CITATION: Gould v. Toronto Police Service, 2018 ONSC 4074
DIVISIONAL COURT FILE NO.: 581/16 DATE: 20180627
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, WHITTEN and GRAY JJ.
BETWEEN:
CONSTABLE GARY GOULD
Joanne E. Mulcahy, for the Applicant
Applicant
– and –
TORONTO POLICE SERVICE
Alexandra D. Ciobotaru, for the Respondent
Respondent
Matthew Peachey, for the Ontario Civilian Police Commission
HEARD at Toronto: June 27, 2018
Oral Reasons for Judgment
SWINTON J. (Orally)
[1] A Hearing Officer of the Toronto Police Service (“TPS”) imposed a penalty of dismissal on the Applicant, Constable Gary Gould, on September 21, 2015 after he pleaded guilty to unnecessary use of force against a person in custody. The Ontario Civilian Police Commission (the “Commission”) dismissed his appeal on September 30, 2016. He now applies for judicial review of the Commission’s decision.
[2] The standard of review in this application is reasonableness.
[3] The Commission applied the correct standard of review with respect to the appeal of the Hearing Officer’s decision - namely, reasonableness. It properly stated that it would not reweigh all the factors relevant to penalty. Instead, it considered the errors raised by the Applicant in the appeal and decided that there were indeed some errors made by the Hearing Officer. However, the Commission stood back and took a global view of whether the penalty imposed by the Hearing Officer was a reasonable one in view of all the circumstances. The Commission concluded that the errors of the Hearing Officer did not call into question the reasonableness of the penalty.
[4] The Hearing Officer had concluded that the Applicant was the aggressor in the incident leading to the assault. He committed very serious misconduct. Indeed, the Applicant concedes that the misconduct was very serious. The Hearing Officer concluded that the penalty of dismissal was warranted in light of the gravity of the misconduct, the fact that the Applicant provoked the response by the detainee, the damage to the reputation of the TPS, the public interest, the need for both general and specific deterrence and the Applicant’s disciplinary record.
[5] In our view, the Commission reasonably concluded that the errors made by the Hearing Officer were not so serious as to undermine the reasonableness of the penalty. While the Commission did not conduct a factor by factor analysis of the factors relevant to a penalty decision, its reasons demonstrate that the Commission was alive to all the relevant factors and shortcomings in the Hearing Officer’s decision.
[6] The Commission’s decision to uphold the dismissal was reasonable and available to it in the circumstances. It was not the task of the Commission to reweigh the evidence or revisit the weight accorded to the factors that are relevant to the penalty decision. Its task was to determine whether the decision of the Hearing Officer was reasonable in the circumstances. Similarly our task is to determine if the Commission’s decision was reasonable, and we conclude that it was.
[7] Accordingly, the application for judicial review is dismissed.
[8] I have endorsed the Application Record Volume 1 as follows: “This Application is dismissed for oral reasons delivered today. No party seeks costs.”
SWINTON J.
I agree
WHITTEN J.
I agree
GRAY J.
Date of Reasons for Judgment: June 27, 2018
Date of Release: June 28, 2018
CITATION: Gould v. Toronto Police Service, 2018 ONSC 4074
DIVISIONAL COURT FILE NO.: 581/16 DATE: 20180627
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, WHITTEN and GRAY JJ.
BETWEEN:
CONSTABLE GARY GOULD Applicant
– and –
TORONTO POLICE SERVICE Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: June 27, 2018
Date of Release: June 28, 2018