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Police - Police Services Act - Ontario Civilian Police Commission (OCPC). Cudney, #254 v St. Thomas Police Service
In Cudney, #254 v St. Thomas Police Service (Div Court, 2023) the Divisional Court considered the test for 'discreditable conduct' of a police officer: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. . Cudney, #254 v St. Thomas Police Service
In Cudney, #254 v St. Thomas Police Service (Div Court, 2023) the Divisional Court considered a police discipline JR against an appeal ruling of the Ontario Civilian Police Commission (OCPC). In this quote the court sets out the SOR that applies to OCPC disciplinary sanction decisions:[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.
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[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. . Wells v. Cornwall Police Service
In Wells v. Cornwall Police Service (Div Court, 2022) the Divisional Court heard a JR of an appeal decision of the Ontario Civilian Police Commission, here regarding the termination of a police officer for misconduct. This quote deals with the penalty decision:The Disposition
[22] The applicant’s submission on penalty is framed and reframed in several ways with multiple reasons. However, his submissions all come down to an assertion that termination of employment is unreasonable because it is unduly and unnecessarily harsh. He points to mitigating facts and circumstances, the Commission’s failure to specifically address the “ladder” principle, an undue emphasis on a previous misconduct disposition and the Commission’s “rejection” of the Hearing Officer’s conclusion that the public would be “shocked” if Constable Wells were allowed to remain on the police force given his misconduct history.
[23] The applicant acknowledges that the standard of review on penalty sets the bar quite high. Before the Commission, he must demonstrate a “clear error in principle” or that relevant material facts were “not considered”. See Karklins v Toronto (City) Police Service, [2010] ONSC 747 at para. 10. The Commission is not to second guess the Hearing Officer’s decision even if it might have imposed a different penalty, unless the Hearing Officer failed to fairly or impartially apply the considerations listed by both the Hearing Officer and the Commission in their respective decisions. Again, this Court must determine whether the Commission reasonably upheld the penalty decision.
[24] The “ladder principle”, in employment law probably more appropriately labelled as the principle of progressive discipline, does not rule out termination of employment for new misconduct that is less serious than prior misconduct. The Hearing Officer and the Commission both demonstrate in their reasons an understanding that the incidents occurring on this one shift in September 2018 were not so serious as to warrant termination of employment but for the very serious prior misconduct and the penalty imposed for that misconduct. The applicant had been found to have committed serious misconduct in a 2016 decision and he was demoted from Constable Fourth Class to Constable First Class – the most serious penalty short of dismissal. In the present proceeding, problems of honesty, integrity and trustworthiness were regarded as persisting problems.
[25] Though the Commission did “not necessarily agree” with the word “shocked” in the Hearing Officer’s characterization of how the public would perceive the continued employment of Constable Wells, it nevertheless agreed with him that there was a “potential for damage” to the reputation of the Police Service in continuing his employment.
[26] The Commission addressed all the applicant’s other specific challenges to the Hearing Officer’s decision in detail and explained (paras. 49 to 67) its conclusion that “the Hearing Officer did not make such errors in principle that would justify our interfering with the penalty imposed”. It is unnecessary for the court to repeat paras. 49 to 67 of the Commission’s reasons. Suffice it to say the Commission explained why the Hearing Officer’s decision to terminate Constable Wells’ employment was “reasonable”. Its explanation also meets the reasonableness standard and is entitled to deference on judicial review.
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