A police Constable appealed a Hearings Officer’s sentence of dismissal to the Commission. The Commission allowed the appeal and substituted a penalty of demotion. The Ontario Provincial Police (“OPP”) appealed the Commission’s decision to the Ontario Superior Court of Justice. The appeal was allowed and the penalty imposed by the Hearing Officer was reinstated.

Administrative law – Police – Disciplinary proceedings – Penalties and suspensions – Decisions of administrative tribunals – Police Commission – Judicial review – Standard of review – Reasonableness simpliciter

Favretto v. Ontario (Provincial Police), [2003] O.J. No. 5052, Ontario Superior Court of Justice, December 2, 2003, O’Driscoll, Then and Benotto JJ.

On April 16, 1996, Constable Favretto, a member of the OPP, removed his semi-automatic service pistol from his holster and pointed it at his partner’s left shoulder. The gun was loaded and the Constable was holding the pistol in his right hand with his finger on the trigger. The officer’s partner backed away and sat down. The pistol remained trained on the partner until he was seated and then returned to the holster. Approximately 10 minutes later, the Constable apologized to his partner saying “I’m sorry for drawing my gun on you, but you pissed me off”. The incident was reported and the Constable was charged under the Police Services Act, R.S.O. 1990, c. P. 15 (“PSA”). The Hearing Officer appointed under the PSA conducted a hearing and found the Constable guilty of discreditable conduct and imposed a penalty of dismissal. The Constable appealed the finding of guilt and the penalty pursuant to the PSA. The Commission dismissed the appeal on the finding of guilt but allowed the appeal on penalty on the grounds that the Hearing Officer had erred in (1) not considering the prospects of rehabilitation; (2) not properly taking into account provocation; and (3) not properly considering the consistency of the penalty with other police discipline cases. The Commission replaced the penalty of dismissal with a 2 year demotion.

The OPP appealed Commission’s decision to the Ontario Superior Court of Justice which held that the standard of review was “reasonableness simpliciter”. The Court reviewed each of the Hearing Officer’s alleged errors. With respect to the failure to consider rehabilitation, the court noted that the Hearing Officer did in fact consider rehabilitation but found that the risk to society of an unsuccessful rehabilitation was so serious that rehabilitation could not be the controlling factor. The court agreed with the Hearing Officer’s opinion and stated that the seriousness of pointing a loaded firearm at a fellow officer in the midst of a normal work day cannot be overstated.

With respect to provocation, the court noted that the Hearing Officer accepted that the Constable had been provoked. The court was not inclined to disagree with the Hearing Officer’s opinion that provocation did not justify the Constable’s reaction.

With respect to the consistency of the penalty with other discipline cases, the court noted that the Hearing Officer reviewed two other cases which supported the proposition that a single poor act of judgment can be so egregious as to warrant dismissal.

The court was unanimous in its conclusion that the decision of the Commission did not meet the standard of “reasonableness simpliciter”. The appeal was allowed and the penalty imposed by the Hearing Officer was reinstated.

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