Court File and Parties
Court File No.: DC-08-434 462-08
Released: 20090403
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Re: POLICE CONSTABLE SCOTT HAMPEL, Appellant (434-08)/Respondent (462-08)
-and -
THE TORONTO POLICE SERVICE, Respondent (434-08)/ Appellant (462-08)
Before: Jennings, Wilson and Karakatsanis JJ.
Counsel: Harry G. Black Q.C. and Joanne Mulcahy, for P.C. HAMPEL Ian Solomon, for the Toronto Police Services
Heard at Toronto: March 18, 2009
ENDORSEMENT
Karakatsanis J.:
[1] Police Constable Scott Hampel (the Officer), appeals from the decision of the Ontario Civilian Commission of Ontario dated August 14, 2008. In that decision the Commission dismissed his appeal from a finding of misconduct made by Superintendent Strathdee of the Toronto Police Service (TPS). In appeal (434-08), P.C. Hampel asks that the Commission’s decision be set aside and that the complaint leading to the finding of misconduct be dismissed.
[2] In this same decision, the Commission reduced P.C. Hampel’s penalty from forfeiture of 7 days to forfeiture of 3 days. In an accompanying appeal (462-08), the Chief of Police for the Toronto Police Service appeals the Commission’s decision as to penalty and asks that the original penalty be restored. These appeals were heard together.
[3] On October 22 and November 5, 2004 P.C. Hampel undertook certain person and vehicle queries with the Canadian Police Information Centre (CPIC) relating to his wife Nicole Hampel, at her request. This conduct formed the basis of the charge of insubordination for disobedience to a lawful order.
[4] Rule 4.13.1 of the Rules of the TPS provides:
All computer and telecommunications equipment owned, leased, loaned to or rented by the Service shall be used exclusively for police business.
[5] P.C. Hampel admitted that Rule 4.13.1 is a lawful order and that he had made the CPIC checks with respect to his wife Nicole and the vehicle registered in her name. Nicole Hampel saw P. C. Hampel’s former wife, P.C. Taylor, while in a mall parking lot in mid-October. As a result of P.C. Taylor’s previous conduct, Nicole Hampel, who was pregnant at the time, was afraid of P.C. Taylor and was concerned that she would conduct a check on her vehicle and thereby discover their address. Nicole insisted that P.C. Hampel check the licence plate of the car she was driving that day.
[6] P.C. Hampel ran the checks upon his return to work on October 22 and again on November 5, 2008. CPIC would disclose to him whether there had been any inquiries made on his wife or her vehicle within the previous 48 hours. The searches did not disclose any inquires. P.C. Hampel told his wife that the results were limited but no one had run any checks on her.
[7] P.C. Hampel testified before the Commission that he made the checks at his wife’s insistence and believed they were for police business. If he had found any checks he would have referred it to his supervisors for appropriate investigation. (Record, p. 241). He testified that based upon the lack of response to previous complaints, he didn’t tell his supervisors because he highly doubted anyone would do anything, and if they did and it turned out negative, they would say he was creating stories (Record, pp. 250-251). He was not cross-examined on whether his belief that it was for police business was genuine.
[8] P.C. Hampel and his wife testified about the previous actions of P.C. Taylor that caused them to fear her:
• her testimony shortly after the separation that she had run numerous CPIC checks upon P.C. Hampel and his family and did not know why she had done so;
• her attendance sometime in 1996 or 1997 at Nicole’s former residence in full uniform with a sidearm, even though her job at the time did not require her to wear a uniform;
• her suspected involvement in a 1999 call to P.C. Hampel’s parents that he had murdered Nicole and the arrival of police helicopters and armed officers at his residence to investigate;
• and her suspected involvement in a 2000 Internal Affairs request to investigate whether P.C. Hampel had changed address without proper notification.
[9] In August 2000, P.C Hampel’s lawyer responded to the address request from Internal Affairs asking why they were they were investigating P.C. Hampel and whether the information had come from the Officer’s former wife P.C Taylor. The letter referred to the long history of animosity by P.C. Taylor and interference with P.C. Hampel since their separation. It referred to P.C. Taylor’s testimony regarding previous CPIC checks on him and his family and outlined the horrific circumstances of the call to his parents. Internal Affairs did not respond.
[10] P.C. Hampel was found guilty of misconduct contrary to s. 2(1)(b)(ii) of the Code of Conduct, being a Schedule of Regulation 123/98 of insubordination in that he, without lawful excuse, disobeyed a lawful order in making CIPIC inquiries contrary to Rule 4.13.1 of the TPS Rules.
[11] The Hearing Officer imposed a penalty on P.C. Hampel of forfeiture of seven days or 56 hours off pursuant to s. 68(1)(f) of the Police Services Act, R.S.O. 1990, c. P.15 (PSA).
[12] P.C. Hampel appealed the decision of the Hearing Officer to the Commission. In its decision of August 14, 2008, the Commission dismissed the appeal from the finding of guilt in respect of the misconduct, concluding that the Hearing Officer had evidence before him to support this finding. However, the Commission allowed the appeal as to the penalty imposed, revoking this penalty and substituting a reduced forfeiture of three days or 24 hours off on the basis that the Hearing Officer erred in law in considering two prior disciplinary events on P.C. Hampel’s record when determining sentence.
Standard of Review
[13] An appeal lies to the Divisional Court on a question that is not a question of fact alone.
[14] The Toronto Police Services submits the standard of review is reasonableness. The Officer made no submissions on this issue. Reviews on questions of mixed fact and law or on penalty warrant a reasonableness standard.
[15] With respect to questions of law, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 recognized (at para 54) that questions of law may attract deference and a reasonableness standard where a tribunal is interpreting its own statute with which it has particular familiarity. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context. Considerations include whether there is a privative clause, a discrete and special administrative regime in which the decision maker has special expertise, or if the question of law is of central importance to the legal system and outside the specialized area of expertise of the administrative decision maker will always attract a (para 55). A true question of jurisdiction attracts the standard of correctness (para 59).
[16] The Divisional Court applied Dunsmuir in Gough v. Peel Regional Police Service, 2009 ONSCDC 12112, at para. 17-18 held that the commission’s analysis of its home statute (s. 69(18) of the PSA) was subject to review on the standard of reasonableness but that its analysis of the doctrine of waiver and attornment by guilty pleas dealt with general principles of general law and was subject to review on the standard of correctness. In this case, the Commission was interpreting its own statute, and we agree that a standard of deference applies.
Issues
[17] The Officer submits that the Commission exceeded its jurisdiction in setting standards for the conduct of police officers and in assessing the conduct of the officer in light of broad policy statements and provisions relating to conflict of interest that were not applicable to the offence charged. He further submits that the Commission erred in failing to consider the submissions with respect to the errors of the Hearing Officer, and in finding that evidence was led to show that the checks were not done for police business.
[18] The Officer submits that the Hearing Officer erred in finding that there was evidence about an essential element of the offence: that the checks were not for police business. He further submits that the Hearing Officer erred in mischaracterizing the defence: in failing to consider the defence that the officer had an honest belief that he was conducting police business, given his unchallenged evidence to that effect; in misapprehending the evidence relevant to that defence; by ignoring the similar decisions of Hearing Officers in the cases of Donoghue (June 26, 1997, Record p. 215) and Cook (May 1, 1995, Record p. 223) and in making a finding that he disobeyed the order knowingly.
[19] These appeals raise four issues:
Did the Commission err by making policy statements and applying the wrong standards to the conduct of the officer?
Did the Commission err in finding there was evidence to support the Hearing Officer’s finding that the CPIC system was not used exclusively for police business?
Did the Commission err in failing to find that the Hearing Officer misapprehended and ignored the officer’s defence of honest belief and the evidence in support of that defence?
Did the Commission err in finding that the Hearing Officer erred in law when he considered P.C. Hampel’s previous records of informal discipline in his sentencing decision?
Did the Commission err by making policy statements and applying the wrong standards to the conduct of the officer?
[20] The Commission stated that the integrity of the policing system requires that the community have trust in an unbiased police system, and that the use of resources available only to a police officer creates a conflict of interest when used in a matter in which she or he has a personal interest. “The conflict of interest is clear. Save for the most exceptional circumstances, a police officer should not pursue, in his or her capacity as a police officer, any matter in which she or he has a personal interest.”
[21] In our view the Commission did not create new standards based upon public policy grounds. The Commission articulated the public policy reasons why the rule that CPIC be used exclusively for police business is important; it did not impose a new standard or assess the conduct in this case against conflict of interest rules or a discreditable conduct standard.
[22] The Commission correctly set out its appellate jurisdiction and the standard articulated in numerous Commission decisions: are the conclusions of the adjudicator void of evidentiary foundation?
[23] The Commission articulated the correct test, being whether the CPIC system was “used exclusively for police business” as provided in Rule 4.13.1. Its reference to the decision in Coon (April 10, 2003, O.C.C.P.S.) which uses the phrase “official police business,” does not reflect the application of a different standard. In any event, the word “official” does not change the meaning of “exclusively police business”.
Did the Commission err in finding there was evidence to support the Hearing Officer’s finding that the CPIC system was not used exclusively for police business?
[24] The Hearing Officer found that the search was not made exclusively for police business. The Commission concluded this finding was not void of evidentiary foundation. Given the undisputed circumstances, in particular the gap in time of more than four years between the earlier events and the innocuous sighting of the former wife in the parking lot, the fact that the two limited 48-hour inquiries conducted would not necessarily disclose whether there had been a search since that time, and the fact that the Officer made the request at his wife’s insistence, the Commission was not unreasonable in finding that there were no compelling safety issues and there was evidence to support the Hearing Officer’s findings that the inquiry was not for “exclusively police business”.
[25] The Officer submitted that the Commission and the Hearing Officer erred in finding that the use was not exclusively for police business because there was no evidence submitted by the prosecutor that the search in those circumstances did not constitute police business. We do not agree that expert evidence was required in order to ground such a finding in this case. This is not analogous to a case of professional malpractice. The Hearing Officer could make the determination from the circumstances of the case without expert evidence. Indeed in the cases cited to both the Hearing Officer and the Commission, including Donoghue and Cook, it does not appear that any expert evidence was led.
[26] The Rule requires that CPIC be “used exclusively for police business”. We agree that the mere fact that an officer has a personal interest does not necessarily mean that he could not be engaged in police business. As the Commission stated, police business may in some exceptional situations also involve personal interests. Donoghue is an example where a Hearing Officer accepted that an officer’s contemporaneous CPIC checks on a vehicle were for police business when the officer believed his children were being abducted. The Commission and the Hearing Officer were entitled to assess all the circumstances to determine whether the CPIC checks in this case were made “exclusively for police business”.
Did the Commission err in failing to find that the Hearing Officer misapprehended and ignored the officer’s defence of honest belief and the evidence in support of that defence?
[27] The misconduct of ‘insubordination’ requires that the officer, without lawful excuse, disobey a lawful order. The Officer submits that it was not proved on clear and convincing evidence that he made the CPIC checks without lawful excuse. The Officer submits that given his unchallenged evidence that he believed it was police business and that he would have reported it if he had found that his former wife had run a check on his current wife, the Commission and the Hearing Officer erred in failing to address his defence that he acted in good faith, honestly believing that he was conducting a legitimate police investigation.
[28] The Officer further submitted that the Hearing Officer made findings inconsistent with the evidence, which were material to his defence of honest belief that he was conducting police business, and that the Commission erred in failing to address this issue.
[29] TPS agreed that a reasonable honest belief by P.C. Hampel that he was conducting police business would have provided a defence; however it was implicit in the findings made that the Hearing Officer and the Commission did not accept the bald assertion in the face of the specific circumstances of this case. While the cross-examination did not directly challenge his belief, it is clear throughout the hearing that the TPS challenged the position that it was exclusively police business.
[30] The Hearing Officer noted that P.C. Hampel’s defence is based on doing the “right and noble thing and the peace of mind of his wife”. The Hearing Officer concluded that his failure to report P.C. Taylor’s misconduct begs the question, “how concerned was he about Laura Taylor”? He referred to the fact that P.C. Hampel had not asked his supervisors to initiate an appropriate investigation. The Hearing Officer found that P.C. Hampel “consciously and knowingly disobeyed...[h]e had no lawful excuse to disobey the lawful order”. He stated that P.C. Hampel made the checks to appease his wife’s apprehension and found that P.C. Hampel’s evidence on this issue was an excuse, not a justification. He referred to Coon, suggesting that even if a police officer is concerned about his family’s safety or well-being, he should not be in a better position than an ordinary citizen who would not have access to CPIC in similar circumstances.
[31] We are not satisfied that the Hearing Officer failed to consider P.C. Hampel’s defence that he believed he was advancing a police investigation, albeit personal in nature. As a lay adjudicator, he characterized the evidence of the officer as believing he was doing the “noble and right thing” because of his wife’s apprehension. As the Commission noted, the Hearing Officer is not legally trained and the appellate court should not be overly critical of the language used, nor should it focus on mistakes that do not affect the decision as a whole.
[32] It is implicit in the reasons of the Hearing Officer that he did not accept P.C. Hampel’s bald assertion that he thought it was police business, based upon the circumstances surrounding the past conduct of P.C. Taylor, P. C. Hampel’s own inaction in response to that conduct, and the nature of his response to the innocuous sighting of P.C. Taylor in mid-October. The Hearing Officer explicitly referred to P.C. Hampel’s testimony that “I felt it was for police business if she had run the licence plate I would at least be able to bring forward that she had run the licence plate and I could have the matter look in to appropriately.” He was entitled to assess all the circumstances in determining whether to accept that evidence.
[33] We are also satisfied on a reading of the reasons as a whole that the Hearing Officer did not misapprehend the evidence relating to that defence. With respect to the Hearing Officer’s statement that there was no evidence that P.C. Taylor was a suspect in the 911 bogus call, the reasons disclose that he understood P.C. Hampel’s suspicions about his former wife’s role. There is, however, no evidence that police considered her a suspect in that incident. With respect to the references that P.C. Hampel had not reported P.C. Taylor’s testimony about conducting CPIC checks, it is obvious from the transcript that the Hearing Officer was aware of P.C. Hampel’s lawyer’s letter written several years later in 2000, in response to an inquiry from Internal Affairs. The Hearing Officer was reasonable in not considering counsel’s letter to be a “complaint”, lacking details that would permit investigation. The letter contained general reference to testimony about CPIC checks, years after the fact. The Hearing Officer specifically asked if there had been any other reports of misconduct at the time, and it was not unreasonable for him to consider that in assessing P.C. Hampel’s concerns about P.C. Taylor.
[34] The Rule requires that CPIC be “used exclusively for police business”. In this case, the Hearing Officer assessed the circumstances of the misconduct alleged against the officer’s former wife and the officer’s concerns, and it is implicit in his conclusions that he did not accept the officer’s assertion that he believed he was conducting polices business. There was evidence upon which he could reasonably make such as finding.
[35] Although the Commission fully outlined the issues and the submissions in detail, unfortunately the analysis or ‘reasons’ of the Commission is not extensive, obviously because it agreed with the conclusions of the Hearing Officer.
[36] We are satisfied on the record that the decisions of the Hearing Officer and the Commission on this issue of mixed fact and law were reasonable.
Penalty
[37] The Hearing Officer imposed a penalty on P.C. Hampel of forfeiture of seven days or 56 hours off pursuant to s. 68(1)(f) of the PSA In his consideration of relevant sentence criteria, the Hearing Officer considered two previous informal disciplinary notations on his record dated April and November 2004, as ‘complicating factors’.
[38] The Commission found that pursuant to s. 64(16) of the PSA, the Hearing Officer had committed an error of law in considering the two prior informal disciplinary events on Constable Hampel’s record because the previous informal disciplinary matters were deemed to be expunged from the Constable’s employment record, having occurred more than two years before the date the Hearing Officer found him guilty of misconduct.
[39] Section 64(16) of the PSA states:
All entry made in the police officer’s employment record under paragraph 2 of subsection (15) shall be expunged from the record two years after being made if during that time no other entries concerning misconduct or unsatisfactory work performance have been made in the record under this Part.
[40] The Commission concluded that the “other entry concerning misconduct” for the purposes of s. 64(16) was made on the date of Constable Hampel’s conviction in relation to the CPIC inquiries, pursuant to s. 68(9) which reads:
The chief of police or board, as the case may be, may cause an entry concerning the matter, the action taken and the reply of the chief of police, deputy chief of police or other police officer against whom the action is taken, to be made in his or her employment record, but no reference to the allegations of the complaint or the hearing shall be made in the employment record, and the matter shall not be taken into account for any purpose relating to his or her employment unless,
(a) the complaint is proved on clear and convincing evidence; or
(b) the chief of police, deputy chief of police or other police officer resigns before the matter is finally disposed of.
[41] The Toronto Police Service submits that although s. 64(16) of the PSA does not define “entry”, it was unreasonable for the Commission to interpret the term to mean a finding of misconduct proven on clear and convincing evidence as required by s. 68(9) of the PSA. The Toronto Police Service submits that the service of the allegations in a Notice of Hearing constitutes an entry for the purposes of s. 64(16).
[42] The Toronto Police Service submits that the Commission’s interpretation of the PSA is contrary to public policy and undermines the purposes of the Act because the purpose of s. 64(16) is to ensure that there is a sufficient period with no misconduct to justify expunging prior discipline from an officer’s employment record. Applying s. 68(9) to s. 64(16) defeats this purpose. Furthermore, a misconduct hearing may be arbitrarily delayed or an officer would have an incentive to cause delay. It also submits that it is clear that the legislature intended that mere allegations of misconduct may have legal effect and serious employment-related consequences. For example, an officer may be suspended based upon allegations, prior to a finding of misconduct. Similarly, in Toronto Police Association v Toronto Police Services Board [2002] O.J. No. 2176 (Div. Ct.), the court found that an officer’s promotion could be deferred pending the resolution of a complaint of misconduct notwithstanding the provisions of s. 68(9). Finally, the Toronto Police Service submits that s. 68(9) applies only after allegations of misconduct have been heard at a disciplinary hearing, but before the allegations have been proven, as it is intended to protect an officer from stigmatization or penalization, based upon this court’s decision in Toronto Police Association v Toronto Police Services Board.
[43] The Commission’s interpretation of s. 64(16) in this case is consistent with its interpretation in the case of Monaghan v. Toronto Police Service (OCCPS Decision No. 03-13, May 1, 2003). Although that decision was appealed on other grounds to the Divisional Court (Monaghan v. Toronto (City) Police Service, (2005), 2005 ONSCDC 11796, 198 O.A.C. 59), that interpretation was not challenged on appeal.
[44] Furthermore, the Commission’s interpretation of s. 64(16) in this case is consistent with the Divisional Court’s interpretation of s. 68(9) in Toronto Police Association v Toronto Police Services Board. The arbitrator Maureen K. Saltman had found that s. 68(9) did not preclude a promotion from being deferred, as opposed to denied, pending the outcome of a disciplinary hearing. She stated at p. 11: “subsection 68(9) was not intended to preclude such matters from being taken into account prior to the disposition of disciplinary charges, but rather to preclude consideration of disciplinary matters which have been heard, but which were not proven to the required standard.” McCombs J., writing for the court, held that s. 68(9) did not apply prior to completion of a disciplinary hearing, and the purpose of s. 68(9) was to protect an officer from stigmatization or penalization when he or she was subject to a hearing for a disciplinary offence which was not proved.
[45] The plain language of s. 64(16) refers to another “entry concerning misconduct”, not alleged misconduct. The Act does not provide that a Notice of Hearing may be an entry in an officer’s employment record, nor did the Toronto Police Services enter the Notice of Hearing as an entry in P.C. Hampel’s employment record. The only other “entry” on the employment record referred to in the PSA relates to a finding of misconduct in s. 68(9), which addresses the issue of when an entry concerning misconduct may be made following a disciplinary hearing. Furthermore, the language of the statute makes clear that allegations are not misconduct until proven on clear and convincing evidence.
[46] With respect to the over-all scheme of the Act, it is clear that an informal procedure is available for minor misconduct under s. 64 if the officer consents or does not require a hearing; section s. 64(16) deals only with misconduct that is not of a serious nature where the officer does not require a hearing. In the context of this informal process, entries are optional for the Chief of Police, arise only if the officer has not required a hearing, and are time-limited. Such provisions encourage the parties to deal informally with less serious matters to prevent a permanent entry on the employment record. A finding of misconduct after a hearing, on the other hand, is a permanent entry on the officer’s employment record.
[47] To the extent that delay in a finding of misconduct after a hearing could result in entries being expunged under s. 64(16), the PSA distinguishes between the time-limited consequences for less serious misconduct through an informal process and the permanent consequences of entries concerning misconduct after a hearing only if proven on clear and convincing evidence.
[48] We are satisfied that the Commission’s interpretation of s. 64(16) of the PSA was reasonable based on a reading of s. 64 in light of its plain meaning and the overall context of the provisions of the PSA. We conclude that an “entry concerning misconduct” within the meaning of s. 64(16) does not include the laying of a charge or the service of a Notice of Hearing.
Conclusion
[49] The appeals are dismissed. Neither party sought costs.
Jennings J.
Wilson J.
Karakatsanis J.
Released: March , 2009