Ontario Provincial Police v. Purbrick, 2013 ONSC 2276
CITATION: Ontario Provincial Police v. Purbrick, 2013 ONSC 2276 DIVISIONAL COURT FILE NO.: 338/11 DATE: 20130416
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MOLLOY, HAMBLY AND HERMAN JJ.
BETWEEN:
ONTARIO PROVINCIAL POLICE Appellant
– and –
PROVINCIAL CONSTABLE C.S. PURBRICK, #7318 Respondent
COUNSEL: Jinan Kubursi, for the Appellant Joanne E. Mulcahy, for the Respondent
HEARD at Toronto: April 16, 2013
MOLLOY J. (orallY)
The Appeal
[1] This is an appeal from the decision of the Ontario Civilian Police Commission (“the Commission”) dated May 25, 2011.
[2] The Commission itself was sitting on appeal from the penalty decision of Hearing Officer M. P. B. Elbers dated July 5, 2010, in which the Hearing Officer ordered the immediate dismissal of Constable Purbrick from the Ontario Provincial Police. The officer had previously pleaded guilty to discreditable conduct charges filed against him under the Police Services Act. Therefore, the only issue to be determined by the Hearing Officer was the appropriate penalty.
[3] On appeal, the Commission found the decision of the Hearing Officer to be unreasonable. The Commission substituted a penalty of demotion to 4^th^ Class Constable with limits placed on the timing and circumstances of any promotions and subject to conditions with respect to monthly therapy sessions with a psychologist or psychiatrist for a period of two years.
Background
[4] The respondent police officer has been a member of the OPP in the community of Glencoe since 1988. He has no prior discipline record. During surveillance on three dates between June 2, 2008 and July 12, 2008, Officer Purbrick was observed purchasing gas with an OPP credit card while on duty, which he filled into portable containers and then transported to his home or car. None of the gas he purchased was used for OPP purposes.
[5] On July 15, 2008, Officer Purbrick was arrested at the end of his shift at the Glencoe OPP Detachment, while in his personal vehicle. In the vehicle were found two rolls of toilet paper and 33 garbage bags that Officer Purbrick had taken from the Detachment without authority.
[6] Constable Purbrick was charged with four counts of theft under $5,000, contrary to s. 334 of the Criminal Code, three of which were related to the theft of gasoline and the fourth of which was related to the theft of the office supplies. He was also charged with discreditable conduct under the Code of Conduct, which proceeded to a hearing under the Police Services Act.
[7] On May 29, 2009, Officer Purbrick pled guilty to the four charges under the Criminal Code. He was granted an absolute discharge on November 18, 2009, by Justice Webster of the Ontario Court of Justice. He was required to make restitution in the sum of $243.86 to the OPP, which sum represented the cost of gas he pumped into portable fuel containers on the dates he was under surveillance.
[8] On the disciplinary charges, a penalty hearing was held over 15 days between September 25, 2009 and May 13, 2010. More than 23 witnesses testified and 41 exhibits were entered into evidence. On July 5, 2010, the Hearing Officer released his decision on the issue of penalty. He ordered that Officer Purbrick be immediately dismissed from the OPP.
Jurisdiction and Standard of Review
[9] The jurisdiction of this Court to hear the appeal from the Commission in this case is found in s. 71 of the version of the Police Services Act, which was in force on October 18, 2009, which stated as follows:
71(1) A party to a hearing held by the Commission under subsection 65(9) or section 70 may appeal the Commission’s decision to the Divisional Court within 30 days of receiving notice of the Commission’s decision.
(2) An appeal may be made on a question that is not a question of fact alone, from a penalty imposed or from any other action taken, or all of them.
[10] The appellant submits that the applicable standard of review for this Court to apply in considering the decision of the Commission is reasonableness on questions of mixed fact and law and correctness on questions of law. The respondent submits that the standard is reasonableness on both issues.
[11] The authorities relied on by the appellant with respect to a correctness standard for questions of law, predate the Supreme Court of Canada’s seminal decision in Dunsmuir v. New Brunswick, [2008] S.C.C. 9. In light of Dunsmuir and subsequent decisions, in particular Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 35. C.R. 654, we find that even on questions of law where related to interpretations of its home statute, the standard of review may be reasonableness. The one area in which a standard of correctness may apply is on questions of law not within the special area of expertise of the Commission.
[12] It is not necessary for us to determine precisely what such issues might attract the higher standard of correctness, if any.
[13] In this case, the appellant is not relying on any errors of law by the Commission. Rather, the appellant takes issue with the Commission’s analysis of questions of mixed fact and law and argues that the Commission’s decision is unreasonable in that regard.
[14] The role of the Divisional Court in reviewing decisions of the Commission is considerably more restricted than the role of the Commission in reviewing decisions of a Hearing Officer. The Commission’s powers on appeal from the Hearing Officer are set out in s. 70 of the Police Services Act, which provides:
s. 70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held by the chief of police under subsection 64(7) or by the board under subsection 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.
s. 70(6) The Commission may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be.
[15] The Commission correctly set out the relevant standard of review it was required to apply with respect to findings made by the Hearing Officer. The Commission found that a reasonableness standard applied to factual findings and a correctness standard applied to “the interpretation of the law.”
[16] The Commission set out several further principles relating to the standard of review:
[O]ur role on an appeal is not to second-guess the decision of the Hearing Officer, but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence, and are articulated in a logical manner….
In certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle or relevant sentencing factors have been ignored….
An appeal to the Commission is an appeal on the record. Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence…
(Decision of the Commission, p. 22, paras. 40-42, citations omitted)
[17] It must be noted that it is not the role of the Divisional Court to review the decision of the Hearing Officer. It is not our role to determine if the Hearing Officer was correct, or even reasonable. Our sole focus is to determine whether the Commission, in its review of the Hearing Officer, acted reasonably: see OPP v. Favretto, [2004] O.J. No. 4248, 72 O.R. (3d) 681 (C.A.), at para. 50; leave to appeal refused [2004] S.C.C.A. No. 562.
Analysis
[18] We find no error by the Commission in identifying the test to be applied or how it should go about its task. It correctly stated the general principles to be applied in reviewing a decision about penalty.
[19] The Commission found three significant errors in the Hearing Officer’s decision, which it stated at para. 43 of its reasons as follows:
In reviewing the Hearing Officer’s decision we find that significant errors were made. Specifically, we have determined that:
The decision contains significant findings which are unreasonable in the face of the evidence.
The Hearing Officer failed to appropriately consider the testimony given by the character witnesses.
The Hearing Officer failed to consider the relevant penalty factors in reaching his decision.
[20] The Commission then did a careful analysis of the Hearing Officer’s decision under the following headings: Character Evidence; Findings of the Hearing Officer; Public Interest; Recognition of Seriousness of Misconduct; Employment History; Ability to Reform or Rehabilitate the Offender; Damage to the Reputation of the Police Force; and Consistency of Penalty.
[21] Our task is not to go through each one of these headings and determine whether the Commission’s analysis on each meets a reasonableness standard. Rather, it is appropriate for us to consider whether the Commission’s decision, taken as a whole, is reasonable: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247.
[22] Applying this test, we find that the Commission’s decision is, in fact, reasonable.
[23] In particular, as noted by the Commission, the Hearing Officer seems to have disregarded the overwhelmingly positive character evidence and to have discounted that evidence for factual reasons that appear to be incorrect. The Commission had similar reservations about the Hearing Officer’s findings on whether the officer recognized the seriousness of his own misconduct, pointing to the Hearing Officer’s focus on irrelevant medical issues such as the officer’s diagnosis of Post-Traumatic Stress Disorder (PTSD) and whether there was a cause and effect between the officer’s PTSD, alcohol dependence and depression and the offences he committed. The Commission also expressed reasonable concerns with how the Hearing Officer dealt with the issue of rehabilitation, which again was flawed by the way he treated the medical evidence and the apparent failure to consider relevant evidence such as prior good conduct and significant steps to address the mental health issues. Further, the Commission raised reasonable issues with respect to the Hearing Officer’s failure to articulate the appropriate test for imposing the penalty of dismissal.
[24] It was reasonable for the Commission to treat all of the difficulties with the Hearing Officer’s decision as being cumulative. Even if the deficiencies in one area might not be enough to warrant reversing the Hearing Officer, looked at altogether, the situation can be quite different.
[25] The Commission did not find that the adequacy of the Hearing Officer’s reasons was a stand-alone ground for reversal. Rather, it considered the Reasons in considerable depth, including what was covered by the Hearing Officer and what was not. In our view, what the Commission was doing, essentially, was determining whether those Reasons could support the reasonableness of the Hearing Officer’s decision. We find this analysis to be supported by the principles established under Dunsmuir and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 35. C.R. 708.
[26] In short, while each and every aspect of the Commission’s decision might not withstand scrutiny, looked at as a whole, the Commission’s decision shows a reasonable basis for setting aside the decision of the Hearing Officer.
[27] Further, the penalty imposed by the Commission is reasonable having regard to all of the circumstances including the strong mitigating factors, the prospects for rehabilitation, and parity with other similar situations. We see no basis for interfering with the Commission’s decision in that regard.
Conclusion
[28] In the result, this appeal is dismissed. There will be no order as to costs as the respondent does not seek any.
MOLLOY J.
HAMBLY J.
HERMAN J.
Date of Reasons for Judgment: April 16, 2013
Date of Release: April 22, 2013
CITATION: Ontario Provincial Police v. Purbrick, 2013 ONSC 2276 DIVISIONAL COURT FILE NO.: 338/11 DATE: 20130416
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MOLLOY, HAMBLY AND HERMAN JJ.
BETWEEN:
ONTARIO PROVINCIAL POLICE Appellant
– and –
PROVINCIAL CONSTABLE C.S. PURBRICK, #7318 Respondent
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: April 16, 2013 Date of Release: April 22, 2013