Court File and Parties
COURT FILE NO.: 240/05 DATE: 20060203
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Before: Cunningham A.C.J.S.C., Chapnik and Epstein JJ.
B E T W E E N:
DETECTIVE CONSTABLE JAMES BUCKLE Appellant
- and -
ONTARIO PROVINCIAL POLICE Respondent
Counsel: Gavin J. May, for the Appellant Jinan Kubursi, for the Respondent
HEARD: February 3, 2006
Oral Reasons for Judgment
CUNNINGHAM A.C.J.S.C.: (Orally)
[1] The appellant, Detective Constable Buckle, of the Ontario Provincial Police, was found guilty of four allegations of misconduct, contrary to s.2(1)(a) of the Code of Conduct.
[2] The misconduct was in relation to the misappropriation of approximately $4,000.00, in several transactions over the course of several months. The Hearing Officer found Buckle guilty of four of the five allegations contained in the charge, all of which related to fraudulent activity.
[3] The fifth charge, a very serious one involving $35,000.00, was dismissed. Nevertheless the Hearing Officer concluded that Buckle’s actions were not spontaneous, but rather protracted, deliberately deceptive and premeditated. The Hearing Officer concluded in the circumstances that the appropriate penalty should be dismissal forthwith.
[4] The Hearing Officer’s decision was appealed to and reviewed by the Ontario Civilian Commission on Police Services. After a review of the Hearing Officer’s decision and the case law, the Commission found no grounds to interfere with that decision.
[5] On a standard of review of reasonableness, which is accepted by all counsel in this case, this appeal is to determine whether the Commission properly considered all relevant factors in determining the appropriate penalty.
[6] As to the issue of penalty, which is the thrust of the appellant’s argument, the Commission did refer to consistency of penalties as an important consideration when reviewing the penalty imposed on Officer Cecchini. The differences between the activities of the two officers was considered by the Commission in reviewing the Hearing Officer’s decision. The Hearing Officer found that the forthwith dismissal penalty was consistent on a broad review of a number of other cases and the Commission found no basis upon which it should interfere.
[7] In our view, dismissal forthwith was clearly within a range of available penalties. The Commission found no basis to interfere with that decision. It is generally accepted that an employer is entitled to dismiss an employee for cause, in this case, fraudulent activity. The cases involving police demonstrate over the years that dismissal is, and can be an appropriate disposition in cases involving theft or fraud. As the Commission noted, the Delano case illustrates the view that police officers should be held to a higher standard than members of the public.
[8] In our view, the Commission properly considered all the relevant factors in determining penalty, including the finding of the Hearing Officer.
[9] As the Supreme Court of Canada stated in Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003], S.C.J. No. 17 at page 50:
“A decision will be unreasonable only if there is no line of analysis within the given reasons that would reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons taken as a whole are tenable as support for the decision. At all times, a court applying a test of reasonableness must assess the basic adequacy of the recent decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decisions which do not affect the decisions as a whole.”
[10] Our function on appeal is not to second-guess the Hearing Officer and indeed the Commission. While we might have decided otherwise, that is not the test. The test is whether the Hearing Officer and indeed the Commission fairly and impartially applied appropriate principles.
[11] In the case before us, the Hearing Officer identified all relevant factors in considering sentence. The Commission saw no basis upon which to interfere. We find no unreasonableness in the Commission’s decision not to interfere and the appeal is dismissed.
[12] No costs.
CUNNINGHAM A.C.J.S.C.
CHAPNIK J.
EPSTEIN J.
Date of Reasons for Judgment: February 3, 2006 Date of Release: February 10, 2006
COURT FILE NO.: 240/05 DATE: 20060203
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
cunningham a.c.j.s.c., chapnik and epstein jj.
B E T W E E N:
DETECTIVE CONSTABLE JAMES BUCKLE Appellant
- and -
ONTARIO PROVINCIAL POLICE Respondent
ORAL REASONS FOR JUDGMENT CUNNINGHAM A.C.J.S.C.
Date of Reasons for Judgment: February 3, 2006 Date of Release: February 10, 2006