Why It’s So Hard to Fire Bad Cops in Ontario
An Ottawa cop is being investigated for making racist statements, but even if his bosses wanted him fired, he'd face the same simple test as other officers fighting for their jobs.
Last week, the Ottawa police confirmed they were investigating comments a local officer had left on an Ottawa Citizen article about artist Annie Pootoogook. Screencaps published by APTN show Sergeant Chris Hrnchiar brushed off Pootoogook's death, writing, "It's not a murder case... typically many Aboriginals have very short lifespans, talent or not."
"Much of the aboriginal population in Canada is just satisfied being alcohol or drug abusers,living in poor conditions... it's not society's fault," Hrnchiar wrote in another comment.
Ottawa lawyer Michael Spratt recently told VICE that he was doubtful Hrnchiar would face consequences,arguing that the police service"is infected by this sort of systemic racism." And the presence of racism in policing is a fact proven by some of the country's best journalists and acknowledged by Canada's highest-ranking police officer.
Ottawa police chief Charles Bordeleau has already said Hrnchiar likely won't be fired for his comments. But even if the Ottawa police wanted to terminate Hrnchiar, the officer would have to answer the same simple question as any other cop facing dismissal: Is he still useful to the police force and the public?
This is called the usefulness test, and it's long been the standard question asked of police officers who have committed serious misconduct.
On March 30,1995, Constable David Guenette of the Ottawa-Carleton Regional Police Service earned himself a small bonus.The veteran officer stepped into the lobby of a Royal Bank, where a male identified in an online document as "M.O." was using an ATM. M.O. finished his business and left, but forgot his card in the machine. Guenette helped himself to $200 of M.O.'s money.
Guenette was charged with theft, but avoided a criminal record, according to a decision from what was then called the Ontario Civilian Commission on Police Services (OCCPS). After an internal disciplinary hearing, a hearing officer ordered Guenette to resign or be dismissed.
The officer launched an appeal, and in December 1998, the OCCPS changed Guenette's penalty to demotion.
Dismissal, the commission wrote in its decision,"is reserved for those cases in which conduct is so disreputable that the police officer is no longer of any use to the service or it would cause irreparable damage should the officer remain on the force."
"It is in this context that we must apply the 'usefulness' test in determining whether dismissal is the appropriate penalty for Constable Guenette."
Guenette's appeal lawyer submitted character references that weren't presented during the initial disciplinary hearing, along with an affidavit from a doctor who said the officer's depression and anxiety likely prevented him from seeking out references earlier. The letters were apparently convincing evidence that Guenette was still useful as a police officer.
The test is still applied in the same way. Toronto Police Constable Troy Sylvester faced dismissal last year for driving with an excess blood alcohol level in 2009 (the Toronto police did not move forward with Sylvester's disciplinary matter until his criminal proceedings were completed, a spokesperson said in an email). According to a police document, Sylvester was stopped near Lindsay, Ontario, where he was driving with his three children in the vehicle; he smelled of alcohol and failed a roadside breathalyzer test. TheToronto Police Service wantedSylvester to resign or be dismissed. He had been convicted of a 2001 assault in Barrie, skipped court dates, and once showed up for work after drinking and swore at a supervisor; Sylvester also spent time in custody after being convicted of "assaulting a woman in Toronto," according to a police document,but had the conviction overturned. As she considered firing Sylvester, Superintendent Debra Preston wrote, "My task, while complex,can be distilled to one question: Has Constable Sylvester's usefulness to the Toronto Police Service and the community he serves been annulled?"
Preston and the prosecutor each cited a past case that broke the usefulness test into three main considerations: "the seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the police force that would occur should the officer remain on the force." Sylvester's lawyer, Lawrence Gridin, used Sylvester's performance appraisals and other evidence to convince Preston that the troubled officer was of use to the TPS.
"It is difficult to argue that he is no longer useful to the organization when... he was returned to full duties and given significant responsibility to which he responded in a positive matter," Preston wrote, adding that the officer's history was "disturbing."
"If there was ever a last chance at redemption, this is it," Preston wrote, before ordering that Sylvester be demoted.
Since then, Sylvester has landed in trouble again; he has several pending charges before the TPS disciplinary tribunal. Documents released to VICE show that Sylvester was pulled over in February with open liquor in his vehicle. He was allegedly driving with unauthorized plates, and claimed that his police identification was at home when it was actually being held by the TPS. Another document alleges officers confronted Sylvester after he stole $80 from a suspect's wallet. Still another revealsSylvester allegedly reported to a paid duty without his body armour or firearm. Sylvester is currently suspended with pay. His lawyer did not respond to requests for comment.
The usefulness test doesn't guarantee that officers keep their jobs, however. A hearing officer may decide that an officer has damaged the public's trust so badly that he should be dismissed, even if he is, in some sense, still useful, according to lawyer David Butt.
"Somebody could be useful, you know, licking stamps in the basement, even if they're a child molester—but it's a broader notion of usefulness,"said Butt, who defends police officers accused of misconduct. Misconduct that entails "a deep fracture" of the public's trust, he said, would be viewed as eliminating an officer's usefulness.
Any officer accused of misconduct will benefit from a rigorous defense,the support of their union, and the sympathy of the fellow police officers who typically oversee the disciplinary process. It's unclear what repercussions, if any, Hrnchiar will face for his comments. But when any office is brought before a disciplinary tribunal to fight for his job, they'll find, like Sylvester, a bar that's set surprisingly low.