CITATION: Durham Regional Police Service v. Sowa, et. al., 2019 ONSC 1902
DIVISIONAL COURT FILE NO.: 246/17
DATE: 20190328
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, THORBURN, and REID JJ.
BETWEEN:
DURHAM REGIONAL POLICE SERVICE
Applicant
– and –
POLICE CONSTABLE LEON SOWA
and
THE ONTARIO CIVILIAN POLICE COMMISSION
Respondents
Ian Johnstone and Alexander Sinclair, for the Applicant
Joanne Mulcahy, for the Respondent Sowa
Mathew Peachey and Kathryn Chung, for the Respondent Commission
HEARD at Toronto: January 31, 2019
REASONS FOR DECISION
Reid j.
OVERVIEW:
[1] The Durham Regional Police Service (“Durham”) has applied for judicial review of a decision of the Ontario Civilian Police Commission (the “Commission”) dated March 13, 2017. In it, the Commission considered an appeal brought by Police Constable Leon Sowa (“Constable Sowa”) of two decisions made by Hearing Officer Rollauer under Part V of the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”).
[2] In the first of the two decisions appealed to the Commission, the Hearing Officer found Constable Sowa guilty of insubordination, deceit, and two counts of discreditable conduct contrary to the Code of Conduct, O. Reg. 268/10 under the PSA. In the second, the Hearing Officer imposed a penalty of demotion from first-class constable to second-class constable for a period of 18 months.
[3] On appeal, the Commission confirmed the Hearing Officer’s findings of misconduct against Constable Sowa but varied the penalty to a forfeiture of 40 hours.
[4] Durham alleged that the Commission committed a reviewable error in its decision to reduce the penalty and requested that this court set aside the Commission’s decision as to penalty. Constable Sowa submitted that no reviewable error was made by the Commission and requested that this application be dismissed. The Commission took no position as to the proper disposition of this application but made submissions on the standard of review applicable to judicial review and to the Commission’s review of the Hearing Officer’s decision.
THE ISSUES:
[5] In this application, the court must determine the following issues:
a. What is the appropriate standard of review to be applied to the decision of the Commission?
b. Did the Commission err in finding that the Hearing Officer punished Constable Sowa twice for the same actions?
c. Did the Commission err in finding that the Hearing Officer failed to ensure consistency of disposition?
BACKGROUND FACTS:
[6] It is not the function of this court to review the facts and come to its own conclusion about an appropriate penalty for Constable Sowa. However, a review of the background facts is important for another purpose, namely to review the decision of the Commission, and particularly its conclusion that there was double punishment.
[7] Constable Sowa has been a member of the Durham Regional Police Service since 1995 and holds the rank of First Class Constable.
[8] In 2015, his duties included working on the front desk at the 18 Division police station.
[9] That station was also the main location at which individuals apply for and pick up criminal information record (“CIR”) applications. Those applications were processed by civilian staff during regular business hours, although members of the public could receive application forms, complete the forms, and pick up their completed record checks after hours from officers on duty.
[10] Staff Sgt. Bob Elliott observed that Constable Sowa was not fulfilling his obligations at the front desk and received complaints from other officers to the same effect.
[11] On January 21, 2014, Staff Sgt. Elliott ordered Constable Sowa to perform duties at the front desk, including providing assistance to members of the public with CIR applications. On January 29, 2014, Constable Sowa received training from another Constable as to the process for assisting members of the public with CIR requests.
[12] On January 30 and February 22, 2014, Constable Sowa dealt with members of the public concerning their CIR applications.
[13] On the first occasion, a person attended at the police station asking if she could have a vulnerable sector police check completed. According to her, she was told by Constable Sowa that the office was closed and that she would need to come back during regular office hours. She said she was not allowed to fill in the form and leave it with him. Her evidence was accepted by the Hearing Officer in preference to that of Constable Sowa, and as a result, his conduct was found to be discreditable.
[14] On the second occasion, Staff Sgt. Elliott instructed Constable Sowa to assist an individual concerning a CIR. The individual advised that he was there to obtain a police background check because he was starting a new job. He testified that Constable Sowa told him to return during regular business hours since the office was closed. The Hearing Officer accepted the person’s evidence over the version provided by Constable Sowa. Once again, the conduct was found to be discreditable.
[15] The Hearing Officer found that Constable Sowa’s failure on those two occasions to follow the orders received from Staff Sgt. Elliott about the processing of CIR applications was insubordination.
[16] In response to questions asked by Staff Sgt. Elliott immediately after the February 22, 2014 event, Constable Sowa advised that the person had been there only to pick up a completed CIR, and that since the office was closed and the completed form was not available, the person was told to return during regular business hours. Since the Hearing Officer accepted the evidence of the individual (as noted above), the statement by Constable Sowa to Staff Sgt. Elliott was found to be deceitful.
THE DECISION OF THE COMISSION:
[17] The Commission typically owes deference to the penalty decision of a Hearing Officer. It may only disturb a penalty on appeal if the penalty was unreasonable, that is, if it fell outside the range of reasonable outcomes or if it contained a clear error in principle or failed to consider relevant factors (Ontario Provincial Police v. Purbrick, 2013 ONSC 2276, 307 O.A.C. 97).
[18] In two specific respects, Commission concluded that the Hearing Officer committed an error in principle in determining an appropriate disciplinary penalty.
[19] First, as part of Hearing Officer’s decision on penalty, he considered the so-called “Kienapple principle” (referencing R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729) and concluded that it did not apply because the offences consisted of different essential elements and different actions. The Commission found that conclusion to be the first error in principle. It accepted the submission of Constable Sowa that he had been punished twice – that is, for insubordination and discreditable conduct – arising from the same set of facts, with the result being that the penalty imposed was harsh and excessive.
[20] Second, the Commission found that the Hearing Officer erred in principle in failing to consider consistency of disposition, which is one of the many factors that must be taken into account in imposing penalty. In his penalty decision, the Hearing Officer referred to and analyzed 12 discipline cases submitted to him. The Commission concluded that insufficient weight was given to one recent case, namely Ottawa Police Service v. Constable Kennedy (Ottawa Police Service Discipline Hearing, February 8, 2016).
[21] On the basis of those two alleged errors of principle, the Commission varied the penalty.
THE STANDARD OF REVIEW:
[22] The standard of review that applies to a decision of the Commission is reasonableness on questions of fact, mixed fact and law, and on those questions of law that relate to the interpretation of the Commission’s home statute (Ottawa Police Services v. Diafwila, 2016 ONCA 627, 352 O.A.C. 310, at para. 52).
[23] Durham submitted that, in reviewing the Commission’s application of the “Kienapple” principle, the applicable standard should be correctness because that principle arises from the realm of criminal law, which is outside the Commission’s expertise.
[24] I disagree. Although rooted in criminal law, the Kienapple principle is one of procedural fairness.
[25] Both before and after the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, courts have applied a reasonableness standard of review when considering the use by administrative tribunals of the Kienapple principle in matters of professional discipline (see for example: K.C. v. College of Physical Therapists of Alberta, 1999 ABCA 253, 244 A.R. 28; Merchant v. Law Society of Saskatchewan, 2014 SKCA 56, 438 Sask. R. 110; and Creager v. Provincial Dental Board of Nova Scotia, 2005 NSCA 9, 230 N.S.R. (2d) 48). There is no reason to apply a different standard in reviewing discipline decisions of the Commission made pursuant to its powers under the Police Services Act.
[26] Applying the principles for judicial review set out in Dunsmuir, I conclude that determining procedural fairness in the sentencing process is not outside the Commission’s expertise in interpreting or applying its home statute, nor is it a general question of law that is of central importance to the legal system as a whole. Therefore, I am satisfied that the standard of review to be applied throughout this case is reasonableness.
ANALYSIS:
[27] In applying the reasonableness standard, this court has a limited role. As determined in Purbrick at para. 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. [citations omitted]
[28] In this case, the court’s role is to determine whether the Commission acted reasonably in concluding that the Hearing Officer committed errors of principle. This task does not require the application of a reasonableness standard to each aspect of the Commission’s decision, but rather 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 and Purbrick, at para. 21). However, since the sole basis for the Commission’s conclusion rested on its consideration of two issues, a review of those issues is necessary.
Did the Commission err in finding that the Hearing Officer punished Constable Sowa twice for the same actions?
[29] Constable Sowa submitted that the one count of insubordination and the two counts of discreditable conduct were all related to his failure to complete CIRs and therefore he could not be sentenced on both. The Hearing Officer considered the Kienapple principle. He concluded that it did not apply to the matter because the offences had different essential elements and because they referred to different actions by the officer on two separate days.
[30] The Commission arrived at a different result. At paragraph 33 of its decision, the Commission found that the discreditable conduct and insubordination were supported by:
… the exact same set of facts or actions: the failure to assist the same two individuals with their CIR applications, outside regular office hours, contrary to what he had been ordered and trained to do.
In paragraph 34, the Commission observed that:
[the officer’s] failure to assist the two members of the public outside regular business hours (i.e. when the CIR office was closed) would not have been discreditable had he not been ordered to do so or in the absence of a policy or directive mandating that the applications be accepted when the CIR office is closed.
[31] The elements underlying the Kienapple principle were comprehensively set out by this court in Carruthers v. College of Nurses of Ontario (1996), 1996 11803 (ON SC), 31 O.R. (3d) 377, at pp. 395-396:
What underlies the rule invoked by the appellant is the principle that there ought not be multiple convictions for the same "delict""cause", or "matter": see R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480 at p. 488, 30 C.C.C. (3d) 35 at p. 41, per Dickson C.J.C.; and R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729 at p. 745, 15 C.C.C. (2d) 524 at p. 535, per Laskin J. In the context of criminal proceedings, if there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence charged in a second count, the rule against multiple convictions will be engaged: see R. v. Kienapple, supra, at p. 751 S.C.R., p. 539 C.C.C., per Laskin J.; and R. v. Prince, supra, at p. 488 S.C.R., p. 41 C.C.C., per Dickson C.J.C. The relevant inquiry is whether the same cause or matter, rather than the same offence, is comprehended by two or more offences: see R. v. Kienapple, supra, at p. 750 S.C.R., pp. 538-39 C.C.C., per Laskin J.; and R. v. Prince, supra, at p. 488 S.C.R., p. 41 C.C.C., per Dickson C.J.C.
The test for the application of the rule is not framed in terms of whether the offences charged were "the same offences" or included offences. It is formulated, rather, in terms of whether the same "cause""matter", or "delict" is the foundation for both charges: see R. v. Prince, supra, at p. 490 S.C.R., p. 42 C.C.C., per Dickson C.J.C. The jurisprudence also acknowledges that "offence", as used in the rule, is a term of art. One offence cannot be "the same as" or "included in" another offence, absent a precise correspondence in the respective definitions: see R. v. Prince, supra, at p. 490 S.C.R., pp. 42-43 C.C.C., per Dickson C.J.C.
The Kienapple rule erects no bar to several or a multiplicity of convictions, each in respect of a different factual event. There is no alteration of the principle that holds offenders criminally liable for each occasion on which they have transgressed the law. The rule is only engaged where the offences arise from the same transaction: see R. v. Prince, supra, at p. 490 S.C.R., p. 43 C.C.C., per Dickson C.J.C.
There must first be a factual nexus between the charges. For the rule to be implicated, the same act of the accused must ground each of the charges: see R. v. Prince, supra, at p. 492 S.C.R., p. 44 C.C.C., per Dickson C.J.C.
There must also be a sufficient legal nexus between the offences to sustain the application of the rule. The inquiry focuses upon the presence of distinguishing elements, not shared elements, to determine the applicability of the rule. The requirement of legal proximity is only met where there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded under the rule: see R. v. Prince, supra, at p. 498 S.C.R., p. 49 C.C.C., per Dickson C.J.C. [emphasis in original]
[32] I start by noting that the Kienapple principle is a rule against multiple convictions. Courts have held that in order to prevent an accused from being punished twice for the same cause or matter, the appropriate remedy is to stay the lesser of the two charges (see for example R. v. Allen, 2000 16954 (Ont. C.A.). In this case, the Commission did not stay any of the charges, and instead confirmed each of the findings of misconduct against Constable Sowa. Having said this, it is apparent that the driving force behind the Commission’s decision that the Hearing Officer had erred in principle in failing to apply the Kienapple principle is its concern that Constable Sowa had been punished twice for essentially the same offence, which, as noted, is the concern that drives the application of the Kienapple principle. Thus, I will go on to consider whether the Commission’s conclusion that the Hearing Officer punished Constable Sowa twice for the same matter was a reasonable one.
[33] In this case, there were three different offenses charged: insubordination, deceit, and two counts of discreditable conduct.
[34] The discreditable conduct happened as a result of Constable Sowa’s interaction with members of the public on each of January 30 and February 22, 2014. There can be no doubt that those are separate offences in that they arise from separate transactions. As noted above in Carruthers, the Kienapple principle does not prevent holding offenders liable for each occasion on which they have transgressed the law.
[35] The deceit charge arose when, on February 22, 2014, Constable Sowa was found to have misled Staff Sgt. Elliott as to the circumstances of the officer’s interaction with a member of the public on that date. It could be argued that the incident which gave rise to the deceit charge included the conversation with the civilian which was found to be discreditable conduct. However, that would conflate two separate transactions into one. Discreditable conduct (in one of the two counts) related to the substance of the interaction with the individual on February 22, whereas the offence of deceit related to the false information given to the supervising officer. Those are different factual events with different legal elements and as such, the same delict was not the basis for each of the charges.
[36] The single count of insubordination arose from Constable Sowa’s failure to follow Staff Sgt. Elliott’s direct orders regarding the action to be taken in response to inquiries by members of the public about CIR applications. That failure to follow orders was shown in the interaction between Constable Sowa and members of the public on January 30 and February 22, 2014.
[37] It appears that the Commission relied entirely on the factual nexus between the two offences in concluding that double punishment for the same action was imposed by the Hearing Officer. It failed to consider whether sufficient legal proximity also existed as mandated by the court in Carruthers. A proper inquiry would have been to ask if there were any additional and distinguishing elements that go to guilt contained in the discreditable conduct offences that were absent in the insubordination offence.
[38] Insubordination is legally grounded in the concept of disobedience. It is a significant, stand-alone offence in a para-military organization like a police service where maintenance of the chain of command is essential. Discreditable conduct, by comparison, can be found in a wide variety of circumstances, which legally relate to the failure on the part of an officer to comport her/himself in a manner that meets with legitimate public expectations.
[39] In this case, there is a lack of legal nexus between the offences based on those distinguishing elements.
[40] I conclude, based on the foregoing, that the Hearing Officer did not penalize Constable Sowa twice for the same actions. In deciding that he did so, the Commission acted unreasonably.
Did the Commission err in finding that the Hearing Officer failed to ensure consistency of disposition?
[41] There was no dispute between the Hearing Officer and the Commission that consistency of disposition is an appropriate factor to apply in assessing a proper penalty for misconduct. In the sentencing decision, 12 cases were analyzed by the Hearing Officer. The Commission disagreed with the Hearing Officer as to the appropriate weight to be ascribed to one of the 12, namely Ottawa Police Service v. Constable Kennedy (Ottawa Police Service Discipline Hearing, February 8, 2016). That case was both the most recent sentencing authority cited and the one in which the lowest penalty was assessed. The Commission did not criticize the Hearing Officer’s analysis of the other cases presented to him.
[42] In the Kennedy case, there was a plea of guilty to one count of discreditable conduct and one count of insubordination. A joint submission on penalty was accepted requiring a forfeiture of 48 hours pay and requiring professional counselling. The insubordination related to the officer’s failure to take proper notes in the course of an investigation, and the discreditable conduct related to his provision of inaccurate information during a trial when challenged by defence counsel about the reasons for not informing an accused of his right to counsel. The Hearing Officer found that the Kennedy case had few similarities with the Sowa matter. He noted that there was a plea of guilty and a joint submission which were elements that did not exist in the matter before him. He did not see a correlation between the insubordination of Constable Sowa as to the orders of Staff Sgt. Elliott and the insubordination in Kennedy which related to failure to record sufficient information regarding an impaired driver who had allegedly struck a cyclist and fled the scene. He noted the absence of a deceit conviction in the Kennedy case. The Hearing Officer did not have details about the inaccurate information apparently provided in court by Constable Kennedy.
[43] At paragraph 43 of its decision under review, the Commission stated:
Constable Kennedy was found guilty of discreditable conduct for lying under oath in a criminal court. [Constable Sowa] was found guilty of deceit for lying to Staff Sgt. Elliott. Lying under oath, which is tantamount to perjury, is a more serious offence than lying to a supervisor. However, Constable Kennedy received a penalty of 48 hours forfeiture whereas [Constable Sowa] was demoted for 18 months.
[44] The Commission went on to observe in paragraph 44 that:
The penalty imposed on [Constable Sowa] was considerably harsher than the penalty imposed on Const. Kennedy, whose circumstances were similar except that one of his convictions (lying under oath) was more serious than the appellant’s conviction for deceit.
[45] Clearly, the assumption by the Commission that Constable Kennedy lied under oath was significant when it compared the penalties imposed. In fact, however, the agreed statement did not identify lying under oath but stated that Constable Kennedy “provided inaccurate information when challenged by defence counsel about the reasons for not providing [the accused] with his right to counsel without delay.”
[46] The initial aspect of misconduct, that Constable Kennedy had not taken notes of his interview with the accused during the course of his investigation, fed the second problem: his provision of inaccurate information in court. There was no suggestion that there was a deliberate intention to mislead, as is the case with lying under oath and perjury.
[47] A significant component of the Commission’s comparison of the Kennedy case with that of Constable Sowa was based on a factual misunderstanding. Further, the Commission failed to afford sufficient deference to the Hearing Officer’s bases for finding that the Kennedy case had little relevance to the case at bar: namely, the fact that the penalty in Kennedy was the result of a joint submission after a plea of guilty.
[48] Therefore, I find the Commission’s conclusion that the Hearing Officer gave insufficient weight to the Kennedy case when he considered consistency of disposition to have been unreasonable.
CONCLUSION:
[49] The Commission varied the decision of the Hearing Officer as to penalty because Constable Sowa had been punished twice (as to insubordination and discreditable conduct) based on the same set of facts, and because insufficient weight had been given to one penalty decision with the result that the penalty imposed was harsh and excessive.
[50] I note that the penalty imposed by the Hearing Officer was a global one. He did not break down the penalty as amongst the several different counts. Arguably, the deceit count was the most serious, followed by the insubordination and then the discreditable conduct.
[51] I have reviewed the decision of the Commission to determine if it was reasonable.
[52] I have concluded that the Commission misapprehended the facts in the Kennedy decision and failed to give sufficient deference to the other factors that caused the Hearing Officer to give little weight to that decision. As well, it misapplied the principle against multiple convictions by failing to consider the lack of legal nexus between the offences of insubordination and discreditable conduct. Either of those errors would have been sufficient to make the Commission’s decision unreasonable.
[53] As a result, I find the decision of the Commission to have been unreasonable and it is therefore set aside and the decision of the Hearing Officer is restored. By agreement of the parties, there will be no order as to costs.
Reid J
Sachs J
Thorburn J. J
Released: March 28, 2019
CITATION: Durham Regional Police Service v. Sowa, et. al., 2019 ONSC 1902
DIVISIONAL COURT FILE NO.: 246/17
DATE: 20190328
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, THORBURN, and REID JJ.
BETWEEN:
DURHAM REGIONAL POLICE SERVICE
Applicant
– and –
POLICE CONSTABLE LEON SOWA
and
THE ONTARIO CIVILIAN POLICE COMMISSION
Respondents
REASONS FOR DECISION
REID J.
Date of Release: March 28, 2019