OTTAWA POLICE SERVICE DISCIPLINE HEARING IN THE MATTER OF ONTARION REGULATION 268/10 MADE UNDER THE POLICE SERVICES ACT, RSO 1990,

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1 OTTAWA POLICE SERVICE DISCIPLINE HEARING IN THE MATTER OF ONTARION REGULATION 268/10 MADE UNDER THE POLICE SERVICES ACT, RSO 1990, AND THE AMENDMENTS THERETO; THE OTTAWA POLICE SERVICE AND CONSTABLE JARRID FOLEY #1842 DECISION ON DISPOSTION Before: Supt. Don Sweet Counsel for the Prosecution: Nick Continelli Counsel for the Defence: Mr. Pat Laflamme Hearing Date: Monday March 20 th, 2017

2 This decision consists of four parts: PART 1: OVERVIEW; PART II: SUMMARY OF MISCONDUCT AND, PART III: ANALYSIS and PART IV: DISPOSITION ON PENALY PART 1: OVERVIEW Allegations and Particulars of Misconduct include the following; It is alle ged that Cst Jarrid Fole y committed Discreditable Conduct, in that on or about the 5 th of July 2015, while off duty and operating a motor vehicle in the province of Quebec, you acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Ottawa Police Service, thereby constituting an offence of Discreditable Conduct as prescribed in section 2(1)(a)(xi) of the Code of Conduct, Ontario Regulation 268/10, as amended, and therefore contrary to section 80(1) of the Police Services Act of Ontario. Plea I first want to thank both prosecutor, Mr. Nick Continelli and Defence, Mr. Laflamme, for their input and ability to reach a joint plea and agreement on penalty. I previously accepted the guilty plea on January 30 th As a result of this plea, a joint submission of penalty was provided; whereas both parties agreed to and jointly submitted that the appropriate disposition of the findings of Discreditable Conduct is as follows; A demotion to second class constable for a period of 3 months in accordance with section 85(1) (c) of the Police Services Act. The following exhibits were tendered: PART II: SUMMARY OF MISCONDUCT Exhibit #1: Hearing Officer Designation Exhibit #2: Prosecutor s Designation Huneault Exhibit # 3: Notice of Disciplinary Hearing Exhibit #4: Notice of Increased Penalty Exhibit #5: Stay of Proceeding Request Exhibit #6: Prosecutor s Designation - Continelli Exhibit #7: Agreed Statement of Facts Exhibit #8: Joint Position on Penalty Exhibit #9: Book of Authorities Particulars of Counts An agreed statement of facts was presented to the Tribunal as follows;

3 1. The subject officer, Cst. Jarrid Foley (#1842), has been a sworn member of the Ottawa Police Service (OPS) since On July 5 th, 2015, Cst. Foley attended a restaurant in Ottawa while off duty and consumed alcohol. 3. Cst. Foley then drove from this establishment toward his residence in Wakefield, Quebec. 4. A Surete de Quebec officer pulled over Cst. Foley on highway 50 and warned Cst. Foley about his manner of driving. The SQ officer then concluded the traffic stop and Cst. Foley drove away. 5. A short time later, the MRC des Collines police found Cst. Foley s vehicle pulled over on Ave Des Grands-Jardins in Gatineau and Cst. Foley asleep at the wheel. 6. After speaking with Cst. Foley, the MRC des Collines suspected Cst. Foley was under the influence of alcohol and arrested and charged him. Cst. Foley was brought to the police station and subject to further testing. 7. The OPS assigned Cst. Foley to administrative duties pending the criminal and internal investigations. 8. Cst. Foley voluntarily entered into the Quebec interlock device program. This program cost $2570 and required Cst. Foley to fully complete the program once enrolled. In addition, the program included a monitoring and an educational component regarding drinking and driving. 9. On July 22, 2016, the Quebec Crown Attorney s office withdrew the alcohol-related criminal charges involving Cst. Foley. 10. Cst. Foley fully cooperated with the ensuing PSS investigation and admitted to consuming an amount of alcohol that affected his driving on the day in question. 11. Cst. Foley showed remorse for his actions through sending an apology letter to the OPS at the outset of this incident. Cst. Foley s driving privileges have been recently restored. 12. Cst. Foley has no prior disciplinary issues with PSS. 13. On two occasions Cst. Foley received commendations for his police work and involvement in the community.

4 PART III: DISPOSITION I would like to start my comments as it relates to disposition on penalty by first outlining the objectives of discipline: These objectives are to: Correct unacceptable behavior Deter others from similar behavior Assure the public that the police are under control To determine an appropriate disposition a variety of considerations apply to the process. The case law enumerates factors such as deterrence, provocation and managements approach to the misconduct. Other factors can be relevant to aggravating and mitigating a penalty; these include officer s employment history and the recognition of seriousness of the misconduct. I agree that the proposed joint position on penalty addresses these important penalty factors. I will now highlight several of the areas I took into consideration for this disposition; The first consideration I would like to review is that of: Public Interest One of the objectives of police discipline is the protection of the public. Any penalty I impose must impress upon the public that misconduct on an officer s part attracts appropriate sanctions. One of the Legislative purposes of the PSA is to increase confidence in the provision of police services in Ontario, including disciplinary matters. Cst. Foley s conduct fell well below the reasonable expectation the public and the Service has of its police officers. A sworn member of the OPS consuming alcohol to the point where his driving was affected is unacceptable under the officer s oath to enforce the law. Similarly, this conduct is an affront to the public s expectation that police officers will prevent rather than perpetuate such conduct. Drinking and driving puts the safety of the public at risk and the public will rightly expect corrective action against an officer engaged in such misconduct. This incident will also affect the confidence of community members who trust officers to enforce the law on highways and other roads. The next penalty consideration is: Seriousness of the Misconduct

5 Cst. Foley s conduct is serious in nature; drinking and driving is an ongoing societal concern based on the inherent danger this practice poses to pedestrians and other drivers. This misconduct also resulted in another police service charging the officer and the officer temporarily losing his driver s license, which affected his ability to fulfill his duties. Cst. Foley s behaviour placed himself and other driver s at risk, which is an aggravating factor. Further, this misconduct has further jeopardized public trust and has brought discredit upon the reputation of the Ottawa Police Service. Cst. Foley will now be McNeil positive which means he will be subjected to cross examination on the facts surrounding his misconduct to impeach his credibility and reliability. This misconduct will impact his ability to present evidence on future cases and creates added risks to future investigations he may be involved in. The next area I will discuss is, Recognition of the Se riousness of Misconduct Constable Foley has pled guilty today and by doing so, he acknowledges responsibility for his actions. Moreover, this guilty plea will avoid the time and expense associated with a formal hearing and calling witnesses. This is a significant mitigating factor which should be acknowledged. Cst. Foley also fully cooperated with the Professional Standard Section investigation. Finally, Cst. Foley directly apologized to the OPS shortly after the impaired driving incident, before these proceedings commenced under the PSA. The next area I considered is, Potential to Reform or Rehabilitate the Police Officer Constable Foley was hired by the Ottawa Police in 2006 and has no prior PSS disciplinary issues. Cst. Foley also successful completed an interlock device program, which included an educational component on avoiding drinking and driving. This program was voluntary and imposed considerable expense on the officer. There is no reason to suggest that his behaviour will reoccur. These efforts should be considered mitigating factors in my disposition. The next area when considering penalty is, Specific and General Deterrence PSA case law recognizes that Police officers are held to a higher standard. This higher standard continues to apply to officers who are off-duty. The Ottawa Police Service does not condone

6 Cst. Foley s behavior and recognizes that a clear message must be sent to the public and all officers that driving while under the effects of alcohol is not acceptable. As such, the penalty for this misconduct must be sufficient to deter him from ever repeating these actions. The penalty must remind Cst. Foley of the higher standard expected from police officers both on and off duty. As for general deterrence, the penalty must be serious enough to also send a clear message to other officers to deter them from similar conduct. Police officers have an oath to enforce the law and that this is fundamental aspect of policing- failing to do requires the appropriate consequences. Impaired driving continues to be an issue with the off duty conduct of police officers. Despite numerous internal education campaigns it is still an issue. Thus the penalty must serve as a reminder to other Officers of the likely consequences. The next area I have considered is, Reputation of the Police Force and Effect of Publicity Cst. Foley s misconduct will likely come to the public s attention along with other Ottawa Police Service members. The disciplinary decision will be posted on the Ottawa Police Service webpage for all to read. This incident has the potentia l to seriously effect the reputation of the police service. Specifically, the need for another Service and the criminal justice system to correct the conduct of an OPS member is inherently harmful to the OPS reputation. The next area when considering penalty is, Employment History Cst. Foley has no prior PSS disciplinary issues. In addition, Cst. Foley has received 2 prior commendations for his policing work in the community. These factors were considered mitigating when deciding the appropriate disposition for Cst. Foley. The next area being considered is, Consistency of Disposition The Prosecution has submitted the appropriate penalty be a demotion for 3 months from 1 st class constable to 2 nd class constable. To assist me in reaching my decision the Prosecution provided me a book of authorities consisting of 4 cases where impaired driving was the offense with somewhat differing facts.

7 1. Cst. Guilbeault : -Criminal Charges: Impaired driving- plead guilty- 1 year driving prohibition and a $ fine. -PSA Charges: Discreditable conduct- prior PSA convictions (3x insubordination, and 1x discreditable where he forfeited 152 hours). -Penalty: 8 month demotion from first class to second class. 2. Cst. Bayaa : -Criminal Charges: impaired driving over 80 (1)(b) plead guilty- $1200 fine, 1 yr driving prohibition and $ victim surcharge; impaired driving 253 (1)(a) withdrawn. -HTA: fail to remain- found guilty + caused property damage -PSA Charges: Discreditable conduct x2- plead guilty. -Penalty: 6 month demotion from first class to second class. 3. Cst. Durocher : -Criminal Charges: impaired driving over 80 (1)(b) withdrawn. -HTA: Careless driving- plead guilty- fine $ $ witness testimony of car weaving dangerously across lanes -PSA Charges: Discreditable conduct x2- plead guilty. -Penalty: 9 month demotion from first class to second class. 4. Cst. Muldoon Impaired driving; Guilty plea -collision with another vehicle causing damage -7 month demotion All of these cases did present more serious sentences but they also consisted of much more aggravating circumstances. In summary, In determining my decision I considered the aforementioned categories but I also weighed them against mitigating and aggravating factors specific to this case. The mitigating factors being: officer s acknowledgment of the misconduct / guilty plea, potential to reform or rehabilitate the officer, and the officer s favourable employment history. The aggravating factors are: seriousness of the misconduct

8 effect of publicity/damage to reputation of police service, specific/general deterrence, and public interest. PART IV: DISPOSITION Having regard to the aforementioned points, I agree with the joint submission concerning penalty in this matter. Misconduct has been proven on clear and convincing evidence and the purpose of the discipline process can be met by imposition of the proposed penalty. Cst. Jarrid Fole y, please stand, you will be demoted to second class constable for a period of 3 months in accordance with section 85(1)(c) of the Police Services Act of Ontario. Dated at Ottawa this 20 th day of March, Superintendent Don Sweet #817 Hearing Officer

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