the restaurant to solicit some benefit on his behalf. The Commission was both reasonable and correct in finding such conduct violated both the language and spirit of corrupt practice under ss. 2(1)(f)(v) of the Code of Conduct.
Reasonable Apprehension of Bias
[24] The Appellant submits OCCPS erred in its decision to uphold the Hearing Officer’s refusal to hear the defence motion and his refusal to recuse himself and declare a mistrial based on a reasonable apprehension of bias against a key defence witness, Michael McCormack. We did not call upon the Respondent to address this issue.
[25] In finding P.C. Stone guilty of misconduct, the Hearing Officer made negative findings of credibility against the defence witnesses including Stone, Amaro and Michael McCormack. The Divisional Court found that the same Hearing Officer should not subsequently preside over separate misconduct hearings against Michael McCormack, (McCormack v. Toronto (City) Police Service, [2005] O.J. No. 5149).
[26] The Divisional Court further expressed some concern about a reasonable apprehension of bias in the pending disciplinary hearing against McCormack on the additional basis that the Hearing Officer had a close working relationship with and a favourable pre-disposition toward a prosecution witness who was to testify against McCormack as a defendant.
[27] OCCPS determined in this case that it would have been preferable if the Hearing Officer had addressed this motion on its merits. The Commission then considered the Divisional Court decision and the issue on its merits and found there were no grounds to disturb the Hearing Officer’s findings because of any concerns with respect to a potential apprehension of bias. We see no error in the Commission’s decision.
[28] The Appellant’s further position is the mere fact the Divisional Court expressed a bona fide concern about the Hearing Officer’s ability to judge Michael McCormack fairly as a defendant in his own case raises serious concerns with respect to how he could judge the same person fairly as a witness in P.C. Stone’s matter. It was submitted that these concerns create a perception that undermines the integrity and appearance of fairness of the initial adjudicator as to deny P.C. Stone a fair hearing.
[29] The Divisional Court’s concern in this regard was not that the Hearing Officer was generally biased against McCormack but rather that the Hearing Officer might have a favourable pre-disposition or bias in favour of a key prosecution witness in the proceedings against McCormack. In any event, that witness did not testify at P.C. Stone’s disciplinary hearing, which preceded McCormack’s disciplinary hearing. Therefore, there is no merit to the bias argument.
Penalty
[30] It was not disputed that deference is owed to an administrative tribunal’s decision on penalty.
[31] P.C. Stone submitted to the Hearing Officer that a 20 day suspension was an appropriate penalty with a resulting loss of $5,600 in pay. The two demotions imposed resulted in a loss of $12,300 in pay. The penalty related to both the insubordination and corrupt practice violations.
[32] The Appellant submits the penalty imposed on him was harsh and excessive, unwarranted by the facts, disproportionate and at variance with other penalties imposed for similar offences. Further, the penalty failed to take into account good character evidence. P.C. Stone has contributed over 26 years to the Police Service, and this was his first offence. Evidence was presented during sentencing demonstrating P.C. Stone’s character as a hardworking and dedicated officer.
[33] The Hearing Officer considered and assessed P.C. Stone’s employment history, as well as the character evidence presented during the sentencing phase of the hearing. He considered the nature and the seriousness of the misconduct; the damage to the reputation of the Police Service; the need for deterrence; the ability to reform or rehabilitate the Appellant; and the mitigating and aggravating factors.
[34] In our view, the Hearing Officer did not make a manifest error in principle, nor did he fail to adequately consider all of the factors before him, including the character evidence that was presented by the Appellant. The penalty imposed does not appear to be disproportionate or outside the range of other cases submitted to us. As a result, the Commission appropriately and reasonably refrained from interfering with the penalty.
Conclusion
[35] Therefore, the appeal is dismissed. If the parties cannot agree on costs, they may make brief written submissions to the Court within 30 days.
Carnwath J.
Swinton J.
Karakatsanis J.
Released: October 6, 2008