Parity is not Dead

In College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136, the Divisional Court refused to apply the “parity principle” where the range of sanctions from previous cases that counsel relied on was found by the Court to be clearly “unfit” such that those cases ought not to be followed. However, even in that decision the Court said that consistency in decision-making was important. A recent Alberta Court of Appeal case (which, by the way, did not cite Peirovy) reinforces that consistency in sanctioning is generally desirable.

In Constable A v Edmonton (Police Service), 2017 ABCA 38, a fifteen-year constable working for the Edmonton police had an unblemished record. During an investigation, she recruited a confidential informant for the first time in her career, but did not follow her employer’s protocol. To protect her informant’s identity she swore a false Information to obtain a search warrant and then maintained the falsehoods throughout the process. Eventually she told the Crown Attorney the truth, which resulted in her discipline. The discipline tribunals focused on the falsehoods and dismissed her. On judicial review the main issue was whether the dismissal was justified.

The Court held that, while dismissal was an option, it was not the only reasonable outcome for persistent deceit. It summarized the considerations that should be taken into account as follows:

…fitness of sanction depends on numerous factors, including: the seriousness of the misconduct; the moral culpability of the constable; the existence of remorse and recognition of responsibility; the resulting consequences for the public and the administration of law; the need for deterrence, denunciation or rehabilitation; and the overall fitness of the constable for police service. A fit sanction is also proportional; it reflects the moral blameworthiness of the person being sanctioned and the gravity of the misconduct.

The Court found that the tribunal had erred by not considering the parity principle especially where there were a number of decisions involving persistent deceit that did not result in dismissal. The Court said:

At issue here is the application of parity – one of the fundamental normative values that must inform every just sanctioning exercise. Those who are similarly situated should be treated similarly. No system of discipline can be fair in the absence of consideration of parity. A system that accepts that sentencing is completely individualized overlooks the importance of confidence and respect in the system that is fostered by a consistent rather than an arbitrary approach to sanction. In other words, precedents matter. Previous decisions, particularly well-reasoned decisions from the same tribunal, provide important guide posts when determining the gravity of conduct and the degree of responsibility of the officer, and in ensuring that the disciplinary system is applied fairly and not arbitrarily.

Given some of the mitigating factors in the case (e.g., exemplary record, motivation was to protect the confidential informant, not protect herself), the Court returned the matter for further consideration of an appropriate order. So the parity principle is still alive, however, it is important to remember that the Court in Peirovy recognized that the type of misconduct at issue there (sexual assault) has come to be viewed differently now by society and so what might have been a fitting precedent in the past was now in fact “unfit”. It is not clear that society’s view of false testimony by a police officer has really changed over time.

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