CITATION: Cudney, #254 v. St. Thomas Police Service, 2023 ONSC 3443
COURT FILE NO.: 28/21
DATE: 20230608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Fregeau, Varpio, and Nishikawa JJ.
BETWEEN:
CONSTABLE STEVEN CUDNEY, #254
L. Reidy, for the Applicant
Applicant
– and –
ST. THOMAS POLICE SERVICE
I. Johnstone and A. Johnstone, for the Respondent
V. Crystal for the Ontario Civilian Police Commission
Respondent
HEARD at London by ZOOM: April 27, 2023
reasons for decision
fregeau J.
Introduction
[1] On November 10, 2020, a Hearing Officer found the applicant guilty on two counts of discreditable conduct contrary to s. 2(1)(a)(xi) of the Code of Conduct under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”). On March 21, 2021, the Hearing Officer ordered that Constable Cudney be demoted from first-class constable to fourth-class constable pursuant to s. 85(1) of the PSA.
[2] Constable Cudney appealed both the findings of misconduct and the penalty imposed to the Ontario Civilian Police Commission (the “OCPC”). On November 16, 2021, the OCPC upheld the Hearing Officer’s decisions and dismissed Constable Cudney’s appeal.
[3] The applicant seeks judicial review of the November 16, 2021 decision of the OCPC, requesting that the misconduct findings be set aside, or alternatively, a reduction in the penalty imposed.
[4] The issue before the Court is whether the OCPC unreasonably dismissed the applicant’s appeals from the November 10, 2020, and March 21, 2021 decisions of the Hearing Officer. For the following reasons, the application for judicial review is dismissed.
Standard of Review
[5] The standard of review to be used by the Divisional Court when reviewing decisions of the OCPC is one of 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: Durham Regional Police Service v. Sowa, et. al., 2019 ONSC 1902 at para. 22 citing Ottawa Police Service v. Diafwila, 2016 ONCA 627, at para 52.
[6] As submitted by the OCPC, the focus of this application for judicial review is on the OCPC’s reasons. The Divisional Court does not conduct its own review of the Hearing Officer’s reasons. This was clearly articulated in this court’s decision in Husseini v. York Regional Police Service, 2018 ONSC 283, at para. 31, citing Ontario Provincial Police v. Favretto, 2004 34173 (ON CA), [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:
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.
[7] A reasonableness standard of review is meant to “ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.” A reasonableness review “finds its starting point in judicial restraint” and respect for the distinct role of administrative decision-makers, such as the OCPC: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 13.
[8] In Wells v. Cornwall Police Service, 2022 ONSC 5460 (Div. Ct.), the Divisional Court, at para. 7, commented on the reasonableness standard of review following Vavilov:
…it is abundantly clear that a review is not a hearing de novo and that before setting aside a decision the court (or the Commission) must be satisfied that the identified shortcomings are sufficiently serious that they are central and significant to the outcome and the chain of reasoning.
[9] It is settled law that a high degree of deference is owed on judicial review of a tribunal’s choice of penalty. The reasonableness of the OCPC’s decision to confirm the Hearing Officer’s choice of penalty must be assessed considering the deference owed on penalty.
[10] In Dr. Jonathon Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), this court commented at paras. 17-18 on the high threshold for overturning a tribunal’s penalty decision:
It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit”. The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances.
[11] Accordingly, this court applies a reasonableness standard to the OCPC’s review of the Hearing Officer’s choice of penalty. In doing so, regard must be had for the high threshold to be met before the OCPC will interfere with a Hearing Officer’s choice of penalty.
Overview
[12] A brief review of the background facts is necessary to address the issues raised by Constable Cudney on this application.
[13] The applicant and his wife (“Cathy”) separated in 2018 and were in the midst of a difficult divorce proceeding at the time of the incident that led to the misconduct charges. The applicant had moved out of the family home and Cathy continued to reside in the home with their two daughters. The family home was jointly owned, and Cathy did not have an order for temporary exclusive possession of it.
[14] The applicant had arranged with Cathy to attend the home on October 26, 2019, in order to clean and close the swimming pool. It was understood that the applicant was to attend when Cathy was not present. One of the couple’s daughters was to let Cathy know when the applicant had finished with the pool work and had left the property.
[15] The pool work took longer than expected and the applicant was dirty after completing it. He therefore decided to take a shower before leaving the property. The applicant asked one of his daughters to text Cathy to let her know that he was going to do so.
[16] Prior to going upstairs to shower, the applicant observed two piles of mail on the kitchen table. He took some of the mail from one of the two piles and put it in his backpack which he then placed in the bedroom adjoining the shower area. According to the applicant, the mail that he placed in his backpack was either addressed to him or to him and Cathy jointly, the latter consisting of bills that he was responsible to pay.
[17] The applicant observed Cathy arrive home before he entered the shower. He asked one of his daughters to make sure that Cathy stayed away from him. While showering, the applicant heard a noise, exited the shower clad only in a towel and observed Cathy in the hallway with his backpack. According to the applicant’s evidence, he grabbed one of the straps of the backpack and at the same time pushed Cathy’s shoulder. Cathy fell to the floor.
[18] Cathy called 911 and officers attended. Following an investigation, the applicant was charged with assaulting Cathy. This charge was withdrawn when the applicant entered into a peace bond.
[19] The applicant was charged with two counts of discreditable conduct contrary to s. 2(1)(a)(xi) of the Code of Conduct under the PSA as follows:
Count #1: Discreditable Conduct
Constable Steven Cudney committed discreditable conduct in that on or about October 26, 2019, he did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the St. Thomas Police Service, thereby committing the offence of discreditable conduct, contrary to Part V, s. 80(1)(a) of the PSA and section 30, clause 2(1)(a)(xi) of the Schedule “Code of Conduct”, Ont. Reg. 268/10, as amended.
The particulars of this allegation are that on October 26, 2019, members of the Middlesex Ontario Provincial Police detachment arrested and charged Cst. Cudney with assault, contrary to s. 266 of the Criminal Code following a physical and verbal altercation with his ex-wife at the matrimonial home. Local and national news outlets have reported on this case and identify the officer as a member of the St. Thomas Police Service.
Count #2: Discreditable Conduct
Constable Steven Cudney committed discreditable conduct in that on or about October 26, 2019, he did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the St. Thomas Police Service, thereby committing the offence of discreditable conduct, contrary to Part V, s. 80(1)(a) of the PSA, and section 30, clause 2(1)(a)(xi) of the Schedule “Code of Conduct”, Ontario Regulation 268/10, as amended.
The particular of this allegation are that on October 26, 2019, Cst. Cudney’s off-duty conduct and remarks were in violation of item #5 of the St. Thomas Police Service policy, “Complaints Against Police” (HR-02) which states:
Members of the Police Service must, at all times, whether on-duty or off-duty, refrain from conduct or remarks which may be interpreted in a way that is detrimental to themselves, the Police Service, the City of St. Thomas or any other person or agency involved in the administration of justice. A violation of this declaration of concern and intent by a member of this Police Service will result in disciplinary action against that member.
Discussion
1. The treatment of the hearsay evidence by the Hearing Officer
[20] Much of the evidence before the Hearing Officer was documentary and hearsay, including a report from the internal investigation overseen by Staff Sergeant Bogart and reports from various OPP officers involved in the arrest of the applicant. The statement given by Cathy to the OPP on October 26, 2019 was not included in that report. The Hearing Officer was instead provided with a summary of Cathy’s statement. Staff Sgt. Bogart also testified as to his interactions with Cathy.
[21] The OCPC identified the issues concerning the Hearing Officer’s treatment of the hearsay evidence raised by the applicant on appeal, including:
- The hearsay evidence was blatantly unreliable and prejudicial;
- The hearsay evidence went to the central issue of provocation and defence of property;
- Cathy should have been called as a witness to provide direct evidence;
- The investigating officers should have been called as witnesses;
- The applicant was entitled to cross-examine Cathy and the investigating officers;
- The prosecution was entirely dependent on Cathy’s double hearsay utterances;
- There was no direct evidence that the applicant had stolen mail, acted inappropriately in entering the matrimonial home, or provoked the altercation.
[22] The OCPC carefully considered the applicant’s arguments concerning the Hearing Officer’s treatment of the hearsay evidence and provided comprehensive reasons for rejecting them.
[23] First, the OCPC recognized that pursuant to section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, hearing officers have the discretion to admit hearsay evidence and that the weight given to hearsay evidence is also within their discretion and deserving of deference on appeal.
[24] The OCPC noted that the applicant’s counsel at the hearing did not take issue with the admission of any of the hearsay evidence and did not seek leave to cross-examine any investigating officers or Cathy.
[25] The OCPC reviewed the reasons of the Hearing Officer as a whole and concluded that the various items of hearsay evidence were properly addressed in the context of the specific issues the Hearing Officer was required to adjudicate upon, specifically the nature of the “exchange” between the applicant and Cathy outside the bathroom door.
[26] The OCPC made the following observations as to the Hearing Officer’s treatment of the hearsay evidence:
- The Hearing Officer placed no weight on “statements” from the applicant’s two daughters, in the form of emails to the applicant’s hearing counsel, because neither of them witnessed or heard the “exchange”;
- The Hearing Officer placed no weight on Cathy’s hearsay evidence alleging that she was “picked up and [thrown] against the door frame” by the applicant;
- The Hearing Officer did not need to, and did not, rely on the hearsay evidence to decide the “central issue” before him – did the actions of the appellant amount to discreditable conduct – because there was “more than sufficient evidence from the applicant himself to decide that issue”.
[27] This latter point was dealt with at length by both the Hearing Officer and the OCPC. The OCPC noted that the Hearing Officer explained in his reasons that the applicant, in both his compelled statement and his testimony, acknowledged that he had pushed his estranged wife at the same time he took his backpack from her possession, which caused her to fall to the floor and resulted in a minor injury to the left side of her back.
[28] The Hearing Officer’s admission of the hearsay evidence and the weight, if any, he attached to the hearsay evidence, were matters within his discretion. The OCPC comprehensively reviewed the Hearing Officer’s treatment of the hearsay evidence and provided logical and cogent reasons for rejecting the applicant’s appeal as it related to the Hearing Officer’s treatment of the hearsay evidence. In my view, the OCPC acted reasonably in doing so.
2. The alleged errors of fact made by the Hearing Officer
[29] The OCPC summarily rejected the numerous alleged errors of fact the applicant suggested were made by the Hearing Officer, including primarily that the Hearing Officer erred when he referred to the mail as “her mail” and the family residence as “her residence”.
[30] The OCPC referred to the alleged factual errors as “issues of semantics” that did not “in any way impact the Hearing Officer’s conclusion as to the nature of the physical altercation between the applicant and his estranged wife.” The OCPC reiterated that the nature of this physical altercation was proven by the applicant’s own evidence – he pushed Cathy, she fell to the floor, and she sustained a minor injury. Implicit in this conclusion is that any alleged errors of fact were completely immaterial.
[31] In my opinion, the OCPC’s conclusion on this issue was entirely reasonable.
3. Did the facts as found by the Hearing Officer meet the test for discreditable conduct
[32] The OCPC reviewed the test for a finding of discreditable conduct as set out by the Hearing Officer: whether a reasonable member of the community, fully aware of the facts, would find that the conduct would likely discredit the reputation of the St. Thomas Police Service if it were to become public knowledge.
[33] The OCPC noted that the Hearing Officer expressly stated that, in the absence of evidence as to the expectations of the community, he was required to use his own judgment and place himself in the position of a reasonable person fully apprised of the facts to determine if the test had been met.
[34] The OCPC reviewed the Hearing Officer’s application of the test to the facts and his conclusion that the applicant “needlessly used physical force on Cathy and that a reasonable person would agree that this conduct would damage [the] reputation of the St. Thomas Police Service.” The OCPC concluded that “based on the evidence before [the Hearing Officer], this was a reasonable conclusion.”
[35] In my view, given the facts as found by the Hearing Officer and as confirmed by the OCPC on appeal, the OCPC’s decision to confirm the Hearing Officer’s conclusion that the test for discreditable conduct had been met was reasonable.
4. The reasonableness of the penalty imposed
(a) The Kienapple principle
[36] The Hearing Officer rejected the applicant’s submission that the Kienapple principle applied and precluded him from being punished twice for the same conduct. In its review of this issue, the OCPC noted that “more importantly” the Hearing Officer concluded as follows:
However, I do not find it fitting to increase the sanction because there are two findings of discreditable conduct; the behaviour could have been appropriately included as two distinct particulars under one count of misconduct. I will determine a suitable sanction based on Cst. Cudney’s behaviour, he initiated an unwarranted physical confrontation with his estranged spouse which breached internal policy.
[37] The OCPC concluded that the Hearing Officer’s approach caused no prejudice to the applicant.
[38] My interpretation of the Hearing Officer’s reasoning regarding Kienapple, is that firstly, the principle does not apply to police disciplinary hearings and, secondly, that in any event, the penalty he imposes relates to a single factual finding – the applicant’s interaction with Cathy.
[39] The OCPC concluded that the Hearing Officer’s approach resulted in no prejudice to the applicant and therefore dismissed this ground of appeal. I find the OCPC’s conclusion on this issue to have been reasonable.
(b) The penalty imposed
[40] I note that the OCPC devoted 10 pages of a 22-page Decision to its review of the penalty imposed by the Hearing Officer, who himself drafted a 48-page decision on penalty. It is apparent that both the Hearing Officer and the OCPC considered this issue thoroughly and comprehensively.
[41] I further note that the reasonableness of the OCPC’s decision to confirm the Hearing Officer’s choice of penalty must be assessed considering the broad discretion on hearing officers in regard to sanction and the particularly high degree of deference to be employed on a review of a tribunal’s choice of penalty.
[42] The Hearing Officer considered and rejected the prosecutor’s suggestion that Cst. Cudney be dismissed. The Hearing Officer considered the issue of provocation as a factor on disposition. The OCPC noted that provocation was not a “typical disposition factor” but that the Hearing Officer considered it at the request of the applicant. Ultimately, the Hearing Officer determined that it was irrelevant.
[43] The OCPC addressed the applicant’s submission that the Hearing Officer placed inordinate weight on aggravating factors, in particular the applicant’s employment history. The OCPC found that there was a “rational basis for the Hearing Officer’s conclusion” that the applicant’s employment history was a “substantial aggravating factor”. Based on my review of the OCPC’s summary of both the positive and negative aspects of the applicant’s employment history, I find the OCPC’s conclusion on this point to be reasonable.
[44] The Hearing Officer concluded that the nature and seriousness of the applicant’s misconduct was a significant aggravating factor. The OCPC found that the Hearing Officer had fully explained the basis for this finding and that it saw no reason to disagree with the Hearing Officer on this point. This was a reasonable conclusion.
[45] The OCPC devoted significant time and attention to the Hearing Officer’s consideration of the principle of parity, referred to as “consistency of penalty” by the OCPC. When doing so, the OCPC once again instructed itself that “subject to any errors in principle that affect the penalty imposed, the ultimate issue for the Commission to consider is whether the penalty is reasonable”.
[46] The OCPC ultimately concluded that the demotion ordered by the Hearing Officer, “while at the extreme end of the range of appropriate penalties, was, nevertheless, within that range”. The OCPC’s function when considering a hearing officer’s choice of penalty is to assess whether the hearing officer fairly and impartially applied the relevant dispositional principles to the case before them. The OCPC can only vary a penalty decision where there is a clear error in principle or relevant material facts are not considered.
[47] My review of the OCPC’s consideration of the penalty imposed on the applicant by the Hearing Officer confirms that the OCPC clearly understood that it cannot “lightly” decide to vary a penalty. The OCPC’s conclusion that the demotion ordered by the Hearing Officer was within the range of appropriate penalties recognized the high degree of deference owed to the Hearing Officer’s choice of penalty and was, in my view, reasonable.
Disposition
[48] The judicial review application is dismissed. The applicant is to pay the respondent, St. Thomas Police Service, costs fixed in the amount of $5000. The respondent, OCPC, is not seeking costs.
“Fregeau J.”
“I agree: Varpio J.”
“I agree: Nishikawa J.”
Released: June 8, 2023
CITATION: Cudney, #254 v. St. Thomas Police Service, 2023 ONSC 3443
DIVISIONAL COURT FILE NO.: 28/21
DATE: 20230608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CONSTABLE STEVEN CUDNEY, #254,
Applicant
ST. THOMAS POLICE SERVICE,
Respondent
REASONS FOR DECISION
Fregeau J.
Released: June 8, 2023