Aguiar v. Toronto Police Service, 2014 ONSC 207

CITATION: Aguiar v. Toronto Police Service, 2014 ONSC 207

DIVISIONAL COURT FILE NO.: 10/11

DATE: 20140109

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

WHALEN, LEDERMAN AND SACHS JJ.

BETWEEN:

POLICE CONSTABLE BRIAN AGUIAR (#7235)

Appellant

– and –

TORONTO POLICE SERVICE

Respondent

David Butt, for the Appellant

Ian Solomon, for the Respondent

HEARD at Toronto: January 9, 2014

SACHS J. (ORALLY)

Introduction

1The appellant appeals from a decision of the Ontario Civilian Police Commission (“the OCPC”) dated October 6, 2010. In that decision, the OCPC upheld the penalty of a one-year demotion in rank imposed by a Hearing Officer for the disciplinary offences of discreditable conduct and insubordination, contrary to the Code of Conduct under the Police Services Act, R.S.O. 1990, c.P-15.

2Both parties agree that the standard of review applicable on this appeal is reasonableness. Considerable deference is owed to a Tribunal’s decisions on penalty.

3On this appeal the appellant makes two submissions:

(i) That the penalty was unreasonable because it gave too much weight to the appellant’s prior disciplinary history, given that that history occurred 10 years prior to the offences at issue. As put by the appellant, the Hearing Officer erred in principle in failing to give sufficient weight to the 10 year gap in the appellant’s disciplinary record.

(ii) That the penalty was unreasonable because it failed to take into account the economic impact on this appellant of the penalty. Specifically, the appellant argued that his pension peaks at 35 years of service and is based on his last 5 years of service. He is of an age where the penalty will be served during his last 5 years of service. Thus, the degradation in rank will devalue the baseline of his pension, resulting in a decreased pension for the rest of his life. Again, the appellant submits that the failure to take into account this economic impact on him was an error in principle.

The Gap in the Disciplinary Record

The Gap in the Disciplinary Record

4On the issue of the appellant’s disciplinary record, the Hearing Officer had this to say at pages 12-13 of her decision:

I find that the seriousness of Constable Aguiar’s misconduct alone warrants a significant penalty and calls into question his usefulness as a Police Officer. Constable Aguiar’s discipline record is disturbing. In 1995 he was convicted of six Police Services Act offences involving disrespectful, defiant and insubordinate behaviour towards his Supervisors and failure to adhere to service governance. In 1996 he was convicted of five Police Services Act offences involving similar misconduct. Previous Senior and Hearing Officers had cautioned Constable Aguiar regarding the serious consequences should he choose to continue to engage in this type of misconduct.

Today Constable Aguiar is again facing a penalty for two more Police Service Act offences involving disrespectful, defiant and insubordinate behaviour towards his Supervisors and failure to adhere to service governance. Notwithstanding the ten year gap since his last Police Services Act convictions, I do not find that Constable Aguiar learned from his previous discipline, nor has he chosen to demonstrate a noteworthy potential for rehabilitation, although he is perfectly capable of doing so.

Constable Aguiar’s substantial discipline history is not offset by the thirteen positive entries in his personnel file. However, his clear discipline record between his last five Police Services Act convictions and the misconduct currently before the Tribunal will provide a degree of mitigation from the highest penalty range proposed by the Service Prosecutor.

I have weighed the submissions of both Defence Counsel and the Service Prosecutor as well as the tendered cases, and given careful consideration to each of the aggravating and mitigating elements to determine a penalty. The seriousness of the offences, the officer’s indifference to demonstrating a commitment to rehabilitation, his significant discipline history for similar misconduct and the requirement for specific deterrents (sic) weighed heavily in my decision.

5According to the appellant, these passages demonstrate that while the Hearing Officer purported to take into account the gap in the appellant’s disciplinary record, she did not in fact do so.

6We do not agree. The clear implication of the Hearing Officer’s decision is that, were it not for this gap, she would have considered imposing the more serious range of penalties suggested by the prosecutor, namely, a two year demotion in rank.

7The appellant asserts that the Hearing Officer should have treated the gap as demonstrating that the appellant has learned from his previous discipline and had rehabilitated himself. As put by the appellant at para. 19 of his factum:

The correct and fair approach would have been to observe that PC Aguiar appeared to be reverting to old behaviour patterns long ago left behind, and warn that any subsequent convictions would be a matter of grave concern. This approach would have struck the appropriate balance between acknowledging the distant past, without permitting it to unjustly drive the present result, and negate a ten year gap in his discipline record. As such, the hearing officer committed an error in principle.

8While, arguably, this was an approach that was open to the Hearing Officer, she took a different view. In her opinion, because the appellant engaged in the same type of behaviour that he had previously been disciplined for and because this behaviour was serious, committed in a planned and deliberate manner and contained elements of deceit, the appellant had not actually been rehabilitated, in spite of the passage of time. In her view, what the passage of time spoke to was the appellant’s capability of rehabilitation, but not the fact of his rehabilitation. The question for us is whether the Hearing Officer’s conclusions on this issue, which were upheld by the OCPC, were reasonable within the meaning articulated by the Supreme Court of Canada in Dunsmuir. In our view, they were.

The Economic Impact of the Penalty

The Economic Impact of the Penalty

9The appellant acknowledges that no evidence and no submissions were put before the Hearing Officer on this issue. According to the appellant, it was self-evident that there would be an impact on his pension, although he acknowledges he has no idea as to the financial extent of this impact.

10In our view, it is inappropriate to raise matters of fact for the first time on appeal, which could and should have been put before the Hearing Officer. In this case, while counsel for the appellant has made submissions about the particulars of the pension plan, there is no actual evidence about that plan.

11In the absence of any evidentiary record whatsoever, we cannot assess the impact of the issue on the appellant and we certainly cannot conclude that the Hearing Officer acted unreasonably in imposing a penalty without dealing with this issue, which, as noted, was never raised before her.

12In this regard, we find that the OCPC reasonably decided to uphold the Hearing Officer’s decision.

Conclusion

Conclusion

13For these reasons, the appeal is dismissed. The parties have agreed that there shall be no order as to costs.