Court File and Parties

CITATION: Constable I. Karklins v. The Chief of Police - Toronto, 2010 ONSC 747

DIVISIONAL COURT FILE NO.: 461/07

DATE: 20100129

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Constable Imants Karklins, Appellant

AND:

The Chief of Police, Toronto Police Service, Respondent

BEFORE: MOLLOY, DAMBROT and SACHS JJ

COUNSEL: Harry G. Black, for the Appellant

Robert Fredericks, for the Respondent

HEARD: January 14, 2010

ENDORSEMENT

[1] This is an appeal from the decision of the Ontario Civilian Commission on Police Services (the “Commission”) dated September 25, 2007. The Commission dismissed the appeal of Police Constable Imants Karklins and upheld the decisions of Superintendent N. Tweedy (the “hearing Officer”), who found Karklins guilty of discreditable conduct under the Police Services Act and imposed the penalty of resignation within seven days or dismissal. The Appellant appeals both the conviction and the penalty.

[2] The misconduct arose from Karklins’ issuance of and failure to serve six traffic tickets and a Notice of Suspension on Antonio Ferreira and his subsequent actions in this regard. As a result, Ferreira was convicted in absentia of driving under suspension, fined $15,000 and sentenced to 15 days in prison. He was later incarcerated for five days before the wrongful conviction was discovered.

Natural Justice and Procedural Fairness

[3] The Appellant submits that the Commission erred in failing to find a breach of the principles of procedural fairness and natural justice by the Hearing Officer. Specifically, the Appellant argues that Karklins was charged with failure to serve six summons and that the Hearing Officer went beyond the subject matter of the charges to find Karklins guilty of “other” wrongdoing. We do not agree.

[4] The Hearing Officer found that Karklins concocted an intricate tale in an attempt to prove that he had actually served the tickets on Ferreira and his subsequent actions were innocent. The Hearing Officer found that Karklins’ testimony was not credible and that his actions deliberately resulted in Ferreira’s wrongful conviction. The Hearing Officer found Karklins guilty of the charge of discreditable conduct and concluded that he had annulled his usefulness to the Toronto Police Service.

[5] The Notice of Hearing alleges misconduct by issuing but not serving the summonses resulting in Mr. Ferreira being convicted in absentia and further alleges that these actions were likely to bring discredit upon the Toronto Police Service. The Hearing Officer was entitled, and indeed required, to consider all of the circumstances surrounding the failure to serve the six summonses and Mr. Ferreira’s resulting wrongful conviction. Further, the Hearing Officer was required to consider the defence of innocent error asserted by the Officer. The Hearing Officer did not believe Karklins’ testimony and gave cogent reasons for that determination. He concluded that this was not a mistake, but rather deliberate conduct. This was a determination that was within the four corners of the complaint against Karklins as it was particularized. The findings of “other” wrongdoing were not independent determinations of additional, unrelated breaches, but rather part of the factual findings and decision making surrounding the failure to serve the summons. It was merely the context in which the events occurred and was treated as an aggravating factor, not as a separate ground of misconduct. Haviing regard to the Notice of Hearing, the particulars, the pre-hearing disclosure made to him, his pre-hearing interview, the nature of the allegations and the nature of the defence he advanced, Karklins could not conceivably have been in doubt about what conduct of his was under consideration at the hearing.

[6] The Commission correctly defined this issue and found no breach of procedural fairness. We would not defer to a decision of the Commission on a question of procedural fairness if we were of the view that the commission was wrong, and that there was a breach of procedutral fairness at the hearing. Here, however, we see no such breach. We agree entirely with the Commission’s conclusions in that regard.

[7] It would have been preferable if disclosure been given to Karklins prior to the hearing with respect to the settlement reached with Ferreira in his civil action for damages. However, we do not see the failure to do so as a breach of procedural fairness vitiating the entire proceeding. Karklins and his counsel were aware of the lawsuit and could easily have requested information as to the status of the action prior to undertaking cross-examination of Ferreira, if that was such a critical issue to the nature of the cross-examination. Once the information about the settlement came out in re-examination, counsel for Karklins sought only to have the charges against him dismissed. A more realistic remedy for the non-disclosure would have been to request a further cross-examination on this issue. That remedy was not sought. Further, if the fact that Ferreira had reached a settlement of his claim had been known prior to the hearing, the same basis for challenging the credibility of his testimony would have existed; he would still have had the same monetary incentive to assert his version of the events from the outset, and it could then be shown that he had received a monetary reward for that version without a judicial determination of the issue. In any event, the Hearing Officer was alive to the possible incentive of Ferreira to falsify his evidence and the possibility of animus towards Karklins as a result of having spent those days in jail. The Hearing Officer gave cogent reasons for accepting the credibility of Ferreira. Not every technical breach of the rules for disclosure will result in quashing the result of a hearing. In this case, the breach was minor and would not have affected the result.

Findings of Misconduct

[8] The Commission carefully considered the findings of the Hearing Officer and concluded that his decision was a reasonable one and consistent with the evidence. In large measure, the Hearing Officer’s factual conclusions were based on findings of credibility, which were entitled to considerable deference. Where his determinations were based on inferences drawn from the evidence, there was a reasonable basis upon which to draw the inferences. The Commission applied the correct test and reached a reasonable conclusion. We see no basis to interfere with any of the Commission’s determinations in this regard, just as the Commission found no basis to interfere with the Hearing Officer’s conclusion that Karklins was guilty of the charge of discreditable conduct.

Penalty

[9] On the issue of penalty, the standard of review is reasonableness. The Commission was required to observe deference to the decision of the Hearing Officer and it did so. In that process however, the Commission carefully considered the evidence before the Hearing Officer, the findings of the Hearing Officer, the factors he considered, and whether the penalty was a reasonable one in all of the circumstances.

[10] At the outset, the Commission correctly described its role on a penalty appeal:

The role of the Commission on a penalty is well established. Our function is not to second guess the Hearing Officer or substitute our opinion. Rather, it is to assess whether or not the Hearing Officer fairly and impartially applied the relevant dispositional principles to the case before him or her. We can only vary a penalty decision where there is clear error in principle or relevant material facts are not considered. This is not something done lightly.

[11] The Commission then noted that the Hearing Officer had correctly described the key elements to be taken into account when assessing penalty, including the seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the police force if the officer remained on the force. Other relevant factors were also considered, including Karklins’ employment history, his lack of recognition of the seriousness of his misconduct, his personal circumstances, the need for deterrence and the need for consistency in penalty.

[12] The Commission carefully analyzed the Hearing Officer’s 21-page penalty decision, his summary of factual findings, and his detailed analysis of the relevant sentencing principles. The Commission agreed that Karklins’ misconduct was at the “highest end of the serious spectrum”, due to the unconscionable incarceration of an innocent man. The Commission also agreed that the Hearing Officer was correct in placing Karklins’ misconduct in context by examining all of the events leading up to Ferreira’s conviction.

[13] We do not agree with the Appellant’s submission that the Hearing Officer improperly imposed a penalty for conduct that was not the subject of the proceeding. The Hearing Officer considered all of the surrounding circumstances in determining the appropriate penalty including the existence of aggravating factors such as dishonesty. This was appropriate.

[14] It is simply not the case that this officer’s honesty and integrity were not brought into question by the nature of the charge against him. He swore an affidavit that he served the six summonses, and testified to the same effect at Mr. Ferreira’s ex parte trial. This was found to be a lie. By his wrongdoing he caused an innocent man to spend five days in jail for something he had no notice of, had no meaningful trial for, and did not do. This strikes as the heart of the justice system and was properly considered as doing so by the Hearing Officer and the Commission.

[15] Constable Karklins was fully aware that his honesty and integrity would be central issues at the penalty phase. Indeed, the central submission made by his own counsel was that he was a police officer of very high moral character. The Hearing Officer was not required to agree with that and indeed was entitled, on the whole of the evidence, to reach the opposite conclusion.

[16] Some of the language used by the Hearing Officer in describing the test for dismissal was not ideal. However, the essence of his decision demonstrates that he understood and applied the correct test. The Commission dealt with this issue appropriately in its Reasons. The Commission noted that dismissal “is reserved for the most egregious cases where the potential for rehabilitation is poor and the usefulness of the officer to the service is effectively spent.” The Commission also commented that “there may well be singular acts of misconduct that strike to the heart of the employment relationship and effectively exhaust an individual’s potential usefulness to perform the key duties of a police officer. Such singular acts may raise obvious concerns with respect to character.

[17] The Commission noted that the Hearing Officer had properly considered and applied the principle of progressive discipline and concluded that there were parallels between Karklins’ circumstances and the facts in Parent v. Hawkesbury Polce Service, a decision of the Commission dated October 6, 1997. That was a reasonable conclusion.

[18] We do not agree with the submission of counsel for Karklins that the Hearing Officer, and the Commission, erred by imposing a harsher penalty on Karklins because he failed to plead guilty to the charge against him. When the reasons of the Hearing Officer are looked at as a whole, it is apparent that the lack of remorse (as might have been indicated if there had been a guilty plea) was treated as the absence of a mitigating factor rather than an aggravating factor. After reviewing the background of the offence and the evidence with respect to Karklins’ work history and character, the Hearing Officer started from the premise that this offence was at the “highest end of the spectrum” and serious enough to warrant a consideration of the penalty of dismissal. He then reviewed the aggravating factors, which were significant. It was only then that the Hearing Officer considered whether there were any mitigating factors that would temper the situation, thus perhaps warranting a less severe penalty.

[19] In this regard, the Hearing Officer referred to Karklins right to defend himself before the tribunal, but stated, “he cannot expect, nor will he receive the mitigation of a guilty plea.” That is a correct statement of the law and it was correctly considered and appropriately applied. The Hearing Officer found insufficient mitigating factors to warrant departing from the dismissal penalty. That was a determination that was open to him on the evidence and which is entitled to deference.

[20] It was open to the Hearing Officer to consider whether Karklins was remorseful for his actions, not to punish him for defending the charges but as a consideration of the likelihood of his rehabilitation and fitness to serve as a police officer. It was also relevant to a consideration of whether his last minute offer of an apology was indeed a genuine one.

[21] In this regard, the Hearing Officer correctly analyzed the decision in Ontario Provincial Police v. Favretto (2004), 72 O.R. (3d) 681 (C.A.), recognizing that every attempt should be made to consider the possibility of rehabilitation, particularly where an officer has a good employment record, unless the offence is egregious and unmitigated. In spite of this, the Hearing Officer concluded that Karklins could not be rehabilitated:

On the balance, I am of the opinion the Service needs to be concerned about the future conduct of Police Constable Karklins, self-reflection has not concerned, supervision and training has not helped. Unlike Favretto the officer’s conduct was far from a spontaneous act.

Having weighed and balanced the mitigating and aggravating factors I have arrived at the conclusion the officer has annulled his usefulness. There was a plan to convict Mr. Ferreira, the behaviour was deliberate and continuing, and as such, I do not see how the work history of the officer alone, can mitigate sufficiently to prevent dismissal.

[22] In coming to their conclusions on penalty, the Hearing Officer and the Commission were aware of and took into account the principle of consistency in penalty decisions. They noted that there were no cases with a strong similarity to this situation, a point which was also made by counsel before us. The Hearing Officer and the Commission appropriately considered cases that were both less serious and more serious than the situation involving Karklins. They did not ignore the possibility of lesser sanctions, but rather considered them carefully and rejected them for cogently stated reasons.

[23] The Hearing Officer’s conclusion that Karklins was beyond rehabilitation was a key part of his decision and encompassed a number of sub-factors, including Karklins’ lack of remorse, his lack of empathy for Ferreira, his failure to recognize or understand the seriousness of his misconduct, his past disciplinary behaviour resulting from a similar lack of regard for members of the public and his ongoing usefulness as a police officer. These are all relevant factors that the Hearing Officer was entitled to take into account.

[24] The Hearing Officer and the Commission did not disregard the positive evidence supporting Karklins, including the many letters of reference and the offer of a position at 55 Division. These were taken into account but found not to be sufficient to overcome the aggravating factors warranting dismissal. That is a question of weight with which we cannot interfere.

[25] The Hearing Officer and the Commission are uniquely situated to consider whether a person found guilty of misconduct can appropriately continue to serve a useful role within the police force. Their decisions in this regard are entitled to considerable deference. There was no error in principle in arriving at the appropriate penalty. Given the particular circumstances of this case, the penalty of dismissal is not manifestly excessive and does not amount to an injustice. The penalty of dismissal is within the range of accepted and acceptable penalties for misconduct of this nature and the reasons of both the Commission and the Hearing Officer stand up to probing examination. Although a lesser penalty may also arguably fall within this range, that is not a sufficient reason in itself to interfere with either the Hearing Officer’s or the Commission’s decision.

Conclusion

[26] Accordingly, this appeal is dismissed. The parties agree that there shall be no order as to costs.

MOLLOY J.

DAMBROT J.

SACHS J.

Released: January 29, 2010