The court considered the application of the so-called “Kienapple principle” – the principle that a person cannot be punished twice for the same offence. The context of the decision was a Hearing Officer’s disciplinary decision relating to the applicant police officer and the penalty for his misconduct.

Administrative law – Decisions reviewed – Police Commission – Professional governance and discipline – Judicial review – Standard of review – Reasonableness – Police – Disciplinary proceedings – Professional misconduct / conduct unbecoming

Durham (Regional) Police Service v. Sowa, [2019] O.J. No. 1555, 2019 ONSC 1902, Ontario Superior Court of Justice, March 28, 2019, H.E. Sachs, J.A. Thorburn and R.B. Reid JJ.

This case relates to the application of the so-called “Kienapple principle” (R. v. Kienapple, [1975] 1 S.C.R. 729). The principle was developed in the context of criminal proceedings. In basic terms, the principle says that 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 person cannot be punished for the second count, since this would amount to double punishment. The principle is only engaged where the offence arises from the same transaction.

The respondent, Constable Leona Sowa, appealed the decision of the Hearing Officer who found him guilty of insubordination, deceit and two counts of discreditable conduct contrary to the Code of Conduct under the Police Services Act, R.S.O. 1990, c. P. 15 (the “PSA”). The respondent was successful on appeal to the Commission. The Commission confirmed the findings of misconduct but varied the penalty. There were two bases for this. First, the Commission said that the Hearing Officer punished Constable Sowa twice – for insubordination and discreditable conduct – failing to properly apply the “Kienapple principle”. Second, the Hearing Officer failed to consider the importance of consistency of disposition and did not properly apply previous decisions in deciding the appropriate penalty.

The Durham Regional Police Service applied for judicial review of the Commission’s decision. The court applied a reasonableness standard of review.

The primary issue the court considered was whether the Commission erred in finding that the Hearing Officer punished Constable Sowa twice for the same actions, contrary to the Kienapple principle. The court began with a detailed review of the principle, emphasizing that there must be a factual and legal nexus between the charges for the principle to apply. In this case, the court found that the discreditable conduct of Constable Sowa arose on two separate occasions (although relating to the same general conduct) and were therefore separate offences. The court confirmed that the Kienapple principle does not prevent holding offenders liable for each occasion on which they have transgressed the law. Additionally, although the court recognized that there was some factual connection between the insubordination offence and the discreditable conduct, the court focused on the distinct legal elements of the two offences, the former being primarily an office of disobedience. The court said that the Commission overemphasized the factual similarities and failed to consider the lack of legal nexus. For this reason, the court found that the Hearing Officer did not penalize the constable for the same actions and the Commission’s decision to overturn this finding was unreasonable.

The court also concluded that the Commission erred in finding that the Hearing Officer failed to properly consider previous decisions when it came to issuance of the penalty. The court found that the Commission misapprehended the facts in the case the Commission said the Hearing Officer failed to apply. Additionally, it said the Commission failed to give sufficient deference to the other factors that led the Hearing Officer to give little weight to the decision.

In the end, the court concluded that the Commission’s decision was unreasonable, set it aside, and reinstated the Hearing Officers’ decision.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.

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