CITATION: Toronto Police Service v. Costa, 2019 ONSC 1503

DIVISIONAL COURT FILE NO.: 708/17

DATE: 2019-03-04

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: TORONTO POLICE SERVICE, Applicant

AND: CONSTABLE DANIEL COSTA, Respondent

BEFORE: SACHS, THORBURN and BALE JJ.

COUNSEL: Alexandra D. Ciobotaru for the Applicant Mark J. Sandler and Amanda M. Ross for the Respondent Trevor Guy and Shannon McDunnough for Ontario Civilian Police Commission

HEARD at Toronto: March 4, 2019

ORAL ENDORSEMENT

NATURE OF THE PROCEEDING

[1] The Applicant seeks judicial review of the decision of the Ontario Civilian Police Commission (the "Commission") in which the Commission varied the penalty imposed by the Hearing Officer. The Respondent, Constable Costa, pled guilty to one count of deceit and one count of insubordination. At the Toronto Police Service Discipline Hearing, the Hearing Officer imposed a penalty of dismissal. The Respondent appealed the penalty to the Commission. The Commission identified four errors in principle that the Hearing Officer had made in his decision and, as a result, they set aside his decision and varied the penalty to forfeiture of nine days' pay for the conviction of insubordination (all parties agreed that this penalty was appropriate for the insubordination alone), and suspension without pay for thirty days followed by a demotion to the rank of fourth class constable for a period of two years for the conviction of deceit. The Applicant requests an order setting aside the decision of the Commission and reinstating the penalty imposed by the Hearing Officer.

FACTUAL BACKGOUND

Deceit

[2] The Respondent has been a member of the Toronto Police Service ("TPS") since December 2009. On July 2, 2011, a homicide occurred in York Region, whereupon the York Regional Police Service ("YRPS") Homicide Squad commenced an investigation. The Respondent's brother, Michael Costa, became a person of interest, although not a suspect, in the investigation, as he was having an affair with the deceased's wife.

[3] Following the homicide, Michael Costa expressed fear for his personal safety, and on July 5, 2011, the Respondent purchased his brother a one-way ticket to Rome, departing on the evening of July 7, 2011.

[4] On July 7, 2011, at 3:11 pm, Michael Costa was interviewed by YRPS investigators. He denied any involvement in or knowledge of the murder, but admitted that he was having an affair with the deceased's wife and expressed concern that he might have been the target of the killing. He did not want to cooperate with police because he lacked confidence in their ability to protect him, as he had previously been a victim of an unsolved knife attack. Michael Costa was not being detained by police, and they had not given him any instructions not to leave town, nor did they ask if he intended to do so.

[5] After the interview, Michael Costa met with the Respondent, who drove him to the airport for his 8:00 pm flight to Italy. At 9:37 pm, the Respondent met with YRPS homicide investigators to be interviewed.

[6] The interview was videotaped and he was given a KGB warning. Investigators questioned the Respondent on the whereabouts of his brother. On six occasions during the interview when investigators asked about Michael Costa, the Respondent denied any knowledge of his brother's whereabouts or activities.

[7] On the morning of July 8, 2011, the Respondent met with his counsel, who then provided investigators with a letter from the Respondent indicating that he wished to correct inaccurate information that he had provided to the police the day before. The Respondent then told police that he had purchased his brother's ticket, driven him to the airport, and that he was now in Italy.

[8] On July 22, 2011, the Respondent attended a Professional Standards interview with his counsel. He admitted that he had been untruthful during his interview on July 7 and had provided false information. On October 6, 2011, YRPS criminally charged the Respondent with perjury. He was subsequently acquitted of that charge.

Insubordination

[9] The Professional Standards Unit of the TPS initiated an internal investigation into the Respondent and conducted an audit of his computer activity. The audit found that on January 5, 2011, the Respondent conducted a person query of his brother. The query was not part of his duties, but rather "[h]e accessed CPIC [the Canadian Police Information Centre] and other TPS records of contacts with Michael Costa for his personal interest”.

[10] During his interview with Professional Standards on July 22, the Respondent admitted that he conducted the query at the request of his brother and that it was done for his personal interest. His brother had been the victim of an assault, but had yet to receive any information from YRPS and had been receiving emails and phone calls from the suspect.

[11] The Respondent was suspended with pay as of July 20, 2011.

THE DECISION OF THE COMMISSION

[12] A summary of the Commission's reasons for setting aside the Hearing Officer's decision on penalty is contained in para. 27 of its decision, which reads:

27. In coming to the penalty that he did, the Hearing Officer erred in principle by considering the following factors as aggravating features .in the course of determining the appropriate penalty:

i. First, he mischaracterized the appellant’s admission of having made a "mistake" as being an attempt to minimize the seriousness of the initial misconduct.

ii. Second, his finding that the appellant had created a "risk that a dangerous offender would not be apprehended in a timely fashion or would not be brought to justice" was speculation and not an available finding on the evidence before him.

iii. Third, he improperly relied on the fact that the respondent had suspended the appellant as evidence of the aggravating nature of the misconduct. This was not based on any evidence and raised concerns about the Hearing Officer's independence and impartiality.

iv. Fourth, he appeared to have held the appellant accountable for the erosion in public trust caused by inaccurate media reporting about the case.

[13] The Commission also found that the penalty of dismissal "imposed by the Hearing Officer was outside the reasonable range for misconduct of the nature and character that occurred in this case."

[14] As already indicated, the Commission decided that the appropriate disposition was a forfeiture of pay for the insubordination and a 30 day suspension and two year demotion for the deceit. In coming to this conclusion, the Commission reviewed the relevant case law, distinguished those cases where dismissal had been imposed for deceit and found that the following factors mitigated the penalty that should be imposed: the Respondent admitted his untruthfulness the next day; there was no evidence that his untruthfulness interfered with the investigation; the Respondent demonstrated remorse and showed a potential for rehabilitation when he came forward with the truth within a matter of hours before any charge was laid.

THE APPLICANT'S POSITION

[15] The Applicant made three submission on this judicial review. First, it argued that the Commission erred when it found that the Hearing Officer had made any errors in principle and, if there were any such errors, they were not significant enough to justify setting aside the Hearing Officer's decision. Essentially, the Applicant stated that the Commission simply did its own reweighing of the necessary factors and, in so doing, did not give appropriate deference to the Hearing Officer's decision. Second, the Applicant argued that the Commission did not consider the Hearing Officer's decision in light of the record and the parties’ submissions, thereby violating the principles set out in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2001] SCR 708 (“Newfoundland Nurses”). Third, the Commission, in imposing the penalty it did, failed to adequately consider the public interest and, specifically, the fact that once convicted of deceit the Respondent would be the subject of a McNeil report every time he is called to testify in court.

STANDARD OF REVIEW

[16] The parties accept that the standard of review that we must apply to the Commission's decision is reasonableness.

[17] The parties also accept (as did the Commission) that when it comes to penalty decisions the Commission is not entitled to "second guess the Hearing Officer or substitute [its] own opinion". Absent an error in principle or the failure to consider relevant material facts, the Commission cannot interfere with the Hearing Officer's decision, even if it might have come to a different conclusion. Once the Commission finds that there are errors in principle that go to the core of the Hearing Officer's decision, the Commission may set aside that decision and substitute a penalty of its own. The Commission is also entitled to set aside a Hearing Officer's penalty decision if falls outside the range of possible reasonable outcomes.

WAS THE COMMISSION'S DECISION THAT THE HEARING OFFICER HAD COMMITTED ERRORS IN PRINCIPLE A REASONABLE ONE?

[18] In order to assess the significance of the errors identified by the Commission it is helpful to keep in mind the principles articulated by the Commission in the leading case of Favretto v. Ontario Provincial Police, 2002 ONCP 3 about the penalty of dismissal (this case was relied upon by the Hearing Officer):

A penalty must be tailored to both punish and deter while not causing undue or excessive hardship. The penalty of dismissal is the ultimate penalty. It should be reserved for the most serious offences committed by a police officer where there is no hope for rehabilitation, there are no significant mitigating factors and where the police officer is of no further value to the police service or the community in general.

The Mischaracterization of the Respondent’s Admission that He Made a Mistake

[19] In a letter that the Respondent provided to YRPS on July 8, 2011 (the morning after his interview) he stated that some of the information that he had provided during his interview was "inaccurate". When he was interviewed by Professional Standards, the Respondent characterized his actions as a "mistake". In his decision, the Hearing Officer repeatedly found that these characterizations demonstrated a failure to recognize the seriousness of his misconduct and an attempt to minimize the seriousness of that misconduct. The Hearing Officer then went on to find the following in terms of the Respondent's potential for rehabilitation (a key factor in determining whether dismissal is the appropriate remedy):

In regards to the potential to reform or rehabilitate Constable Costa because of his characterization of his misconduct in a number of instances as being mistakes or having provided inaccurate information as well as minimizing the gravity thereof, I am not convinced that it has been demonstrated that he has the potential to reform or be rehabilitated.

[20] When the Respondent was being interviewed by Professional Standards, he was asked if he had any explanation for his misconduct. He replied by referring to the fact that he had been sleep deprived, had barely eaten, and was under stress. The Hearing Officer commented on this as follows:

Constable Costa made excuses to Professional Standards investigators indicative of minimization stating that he had been given short notice, had been sleep deprived, had barely eaten, and was under stress.

[21] The Hearing Officer clearly took into account what he regarded as the Respondent's attempt to "excuse" his behaviour as another sign that he did not have the potential to be rehabilitated.

[22] In considering the Hearing Officer's decision in this regard, the Commission noted that the prosecutor had never suggested to the Hearing Officer that the use by the Respondent of the words "mistake" or "inaccuracies" should be regarded as an attempt by the Respondent to minimize his conduct. The Commissioner also noted that the prosecutor admitted that the Respondent was entitled to provide an explanation for his conduct. The prosecutor simply pointed out to the Hearing Officer that that explanation could not be regarded as an excuse.

[23] The Commission also found that the Hearing Officer made seemingly inconsistent findings of fact about the letter that was provided on July 8, 2011. In one part of his reasons the Hearing Officer stated that it demonstrated the Respondent had not recognized the seriousness of his conduct. In another part of his reasons the Hearing Officer stated that it demonstrated the opposite.

[24] The Commission concluded that "The Hearing Officer appeared to be fixated on the [Respondent] and his counsel using the word "mistake", a matter of semantics, rather than the [Respondent's] acknowledgment of the seriousness of the misconduct set out above."

[25] Given the fact that the Respondent acknowledged his misconduct hours after he committed it; that no one suggested that the July 8, 2011 letter or his answers to Professional Standards were false in any way; that he pled guilty; that he gave a written statement apologizing for his conduct; that in that apology he described his conduct as "serious" and that he instructed his counsel to seek a very serious penalty short of dismissal, the Commission reasonably concluded that the Hearing Officer erred in principle in focusing on the use of the words "mistakes" and "inaccuracies" as a key basis for finding that the Respondent was not capable of rehabilitation.

Unreasonable Finding of Risk Created to the Investigation

[26] In his decision the Hearing Officer found that Constable Costa "interfered with an ongoing homicide investigation." He also stated that the Respondent's “failure to be truthful created a risk that a dangerous offender would not be apprehended in a timely fashion or would not be brought to justice”. In the case law on penalty it is clear that misconduct that interferes with an investigation is a serious aggravating factor.

[27] The Commission found that the Hearing Officer erred in principle when he made the findings, he did about the impact of the Respondent’s conduct on the investigation. At para. 37 of its decision it states:

The difficulty with that comment is that it was not supported by any evidence. The YRPS had already interviewed Michael Costa. He was not a suspect and was not warned to stay in the country. He returned voluntarily for a second interview. The appellant advised the YRPS of his brother's whereabouts the following morning. No one from the YRPS was called to testify that the appellant's lies about not knowing where his brother was somehow imperiled the investigation or contributed to the risk found by the Hearing Officer. The finding was simple speculation that should not have been used in an attempt to support the appellant's dismissal. This amounted to an error in principle.

[28] In our view, the Commission's findings on this issue were entirely reasonable.

Unreasonable Reliance on the Fact of Suspension

[29] At page 69 of his reasons the Hearing Officer states as follows:

37. It is noteworthy that Constable Costa has been under suspension since these events came to light in July, 2011. The suspension was confirmed by the Chief of Police and has remained continuously in effect which underscores the seriousness of the misconduct and the manner in which it has been treated by the Service. The suspension of a Service member is not undertaken lightly and is only confirmed when the risk to having the member remain in service outweighs the ability to assign them to any duty. Regular reviews are conducted and risks are assessed by senior Service management to determine if the member can be reinstated and in this case no viable options were available to allow him to return to active duty.

[30] The Commission found as follows with respect to this aspect of the Hearing Officer's decision:

39. The Hearing Officer was appointed by the respondent's Chief of Police in accordance with the procedures set out in the PSA. There was no evidence presented as to why the suspension was maintained, which evidence may not have been admissible in any event. In our view, it was unfair to the appellant for the Hearing Officer to rely, even in part, on a decision made by others not called to testify to justify his ordering the dismissal. We agree with the appellant that doing so undermined any semblance of independence and impartiality on the part of the Hearing Officer.

40. We do not agree with the respondent's characterization of the Hearing Officer's reliance on the fact of the suspension as being a "benign" error. In our view, it was more of an infectious error, one that permeated the decision.

[31] The Applicant submitted before us that the Hearing Officer's comments about the Respondent being suspended were simply matters of fact that both parties acknowledged. The problem with this submission is that the Hearing Officer's reasons go beyond acknowledging the fact of the suspension. They drew an inference from this fact - namely that the continued suspension of the Applicant demonstrated that he could not be returned to active duty (another significant factor when it comes to considering whether to order dismissal).

[32] The Commission reasonably found that drawing this inference from the Chief of Police and senior service management's actions called into question the independence of the Hearing Officer. His job was to make an independent and impartial decision about whether the Respondent could be of any further use to the service. It was not to base his decision on what the Chief of Police or the senior staff had done, especially since there was no evidence about why they had done what they had done; the Chief of Police appointed the Hearing Officer and the Chief of Police was prosecuting the Respondent.

[33] The Commission's finding that this error on the part of the Hearing Officer was not benign was also a reasonable one.

Undue Emphasis on Media Reports

[34] The Hearing Office in his reasons acknowledged that some of the media reports about the Respondent’s conduct were inaccurate, but found that "they caused a widespread erosion of public trust due to significant public interest in this matter in light of Constable Costa's occupation as a police officer."

[35] The Commission agreed that inaccuracy in reporting should not be a basis for concluding that the reputation of the Police Service has been tarnished, but found that, even if accurately reported, the Respondent's actions would have caused some harm to the Service's reputation. Thus, the Commission did “not consider that the Hearing Officer's reliance on an inaccurate media report was an error that, in and of itself, would justify setting aside the penalty decision."

[36] Again, there is nothing unreasonable about this conclusion. Further, it serves to demonstrate that the Commission was alive to the distinction between an error that goes to the heart of a decision and one that does not.

FAILURE TO FOLLOW NEWFOUNDAND NURSes

[37] Newfoundland Nurses is a case that applies when the issue before the court is one of sufficiency or adequacy of reasons. It is agreed that this is not such a case. Therefore, the Applicant’s submissions on this point are irrelevant

FAILURE TO FOCUS ON THE PUBLIC INTEREST

[38] The Applicant submits that the Commission, in imposing its penalty, failed to sufficiently acknowledge the significant public interest involved when an officer has committed an act of deceit and will therefore be the subject of a McNeil report every time he goes to testify.

[39] The Commission dealt with this issue at para. 72 of its reasons:

72. In varying the penalty of dismissal, we recognize that the appellant, like any other officer convicted of deceit, or any other type of misconduct, would be the subject of a McNeil report every time he is called to testify in court. He will be subject to cross-examination on his disciplinary record. However, in this case we do not see that as a basis for the dismissal.

[40] In effect, the Commission decided that in spite of the concern about McNeil, the other factors at play in the Respondent's case did not justify dismissal. In coming to this conclusion it had regard to the caselaw, which included cases where other officers who had been convicted of deceit were not dismissed. In view of the several mitigating factors in the Respondents' case, it was not unreasonable for the Commission to conclude that his case was also a case where dismissal was not warranted.

[41] The Applicant also argued that the Commission unreasonably concluded that dismissal was not within the range of reasonable penalties in this case. In view of our findings that the Commission reasonably concluded that the Hearing Officer made errors in principle that justified it substituting its own penalty, there is no need to deal with this argument.

CONCLUSION

[42] For these reasons the application for judicial review is dismissed.

[43] I have endorsed the Application Record as follows: “This application is dismissed for reasons given orally by Sachs J. Since no one is requesting costs there will be no order as to costs.”

SACHS J.

I agree _______________________________

THORBURN J.

I agree _______________________________

BALE J.

Date of Reasons of Judgment: March 4, 2019

Date of Release: March 7, 2019