Fingers v Calgary (Police Service), 2005 CanLII 92637 (AB LERB)
| Date: | 2005-03-15 |
| File number: | 018-04 |
| Citation: | Fingers v Calgary (Police Service), 2005 CanLII 92637 (AB LERB), <http://canlii.ca/t/hnqv5>, retrieved on 2019-01-09 |
- Cited by 0 documents
No. 018-04
LAW ENFORCEMENT REVIEW BOARD
|
IN THE MATTER OF the PoliceAct, R.S.A. 2000, c.P-17, and the Regulations.
AND IN THE MATTER OF the Appeal of Cst. N. Many Fingers (No. 2676) of the Calgary PoliceService concerning the findings and the penalty imposed by the Presiding Officer under the Police Service Regulation (AR 356/90)
JUDGMENT OF THE BOARD
(Shelley/Cunningham/Wilcox)
|
BACKGROUND
The appellant was originally charged with the following allegations of misconduct:
Count 1. Insubordination, in that between January 10, 2001 and April 18, 2001, the appellant omitted or neglected, without adequate reason, to carry out a lawful order, directive, rule or policy of the commission, the Chief of Police or other person who had the authority to issue or make that order, directive, rule or policy, by disobeying the direct order of a superior officer to cease and desist any and all investigations, computer searches and phone calls pertaining to his private business affairs while on duty;
Count 2. Insubordination, in that between December 1, 2000 and April 18, 2001, the appellant omitted or neglected, without adequate reason, to carry out a lawful order, directive, rule or policy of the commission, the Chief of Police or other person who had the authority to issue or make that order, directive, rule or policy, by using computers, photocopiers, printers, vehicles, cell phones and other resources belonging to the Calgary PoliceService (“CPS”) to assist him in his external businessventure;
Count 3. Insubordination, in that between December 1, 2000 and April 18, 2001, the appellant omitted or neglected, without adequate reason, to carry out a lawful order, directive, rule or policy of the commission, the Chief of Police or other person who had the authority to issue or make that order, directive, rule or policy, by actively participating in an investigation in which the appellant acted as and held himself out to be a victim of alleged fraudulent criminal acts;
Count 4. Corrupt practice, in that between December 1, 2000 and April 18, 2001, the appellant, without adequate reason, used his position as a police officer for his personal or another person’s advantage to further his investigations and obtain information regarding a joint venture and persons involved in this external business interest and for use in any civil proceedings involving the appellant and his external business interest;
Count 5: Insubordination, in that between April 17, 2001 and July 12, 2001, the appellant disobeyed direct written and verbal orders made by a superior officer to produce notes made while in the employ of CPS.
Disciplinary proceedings were commenced and a hearing initially convened on November 13, 2002. As a result of a number of objections raised by the appellant, a number of preliminary applications were heard between November 13, 2002 and June 18, 2003. The nature and disposition of those preliminary matters is outlined in the decision of Inspector J.A. Redford (the “Presiding Officer”) dated October 29, 2003. The hearing in relation to Counts #1 to #5 proceeded on various dates commencing June 18, 2003 and concluding on September 19, 2003.
The Presiding Officer found all Counts against the appellant to be Sustained. Sentencing submissions were made to the Presiding Officer on October 29, 2003. On November 4, 2003 the Presiding Officerrendered his decision that the appropriate penalty to be assessed against the appellant in relation to the five Counts against him was dismissal from the CPS.
A Notice of Appeal dated November 24, 2003 was filed by the appellant in relation to both the finding of the Presiding Officer that the Counts against the appellant were Sustained and the penalty assessed by the Presiding Officer in relation thereto. In addition, the appellant raised several procedural objections, including an appeal of the Presiding Officer’s decision in connection with the appellant’s jurisdictional argument related to the extensions granted by the Calgary Police Commission (the “Commission”).
To deal with the jurisdictional issue raised by the appellant in relation to the granting of extensions by the Commission, the Board convened a hearing on October 8, 2004. The Board’s decision in relation to that preliminary application was rendered in the Board’s judgment No. 010-2004 dated December 6, 2004.
The hearing of the appellant’s appeal against the sustaining of the Counts by the Presiding Officer and the penalty imposed by him in consequence thereof was heard by the Board on November 23, 2004. At the commencement of the hearing the appellant withdrew his appeal against the Presiding Officer’s decision to sustain Counts #1, # 4 and #5. The appellant indicated his desire to pursue his appeal in relation to Counts #2 and #3, as well as his appeal against the penalty imposed by the Presiding Officer.
By agreement of the parties, pursuant to Section 20(1)(p) of the Police Act, the appeal before the Board proceeded on the record from the disciplinary proceedings held before the Presiding Officer, rather than by way of trial de novo. Entered before the Board by counsel to the parties were the Notices and Record of Disciplinary Proceedings in relation to all five Counts, pages 1147 to 1292 of the Transcript of Proceedings prepared by Argus Reporting in relation to the disciplinary proceedings, other materials entered collectively and referred to as “General Documents”, the Original Complaint, the Decision of the Presiding Officer, the Notice of Appeal, various prior decisions of the Board and the Court of Appeal decision in Plimmer v. Calgary (City) Police Service, 2004 ABCA 175 (CanLII).
STANDARD OF REVIEW
The parties agreed that the standard of review which must be applied by the Board in relation to the appellant’s appeal is set out in paragraph 39 of the Court of Appeal decision in Plimmer. The Court of Appeal held that “the Board should apply a standard of reasonableness simplicitor on an appeal on the record of a Presiding Officer’s decision as to punishment”. Although the appeal by the appellant extends to his conviction on Counts 2 and 3 as well as the penalty imposed by the Presiding Officer, the Board concurs with the parties’ position that the standard of reasonableness simplicitor applies to both the appeal against punishment and the Presiding Officer’s decision to sustain all Counts against the appellant. The Court of Appeal confirmed the Supreme Court of Canada’s description of that standard, as set out in the Supreme Court’s decision in Canada (Director of Investigation and Research) v. Southam Inc. 1997 CanLII 385 (SCC), 1997 144 D.L.R. (4th) 1, 71 C.P.R. (3d) 417, [1997] 1 S.C.R. 748, 50 Admin. L.R. (2d) 199, [1996] S.C.J. as:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a reasonableness standard must look to see whether any reasons support it.
SUBMISSIONS OF THE APPELLANT
In relation to Count #2, the appellant submitted there was nothing in the evidence to prove that the use of CPS resources by the appellant assisted him in his external business venture. While the evidence confirmed, and the appellant did not deny, that the appellant did use CPS resources, it also confirmed that all of the material compiled by the appellant was turned over to the CPS Commercial Crimes Unit and the R.C.M.P.
The Presiding Officer erred by failing to deal with the actual wording of Count #2. Rather than determining whether the materials accessed by the appellant had been used to assist in an external business venture (as alleged in the Court), the Presiding Officer focused on whether the external business venture had been terminated.
In relation to Count #3, the appellant submitted that the Presiding Officer again failed to prosecute based on what the CPS Policy actually said and what the Count actually alleged with respect to the appellant’s involvement in an investigation in which he acted as and held himself out to be a victim of alleged fraudulent criminal acts. The appellant was a complainant and it was an error to characterize him as a victim. To fall within Part 1, Chapter C, Section 1 of the CPS Policy the Appellant had to be a victim. The Policy did not refer to or contemplate possible, alleged, or purported victims. Accordingly the Count was not properly framed, in that it referred to the appellant as having “acted as and held himself out to be a victim”, rather than having been a victim as required under the Policy.
Regardless of the error made in framing the Count, the Policy required a finding that the appellant was a victim of alleged fraudulent criminal activity and the evidence before the Presiding Officer failed to prove that the appellant was the victim of a crime. The appellant’s own superiors testified in the disciplinary hearing that the appellant was not a victim.
The appellant further submitted that the CPS Policy in relation to investigation of incidents when a police officer is a victim, set out Part 1, Chapter 1, Section 1, is a difficult Policy to implement absent a direct order because it does not address the timing of the determination of whether the officer is a victim nor who makes that determination. As a result, the appellant submitted that the Count should have been framed under Subsection 3 of Section 1 of Part 1 of Chapter C, rather than Subsection 1, as the appellant was more properly characterized as a complainant rather than a victim. Having framed the Count pursuant to Subsection 1 it was necessary that the evidence prove that the appellant was a victim. When the evidence failed to do so, the Presiding Officer erred in sustaining Count #3. The respondent’s attempts to circumvent this issue by arguing the “spirit and intent” of the Policy and the Count, rather than their express wording, serve to highlight the weakness of the position taken by the respondent in relation to this Count.
The appellant submitted that the position taken by the appellant in relation to Counts #2 and #3 should not, as argued by the respondent, be viewed as overly technical. The Counts with which the appellant was charged should have flowed from the wording of the policy and had to be reflected and supported by the evidence. It was not open to CPS to frame Counts #2 and #3 in a manner not contemplated by the wording of the policy, nor to ignore elements of the Counts, in order to conclude that the Counts were Sustained.
In relation to sentencing, the appellant contended that this was a simple case involving the appellant’s violation of a lawful order of a superior. The appellant acknowledged that he had done so. However the respondent, in bringing five Counts against the appellant, created the perception of a worse case than actually existed. While Counts #2 and #3 must fail for the reasons outlined above, they were unnecessary and duplicitous in any event. Counts #1, #2 and #3 were really part and parcel of one misconduct. Similarly, Counts #4 and #5 also related to the same matter.
The appellant’s misconduct must be kept in the proper context. It must be viewed as a single incident of misconduct since it arose within a confined period of time (approximately four months), within the backdrop of the same order and in consequence of the same external businessendeavor.
The appellant is a police officer with over 20 years of service. Two performance assessments on his file initially indicated inconsistent performance with improved performance the following year. The appellant was disciplined for two previous instances of misconduct. The first was for Insubordination, in 2002, which arose in relation to the same external business venture as is the subject of these proceedings and arose due to the appellant’s failure to obtain the approval of the Chief of Police before undertaking that business venture. The second misconduct also arose in 2002, and related to the appellant’s failure to serve eight subpoenas.
Viewed in the context of other cases in which the Board or the Courts have upheld a penalty of dismissal against a police officer, the appellant’s misconduct did not meet the level required to support dismissal. The appellant’s conduct was not the type of “reprehensible” conduct referred to in Lingl v. Calgary Police Service (1993), 2 L.E.R.B. 128 (No. 025-93), nor did it render him “no longer fit to be a police officer”. There was no pattern of repeated behavior and repeated punishments such as was the case in Plimmer v. Calgary PoliceService, L.E.R.B. (No. 008-02). The appellant became consumed with events related to his failed external business venture. All of the misconduct related to a short time period and was directly related to his reaction to what he considered constituted fraudulent criminal activity. The appellant acknowledged that he broke the rules in failing to carry out a lawful order of a superior officer and the Chief of Police. The appellant agreed that he should be punished for this misconduct but argued that dismissal was not warranted in his case. The appellant performed his services without problem for approximately 20 years and cannot be said to be beyond redemption. The appellant submitted that the appropriate punishment in these circumstances was reduction in rank to the lowest rank, not dismissal from the CPS.
SUBMISSIONS OF THE RESPONDENT
The respondent submitted that the appellant was taking a too highly technical approach. The respondent urged the Board to adopt a more holistic approach. Support for this approach can be found in the Board’s previous judgment in the Amery v. Det. Young (1993), 2 L.E.R.B. 020 (No. 007-93) in which the Board determined that it should not take a highly technical approach in these matters since it is called upon to apply a civil standard and not a criminal one. Furthermore, police disciplinary proceedings engage extraordinary public interest as they involve the use of police powers.
The respondent referred the Board to the Transcript of Proceedings before the Presiding Officer, and in particular pages 1147 to 1292 of the transcript, which provide a useful summary of the evidence and arguments that were before the Presiding Officer in the disciplinary hearing. The Board must determine whether the Presiding Officer’s decision was reasonable in light of that evidence and all of the circumstances of this case.
The respondent conceded that there may have been a bit of “piling on” by the issuance of three Counts arising out of the same circumstances. However, although one Count might have been sufficient to address the misconduct, there was nothing improper or illegal in issuing three Counts.
The Order referred to in Counts #1, #2 and #3 was very clear, as evidenced by a review of the Order contained under Tab 5 of the respondent’s authorities. There were many instances, clearly evidenced in the respondent’s exhibits, where the appellant continued to investigate while on duty, using CPS resources, after he had received the direct order issued by Inspector B. Kapuscinski.
The appellant argued that there was no evidence to show that the use of CPS resources assisted in the appellant’s external business venture. The respondent submitted that these are civil proceedings requiring the application of a civil standard and that the appellant’s argument attempted to impose a criminal standard in relation to these proceedings. However, it was proper in civil proceedings of this type for the Presiding Officer to draw appropriate inferences from the evidence surrounding the business venture and the Presiding Officer made certain findings of fact in relation to this issue which he was entitled on the evidence to do.
In relation to Count #3, it was clear from the evidence that the appellant was holding himself out as a victim. The respondent referred the Board to excerpts in the Presiding Officer’s decision, highlighted for ease of reference, which provided ample evidence that the appellant remained at risk in relation to the failed business venture at the relevant time. It is not possible to determine with absolute certainty whether someone is a victim of a crime until the conclusion of the proceedings related to the allegation. If the argument of the appellant is accepted the CPS Policy set out in Part 1, Chapter C, Section 1 could never be engaged until long after it became relevant. The respondent submitted that it is enough to attract the application of the policy if an officer believes he may be a victim of criminal activity. The Amery case provides some assistance in relation to the issue sought to be addressed in the policy. This particular policy of the CPS was enacted to avoid the potential problems and dangers inherent in permitting police officers to investigate something in which he or she may be a victim. The rationale for the policy becomes clear in light of the circumstances of this appeal. Here the appellant’s involvement in the business venture and the possible negative consequences to him which might flow from its failure caused him to be so caught up in the matter that he lost his objectivity, resulting in him ignoring direct orders from superiors to cease that conduct.
In relation to the penalty imposed by the Presiding Officer, the respondent submitted that the penalty was reasonable and should not be set aside. The respondent submitted that it would not have made any difference to the result if two of the three Counts (namely #2 and #3) had not been sustained or if they had been combined with Count #1. All of the allegations of Insubordination related back to direct orders received from superior officers. The first three Counts related to orders issued in relation to the appellant’s investigation of the matter and Count #5 related to his refusal to produce notes that were the property of CPS.
The respondent agreed that dismissal should occur only in the most serious of cases. To determine the seriousness of the matter the respondent submitted that the Board must adopt a contextual analysis in accordance with the Supreme Court of Canada’s decision in McKinley v. B.C. Tel [2001] S.C.J. No. 40, 2001 SCC 38 (CanLII). In this case, it is clear that the appellant knew he was in breach of a policy and he knew that he was breaching direct orders of superiors. Having been in police service for more than 20 years he must have known such conduct was improper.
CPS gave the appellant the benefit of the doubt even after he had been warned to discontinue his investigation and to cease using CPS property. He failed to do so. He continued to investigate and to access CPS resources even after he received a written order and was given the relevant policies.
The appellant continued his investigation while on duty and using CPS resources surreptitiously after the order was issued. The misconduct referred to in Count #5 showed an intent to destroy evidence of the appellant’s misconduct. Furthermore the appellant had been given notice early in the process that his employment was at stake. Nonetheless he continued to disobey the direct orders, attempted to destroy evidence and did not recant at any point in the proceedings.
SUMMARY OF EVIDENCE
During the hearing before the Board, counsel for the parties referred to the evidence that was before the Presiding Officer at the disciplinary hearing. The Board considers the following to be of particular relevance:
• The appellant was involved in an external business venture dating back to 1998.
• Sergeant T. Marshall testified at the disciplinary hearing that he was then a Constable working with the appellant in the early part of 2000 when he noticed that the appellant was making on duty inquiries relating to the business venture. During this time period the appellant told Marshall that he had not obtained authorization from the Chief of Police in relation to this business venture. Marshall was present when the appellant obtained statements related to the business difficulties. It was during this time period, early in 2000, that Marshall advised the appellant that he should not be conducting these kinds of inquiries while on duty. On one occasion, he refused to accompany the appellant when he wanted to make one of these inquiries.
• In December of 2000, Marshall brought this matter to the attention of Sgt. E. Harrison, the supervisor of the team on which he and the appellant served.
• While on duty on December 20, 2000, the appellant had booked out for approximately one hour and 15 minutes to obtain a statement from an individual in relation to his private businessventure. The person interviewed had been the subject of inquiries made on the CPS PIMS System 11 times on December 19 and one time on December 20, 2000. Also while on duty, on December 26, 2000, the appellant used the CAD System to request dispatch assistance in obtaining a reverse search on a telephone number. The telephone number related to another individual involved in the external business enterprise. That name was also queried on four other occasions on the morning of December 26, 2000. On that same day, while on duty, the appellant attended at the address provided for this individual by the dispatcher, where he remained for one hour and 58 minutes. The appellant made 67 inquiries on the PIMS System between December 1, 2000 and January 11, 2001, in relation to individuals associated with his external business venture.
• After having notified Sgt. Harrison, Marshall observed a report on a CPS printer related to persons associated with the appellant’s externalbusiness venture, together with papers in the appellant’s handwriting. At this time he brought the documents to Sgt. Harrison.
• Sgt. Harrison subsequently discovered that the appellant had attended at a private residence while on duty to obtain information in relation to the business venture.
• On January 11, 2001, the appellant admitted to Sgt. Harrison that he had again attended an address to obtain information concerning the businessventure while on duty. At this time Sgt. Harrison told the appellant he should stop working on his investigation while on duty. During the same shift Sgt. Harrison provided the appellant with copies of the CPS Policies related to authorization for outside business interest, conflict of interest, and investigation of matters where a police officer is a victim. At the same time Sgt. Harrison verbally ordered the appellant to cease and desist his investigation of the matter.
• On January 17, 2001, Sgt. Harrison confirmed his earlier verbal direction with a written order which he personally delivered to the appellant.
• On February 12, 2001, Sgt. Harrison received further information which suggested that the appellant was not following the written order. Consequently Sgt. Harrison made further inquiries, including off-line computer searches and discussions with the Identification Section of the CPS, which confirmed that the appellant had not been observing his order.
• On February 22, 2001, Sgt. Harrison sent a memo concerning the appellant’s conduct to his commander, Inspector B. Kapuscinski.
• A former member of the CPS Identification Section testified at the disciplinary hearing that in March 2001, she prepared a photographic line-up which included a person associated with the appellant’s business venture, at the request of the appellant.
• A former processing clerk for the CPS Identification Unit testified that during the period from mid-January to mid-April of 2001, the appellant had requested him to complete photographic line-ups which included individuals associated with the business venture.
• The business venture had experienced financial difficulties resulting in the issuance, in May 2001, of a Statement of Claim naming the appellant and others as Defendants.
• Another member of the CPS Identification Unit testified that in July or August of 2001, he had provided photographic line-ups requested by the appellant which included individuals associated with the business venture.
• On March 12, 2002, the appellant had been served with an Official Warning for failing to obtain the necessary authorization in relation to thisbusiness venture.
• A former member of the Professional Standards Section of the CPS testified that as a result of his assignment to investigate the activities of the appellant, he determined that, following the date upon which Sgt. Harrison ordered the appellant to stop using police resources in his investigation of matters related to his private business venture, the appellant made 104 inquiries related to persons involved in the external business venture. By analyzing the data against employee time records, the investigator determined that the majority of the inquiries took place while the appellant was on duty.
• An independent consultant testified that each member of the CPS receives a warning on the computer screen, which has been in effect without substantive change since June 24, 1997, each time the member signs on to the computer. This warning relates to the confidentiality and proper usage of computerized CPS information.
• Witnesses also corroborated the testimony of CPS personnel that the appellant had interviewed them in relation to the external business venture while he was in uniform and operating a police service vehicle.
• A member of the R.C.M.P Commercial Crimes Unit testified that he received documentation from the appellant in relation to the external businessventure which included Statutory Declarations of third parties dated after the date of the orders issued by Sgt. Harrison. He also testified that this material, as well as other information received subsequently, was not the type of information that a regular citizen would be able to obtain and would most likely be accessed through police sources.
DECISION OF THE BOARD
For the reasons detailed below the Board dismisses the appeal.
REASONS FOR DECISION
The appellant’s main arguments in relation to Counts #2 and #3 were that they should not have been Sustained by the Presiding Officer because:
1. the evidence did not support the findings necessary to give effect to the actual wording of the Counts and/or the Policy which underlies Count #3; and
2. the Counts #2 and #3 were not properly brought in any event because they were included in Count #1 and constituted duplicate Counts for essentially the same conduct as was the subject matter of Count #1.
The basis of the appellant’s appeal of the penalty imposed by the Presiding Officer flows from the above arguments. The appellant alleges that the piling on of five Counts arising out of the same conduct, all directly linked to the same matter, led to the imposition of a more severe penalty than was warranted because it gave the appearance that the misconduct was more serious than was actually the case.
Were Counts #2 and #3 part and parcel of Count #1, were they different aspects of the same misconduct or did they represent separate types of misconduct? Were the words chosen in the framing of Counts #2 and #3, insofar as they may have deviated from the exact wording of the CPS Policy or that the choice of words of the Presiding Officer may not have expressly found, as fact, certain elements of the Counts, fatal to the sustaining of those Counts by the Presiding Officer? The Board has concluded that on the facts of this case the arguments put forth by the appellant, even if successful, would not change the result. What must be carefully considered is the conduct of the appellant and the context in which it arose, not the manner in which the Chief of Policechose to describe the allegations or to categorize the nature of the alleged misconduct. In framing the Counts it was essential that the appellant understood the nature of the alleged misconducts so that he could prepare his response to the allegations. There is no doubt that in this particular case the appellant was clearly aware of the nature and particulars of the misconduct alleged by the Chief of Police. In this case the facts are not in dispute. The disagreement of the appellant relates not to what happened but, rather, what the consequences should be in relation to his actions.
The evidence clearly shows that the appellant not only should have been aware that his activities were in contravention of CPS Policy and direct orders issued by his superiors, but that he did know that what he was doing offended both the CPS Policy and the orders of his superior officers. As an experienced police officer he ought to have been aware and was aware that what he was doing constituted misconduct. He was given ample warning by his partner and superior officers that what he was doing was improper. He was cautioned not only to cease and desist this activity, he was warned of the consequences, including the possibility of dismissal. He continued to pursue his investigation following those warnings, following receipt of the applicable policy and following receipt of both verbal and written orders from a superior officer. He did so over one hundred times following receipt of those warnings and orders.
The Board is not persuaded that the repeated conduct, exceeding over one hundred instances over a four month period, should be viewed as one incident, albeit protracted, of misconduct. Each time the appellant accessed the CPS computer system, obtained photographic line-up materials, attended to obtain witness statements, all while on duty, he made a conscious decision to ignore the warnings and orders he had received.
The Board agrees that the appellant had many opportunities to cease and desist, which would have ended or precluded disciplinary action but he chose not to do so. He allowed his concern for the personal consequences arising from the failed business venture to interfere with the objectivity and professionalism required of a police officer.
The principles applicable to the determination of the appropriate penalty in cases of this nature were argued before and considered by the Presiding Officer. Aggravating and mitigating factors were raised and considered by him. The Board agrees with the conclusion of the Presiding Officer that:
“the misconduct as reflected in the charges before this hearing are remarkable in that they were blatant, clearly premeditated and manifested themselves over an extended period of time. They did not arise on the spur of the moment, did not occur in the good faith performance of duty and cannot be laid at the feet of inexperience or a level of lack of knowledge as might reasonably be anticipated in an officer of more junior service, nor can it be said the misconducts arose as a result of a misinterpretation of an order or a lack of opportunity to correct inappropriate behaviour without disciplinary sanction.”
The Presiding Officer gave appropriate consideration to the issue of public interest in relation to this matter, pointing out that “there is a rightful expectation on the part of the public that a police officer on duty and utilizing police resources will be carrying out his or her duties in service to the public, not in service to the police officer’s personal ends.” Or, as the Presenting Officer most effectively submitted:
“Now, to address the matter of public interest, what would the reaction of the citizens of Calgary be if they knew a Calgary Police Serviceofficer accessed private and secure information for reasons other than police business? How would they react if they knew a Calgary PoliceService officer was utilizing the resources of the Calgary Police Service to investigate irregularities in his or her own outside business interest. What would members of the public think if they knew a Calgary PoliceService officer was going to citizens’ homes while being paid and on duty in a policevehicle, in police uniform, and obtaining statements on Calgary Police Service documents relative to outside businessinterests gone bad? I submit the citizens of Calgary would be appalled. Other members of The Service would be appalled. Those of otherpolice in provincial and federal agencies would likewise be appalled. Their confidence in the officer and indeed The Service could be so badly damaged that the officer could not function as a police officer.”
Bearing in mind the standard of review applicable to this appeal, the Board cannot conclude that the Presiding Officer’s decision was unreasonable. It is more than supported by reasons that stand up to more than a probing examination. There are, on the facts of this case, ample reasons to support the penalty imposed by the Presiding Officer. This would be the case whether the Chief of Police had chosen to frame the allegations of misconduct in five Counts, in one Count, or in more than 100 Counts. What is relevant in this case is the repeated decision by the appellant, after having been warned and ordered to cease and desist, to continue to engage in what he knew was prohibited conduct. The public interest, and the need to send a clear message to other members of police services in this province, that such conduct will attract significant penalties, must be given considerable weight. It is of significant public importance that confidential police information and police resources be used appropriately and that their misuse will be treated seriously.
CONCLUSION
THE APPEAL IS DISMISSED.
_________________________________
Donna L. Shelley, Q.C.
Chair
DATED at the City of Edmonton ,
in the Province of Alberta, this
15th day of March , 2005.
cc: Board Counsel
G. Stapon, Counsel for the Calgary PoliceService
E. Wilson, Q.C., Counsel for the Appellant
Comments
Post a Comment