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IN THE MATTER OF
ONTARIO REGULATION 123/98
MADE UNDER THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15
AND AMENDMENTS THERETO;
AND IN THE MATTER OF
POLICE CONSTABLE DOROTHY NESBETH
AND THE
WINDSOR POLICE SERVICE

APPEARANCES
Mr. David Migicovsky
Legal Counsel

for the Windsor Police Service

Mr. Patrick Ducharme


Legal Counsel

for Constable Nesbeth

BEFORE:
Superintendent (retired) Robert J. Fitches
Reasons Released: December 19th, 2014 (electronically)

Disposition with Reasons

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Background
After a lengthy hearing into allegations of misconduct against her, Constable Dorothy Nesbeth
was found guilty of:

Deceit by knowingly making or signing a false statement in a record contrary to


Section 2(1)(d)(i) of the Code of Conduct; and
Discreditable Conduct by failing to report the importation of all goods when entering
Canada from the United States

On Saturday and Sunday, December 6th and7th, 2014 the tribunal convened to receive evidence
and submissions on disposition.
Evidence
Mr. Migicovsky filed two exhibits:
1. The affidavit of Mr. Devon Lehrer, which referred to and contained media clippings
relating to the matters involving Constable Nesbeth and the Canadian Border Services
Agency (CBSA); and
2. The affidavit of Superintendent Michael Langlois, which referred to some organizational
changes and realities of the Windsor Police Service and the effect that having Constable
Nesbeth return to active duty might have upon the police service.
After filing these affidavits, Superintendent Langlois was cross-examined by Mr. Ducharme.
The evidence provided by Superintendent indicated that the Windsor Police Service is
undergoing some organizational changes in order to find efficiencies and provide more or
equivalent services within existing budgetary parameters. It was suggested in the affidavit that
the Windsor Police Service cannot absorb an officer who is not trustworthy or who cannot
effectively function in all aspects of the job; including testifying in court. It was Superintendent
Langlois final statement that in his opinion, Constable Nesbeths usefulness to the Windsor
Police Service has been spent.
During Superintendent Langlois cross examination, it was revealed that there are several
officers who are currently employed with the police service who have been found guilty of
various allegations in various legal proceedings. Some were convicted of criminal offences and
all, it appears, were found guilty of misconduct. It was suggested that this illustrates very
clearly that convictions for serious misconduct and even criminality do not automatically result
in the officers being dismissed from the service.

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Submissions by Counsel
By the Prosecutor
Mr. Migicovsky opened his submissions by reminding me that Constable Nesbeth had been
found guilty of serious misconduct; deceit and discreditable conduct. In his view, the only
appropriate penalty would be dismissal. In order to assess the appropriate disposition of these
matters, it was the prosecutors opinion that we needed to revisit the context of the evidence
that resulted in these two findings of misconduct.
I was referred to the letter written to the Windsor Police Service by the Regional Director of the
CBSA, in which he voiced serious concerns about the potential that Constable Nesbeths
conduct at the border diminished the relationship between the Windsor Police Service and the
CBSA.
It was also pointed out the importance of bearing in mind the fact that after the incidents at the
border, there has been no remorse nor recognition of wrong-doing by Constable Nesbeth. The
evidence of Constable Pocock, who was not cross-examined, suggested that Constable Nesbeth
had a desire to target Border Service Officers as retaliation for the actions taken against her at
the border. While this fact might not appropriately act as an aggravating factor, it certainly
seems to suggest a frame of mind that Constable Nesbeth felt that she was wronged. This leans
heavily toward indicating no remorse and no recognition of the seriousness of her
transgressions.
I was also taken to the tribunals Reasons of October 17th, 2014 in which it was found that
Constable Nesbeths assertion that she had not purchased any alcohol to be absurd. It is was
also observed that Constable Nesbeth had rolled the dice in an attempt to evade paying duty
and taxes on many of the purchases she and her mother had made while in the United States.
During the investigation and the hearing, she was playing a game of semantics around the
precise wording of questions posed by the investigators and the prosecutor; thereby
attempting to evade responsibility for her conduct while at the border. In Mr. Migicovskys
words, Constable Nesbeth had spun a web of lies and deceit for 3 years to avoid
responsibility.
In these same Reasons, it was found that Constable Nesbeth was aware of the alcohol in the
vehicle and that various statements she made to the CBSA Officers at secondary were
untruthful. Many of the answers she gave under oath were similarly untruthful. She
attempted to deceive Officer Smith at primary; she attempted to mislead the officers at
secondary; she attempted to mislead the investigators and then she attempted to deceive this
tribunal when she denied having made the statements she made to the CBSA officers. Her
dishonesty under oath, or at best, her attempts to evade responsibility through semantic

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creativity while under oath cause great concerns about her ability to effectively testify under
oath as she would be required to do in her role as a police officer.
It was Mr. Migicovskys view that in November 2010, while answering Professional Standards
Investigators questions months after the events at the border, Constable Nesbeth uttered
numerous statements that were untrue. These statements related to whether or not she
indicated to Officer Smith that she was in law enforcement; whether or not she had purchased
any alcohol; whether she had purchased just groceries.
I was reminded of the three key factors in determining whether dismissal is an appropriate
disposition as cited in Williams1. These factors being the nature and seriousness of the offence,
the officers ability to reform or rehabilitate and the damage to the reputation of the police
service if the officer remained on the police service.
When considering these three aspects as they relate to the matters presently before the
tribunal, it was Mr. Migicovskys conclusion that all three point to dismissal. These are very
serious allegations including deceit and the officer has demonstrated no rehabilitative
potential.
The prosecutor next pointed to other disposition considerations. In Krug2, the Commission
cited Paul Ceyssens text, Legal Aspects of Policing, in listing the various factors that need to be
assessed in determining a disposition. These factors are:
1. Public interest;
2. Seriousness of the misconduct;
3. Recognition of the seriousness of the misconduct;
4. Employment history;
5. Need for deterrence;
6. Ability to reform or rehabilitate the police officer;
7. Damage to the reputation of the police force;
8. Handicap or other relevant circumstances;
9. Effect on police officer and police officers family;
10. Management approach to misconduct in question;
11. Consistency of disposition;
12. Financial loss resulting from unpaid interim administrative suspension, and
13. Effect of Publicity
It was also pointed out that in Krug, the Commission indicated that there is no requirement that
any one factor be given more weight than another and that the seriousness of the offence
alone may justify dismissal. Furthermore, aggravating factors can serve to diminish the weight
of any mitigating factors. It was Mr. Migicovskys view that in the matters now before this
1
2

Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047


Krug and Ottawa Police Service, January 21, 2003 (O.C.C.P.S.)

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tribunal, mitigation is so minimal and aggravating factors are so serious that dismissal is the
only option.
The Prosecutor pointed out that the Public Interest is a consideration in every single case of
police misconduct. Whatever disposition is decided upon, it must tell the community that the
police officer has received an appropriate sanction. In these matters, the public must be
satisfied that Constable Nesbeths conduct, having taken place over a very long time period, will
be dealt with appropriately. Constable Nesbeth is a police officer in a border city. The CBSA is
very concerned that her behaviour will damage the important and necessary working
relationship between the Windsor Police Service and the CBSA.
Given her repeated efforts to mislead the service and this tribunal, Constable Nesbeth has
demonstrated that she is not trustworthy. The public must be assured that police officers are
trustworthy. The only effective way to reassure the public in relation to this officer in these
matters is to dismiss her from the police service.
When considering the seriousness of the misconduct, it is important that it not be forgotten
that this was not a single act; it was a series of acts over a protracted period of time. The
misconduct involved ethical impropriety and deliberation. These are very troubling
characteristics indeed. Mr. Migicovsky pointed out that a series of events, such as we have in
these matters, can be treated more seriously than a single, compulsive act. The series of events
before this tribunal began when Constable Nesbeth attempted to mislead Officer Smith at
primary and continued through secondary, through the investigation and included her sworn
testimony before the tribunal.
I was referred to Brown & Beattys, Canadian Labour Arbitration. When addressing unethical
conduct, the authors stated the following:
An employees trustworthiness can be called into question by acts of dishonesty that
do not involve deprivation of property or a financial loss. Indeed, some behaviour is
so unethical and so inconsistent with the goals and objectives of an enterprise that it
raises real doubts about the employees capacity and/or willingness to adhere to the
most fundamental rules of honesty and loyalty.3
It is the prosecutors view that these matters fit precisely into the description offered by Brown
& Beatty. Both convictions relate to ethical improprieties and Constable Nesbeth has misled
everyone we are aware of that dealt with her in these matters. Had this been an impulsive act,
it would be expected that Constable Nesbeth would have come clean at the first opportunity.
Rather than doing that, however, she tried to concoct a story and then elaborated and further
misled people in an attempt to escape liability.

Canadian Labour Arbitration, (online version); Donald Brown, Q.C., David Beatty; Canada Law Books
Unethical Conduct, p. 1

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The third aggravating factor referred to by the prosecutor was the officers absolute lack of
recognition of the seriousness of her misconduct and the accompanying lack of remorse. When
examining past decisions, it is not unusual that remorse or recognition of the seriousness of the
misconduct is seen as a strong indication of rehabilitative potential. Generally speaking,
remorse is often indicated by a guilty plea, cooperation with investigators and/or an apology for
the misconduct. None of these indicators is present in the matters before the tribunal. Mr.
Migicovsky cautioned that if an apology were to be offered at this juncture, its weight would
need to be assessed to decide if it ought to be considered as a mitigating factor in any fashion
whatsoever.
In this regard, I was referred to Clough and Peel Regional Police Service. In their decision when
addressing the mitigating impact of an apology, the Commission stated:
The First Hearing Officer also downplays the importance of a written apology
to him from Const. Clough which, he said, rings hollow and I assign it little weight
in terms of mitigation. Hearing officers are entitled to assess the sincerity of a
letter of apology. In our view, the mere existence of a letter of apology does not
equate to automatic mitigation.4
In More and York Regional Police Service, where an officer apologized and reimbursed money, it
was observed that while this seemed sincere, it was late in the day and the Hearing Officer
didnt observe a great deal of enthusiasm. The Hearing Officer also observed that there
appeared to be no remorse.5
In Nelles and Cobourg Police Service, the Commission spoke of the officers apology:
His last minute apology and expression of regret is of little comfort.6
Mr. Migicovsky suggested that the sole mitigating factor available to assist Constable Nesbeth is
her employment history, which is a standard consideration in any labour-related matter. This
officer has 20 years of policing experience and has no disciplinary matters on her file. Her
evaluations are positive, with the occasional negative comments. It was observed that from
time to time, Constable Nesbeth speaks her mind without perhaps considering the potential
impact of her words on others. It was suggested that a softer approach to criticism or
responding to orders might be in order. The sum total of her evaluations would be positive,
with the occasional negative comments.
Her personal conduct sheets contained many examples of positive work that Constable
Nesbeth has done over her career.

Clough and Peel Regional Police Service, October 3, 2014 (OCPC), para. 107
More and York Regional Police Service, March 26, 2001 (OCCPS), p.7
6
Nelles and Cobourg Police Service, May 3, 2007 (OCCPS) p. 15
5

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It was Mr. Migicovskys view that the Commission emphasizes the importance of the officers
ability to reform or be rehabilitated; even in cases of serious misconduct. In the matters now
before this tribunal, it was suggested that there is no basis to suggest either reform or
rehabilitation is likely or probable. I was referred to Ceyssens text in which he refers to
Williams and Ontario Provincial Police:
To the issue of the ability to reform or rehabilitate the officer, it has been found that the
appellant had the time and opportunity to report the crime long after it occurred but
failed to do so. He further compounded his misconduct by failing to provide fellow
officers conducting an investigation with correct information. These actions, afforded
the opportunity of reasoning, indicate a serious lack of moral judgmental qualities
required in a police officer. It is very doubtful that an opportunity for rehabilitation
would correct what would appear to be a fundamental character flaw.7
It was suggested that Constable Nesbeths overall conduct has called her ability to reform into
question through a series of events, such as attempting to mislead border services officers, her
employer and this tribunal. This conduct seems to suggest very strongly that there is a basic
character trait of dishonesty and meaningful indications of an ability to reform or rehabilitate
are absent. Consequently, reform or rehabilitative potential cannot be considered as a
mitigating factor. It was also suggested in Ceyssens text that dishonesty while testifying at a
disciplinary hearing can operate as an aggravating factor8. Such conduct under oath is an
indication of the officers trustworthiness. In a similar vein, in Trumbley and Pugh9, the
Commission observed that it would be improper to increase a penalty for lying under oath, but
it was not improper to consider such an act as an indication of future usefulness.
In terms of an officers credibility and the resultant usefulness to the police service, the Ontario
Police Commission, in upholding the officers dismissal in Hinds, observed as follows:
[i]t is an essential part of the duty of a police officer to testify in court.
When a police officers credibility is destroyed, as [this police officers]
credibility has been, he can no longer function as a police officer.10
The same or similar approach is found in the labour context. Even when the original
misconduct is not sufficient to dismiss, when an employee misleads the employer or the
tribunal, it is an aggravating factor because it impacts on the necessary and important bond of
trust between the employee and the employer. In Delta Faucet Canada, the grievance
arbitrator observed as follows:
Further, the grievor was not a credible witness, and I am not satisfied
that he testified truthfully at this hearing. The exercise of discretion to
7

Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 at 1061


Legal Aspects of Policing, Ceyssens & Childs, (Earlscourt Legal Press), p.5-225
9
Trumbley & Pugh & Metropolitan Toronto Police Service, (OCCPS) May 1986
10
Hinds and Ontario Provincial Police (1990), 2 O.P.R. 880 at 881 (O.P.C.)
8

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vary a penalty in such a serious case where trust is an issue becomes


virtually indefensible where a grievor tries to mislead.11
A similar approach relating to dishonesty is found in VHA Home Health Care and OPSEU,
wherein the arbitrator cited dishonesty as a cause for not considering reinstatement and also
interpreted the dishonesty as an indication that the employee had not accepted any
reasonability for her actions.12
Oliver v Canada (Customs and Revenue Agency) illustrates the potential impact of misleading
during an investigation and accepting responsibility for ones actions. In this matter, the Public
Service Relations Act Staff Relations Board found as follows:
The recognition of culpability or some responsibility for his or her actions is a
critical factor in assessing the appropriateness of the discipline. This is
because the rehabilitative potential of the grievor is built on a foundation of
trust, and trust starts with the truth. If a grievor has misled his employer,
failed to cooperate with the legitimate investigation of the allegations of
conflict of interest, and refuses to admit any responsibility in the face of
evidence showing wrongdoing, then re-establishing the trust necessary for an
employment relationship is impossible.13
It was Mr. Migicovskys submission that the entire quotation from Oliver applies to the matters
now before this tribunal.
I was next referred to Alcan Foil Products wherein a dismissal was based on an employee lying
to the employer about damage and delayed reporting the damage. In this decision, the
arbitrator observed as follows:
He provided a misleading version of the relevant events at the hearing,
the same version which caused the Employer to lose trust in him.
If Mr. Jovanovski had acknowledged his wrongdoing and testified honestly
at the hearing, there may have been a basis for substituting a lesser penalty.
However, having regard to the nature of his misconduct, his refusal to
acknowledge that misconduct and his lack of credibility at the hearing,
I am compelled to conclude that it would be inappropriate in these
circumstances to substitute a lesser penalty.14
It was the prosecutors submission that Constable Nesbeth lied to CBSA officers, lied to her
employer and lied to this tribunal and in that respect, these matters are on point with both

11

Delta Faucet Canada v. U.S.W.A. Local 2699, 1998 CarswellOnt 5584 (Ontario Arbitration) para. 38
VHA Home Health Care and OPSEU, 2013 CarswellOnt 13842, para. 89
13
Oliver v. Canada (Customs and Revenue Agency), 2003 PSARB 43, para 103
14
Alcan Foil Products and USWA, Local 8754 (Jovanovski), 2000 CarswellOnt 9142, para. 52
12

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Oliver and Alcan Foil. Her intent to mislead over a span of time is extremely troubling and has
irreparably harmed the employment relationship.
Before moving on to speak in some detail about the letters of reference and support that were
filed on Constable Nesbeths behalf, I was cautioned about the weight that ought to be
afforded these unsworn letters. Since the information contained in the letters could not be
tested through cross-examination, and since we have no way of knowing the precise
information upon which these individuals wrote these letters, it would be dangerous to afford
them significant weight.
The Prosecutor also raised issues of concern regarding two of the letters. These letters were
written by individuals who had some history with policing and/or the CBSA. One of these
letters was written by a former Amherstburg Police Officer who left that police service under
some questionable circumstances. Another was written by an individual who had had a
previous run-in with the CBSA Officers at the Windsor / Detroit border crossing.
I was asked to bear these sorts of issues in mind when assessing the weight and/or attempting
to determine the reliability of letters such as these. The details that are not available to be
assessed create questions around the actual value of such letters.
One significant issue that was raised within one of the letters of support was the issue of
racism. The author suggested that people of colour experienced difficulties at the border on a
regular basis and that if one was not a person of colour, he or she could not possibly
understand. Mr. Migicovsky took issue with the suggestion that racism played a role in
Constable Nesbeths issues at the border and that it was irresponsible to raise it as an issue
when there was not one scintilla of evidence suggesting anything of the sort. It was suggested
that blaming racism was further evidence of a lack of remorse or recognition of wrongdoing on
Constable Nesbeths part.
Mr. Migicovsky next moved on to discuss many of the letters of support in some detail. In
essence, he addressed these letters from the perspective of why or how the letters did little to
assist the tribunal in its decision-making related to disposition and/or how the letter might have
illustrated the authors lack of full and complete disclosure of the details of the tribunals
findings. I will not detail all that was discussed in this area of the prosecutors submissions, but
I will address certain of his views.
Alfredo Pizzacaroli is a member of the Windsor Police Service. He had frequent and ongoing
contact with Constable Nesbeth for approximately three years while she was reporting in to
Professional Standards. His letter suggests that;
On occasion Constable Nesbeth has displayed frustration with
what she perceived to be unfair and biased treatment surrounding

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the allegations against her.15


It was Mr. Migicovskys suggestion that this description of Constable Nesbeths attitude while
interacting with the officer at Professional Standards is a further indication of her inability to
accept responsibility for her actions.
Other letters seemed to suggest that Constable Nesbeth was an honest and trustworthy
person. It was Mr. Migicovskys suggestion that these descriptors appear to be at odds with the
behaviour exhibited by Constable Nesbeth throughout the border incidents themselves, the
investigation and the hearing into the allegations of misconduct; all of which have taken place
over a period of four years.
When describing the use to be made of letters of support such as those before this tribunal, it
was suggested that the letters are most often helpful in assessing the likelihood of
rehabilitation or reform. The character traits and descriptions appearing in the letters might be
such that there is a strong likelihood or potential for rehabilitation. Because of the nature of
letters of support, i.e., not sworn and tested through cross-examination, the letters need to be
approached with some caution.
In Nelles and Cobourg Police Service, the Commission found that the Hearing Officer was
correct in concluding that the positive character references,
were insufficient to mitigate against immediate dismissal given that
Constable Nelles had, irreversibly harmed his relationship with his employer.16
In Barlow and Ottawa Police Service, the Commission address Constable Barlows good works
and good character evidence. The Commission agreed that, their value does not outweigh the
totality of Constable Barlows conduct.17
Mr. Migicovsky also referred to Groot18, Hassan 19and McDowell 20in relation to the limited
usefulness of character letters in accurately assessing an officers rehabilitative potential.
Letters such as these are only one aspect of many that need to be weighed and assessed in
determining if an officer if likely to be successfully rehabilitated. In McDowell, the Disciplinary
Panel of the Law Society of Manitoba cited Gavin McKenzie in his book, Lawyers and Ethics
Professional Responsibility and Discipline:
Character evidence is common and can be persuasive, but it is much less
valuable if the witnesses are not fully informed of the facts. Even then, it
15

Letters of Reference (Exhibit 33), Tab 2, para. 3


Nelles, supra; p. 15
17
Barlow and Ottawa Police (OCPS - #11-10), 2011, para. 73
18
Groot and Peel Regional Police Service, April 5, 2002 (OCCPS
19
Hassan and Peel Regional Police Service, December 8, 2006 (OCCPS)
20
Law Society of Manitoba v. McDowell, 2007 MBLS 9; October 1, 2007
16

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Is difficult to gauge the extent to which the evidence is affected by factors


such as friendship. Virtually all lawyers are responsible for some good
deeds, and virtually all are held in high esteem by some other lawyers and
clients. The disciplinary panel must ensure that the process is not transformed
from a deliberative process into a referendum among members of the
profession.21
I was also reminded that as a result of McNeil22, disciplinary histories of witness officers in
criminal trials have to be disclosed and when a police officer has been found to have been
deceitful, as in the matters before this tribunal, such findings can create immeasurable harm to
the officers credibility.
Mr. Migicovsky also referred to Telus, wherein the arbitrator observed the following:
The letters attesting to the grievors character, his own assurances of
his future reliability, as well as his long and unblemished work record
are important mitigating factors. However, the central issue of the
grievors honesty remains in doubt here because of his demonstrated
unwillingness to come forward and tell the truth when asked very straightforward
questions on more than one occasion about whether or not he had taken
company property without permission. The result of the grievors behaviour
is that he has put himself in a position where he cant be trusted as he was
before the incident in October 1997. That element of trust is the bond that
seals any employment relationship and one that unfortunately cannot be
repaired in this case. It is my view, for all the above reasons, that
discharge was not an excessive response under the circumstances.23
When speaking of the effect on the officer and the officers family, the Prosecutor admitted
that every dismissal case is difficult and this one is no different. There is nothing to suggest that
Constable Nesbeth and her family will suffer more negative effects than any other police officer
in the same predicament.
I was referred to the matter involving Constable Colin Little and the Windsor Police Service24.
Constable Little had pled guilty to the allegations of misconduct and after a penalty hearing, he
was dismissed. It was Mr. Migicovskys position that the fact situation in Little was much more
serious than in the matters involving Constable Nesbeth, but that there were also more
mitigating factors as well.

21

Lawyers and Ethics Professional Responsibility and Discipline (2003), Thompson Canada Limited pp. 26-45

22

R. v. McNeil, 2009 SCC 3,

23

Telus Communications (Edmonton) Inc. v. I.B.E.W., Local 1007, 1999 CarswellNat 3852, para 16
Const. Colin Little and Windsor Police Service (unreported), Supt. Richard Finn, Hearing Officer January 2011

24

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The damage to the reputation of the police service was addressed, and described as one of the
standard considerations in assessing an appropriate disposition. Ceyssens, at page 5-232
observes as follows:
Damage to the reputation of the police force is a standard disposition
consideration. This factor may attract greater weight where particular
misconduct occurs in a smaller community. Tribunals have interpreted
damage to capture both damage arising from the original misconduct,
and damage that would occur to the reputation of the police force
were the respondent police officer to remain a member.25
Mr. Migicovsky observed that in these matters, there can be no doubt that the police services
reputation has been damaged by Constable Nesbeths conduct; including its reputation with
the Canada Border Service Agency as illustrate by the Regional Directors letter to the Chief of
Police. From the moment she let it be known that she was a police officer, her conduct became
the subject of scrutiny from an entirely different perspective. Her actions in continuing to
mislead the CBSA Officers at secondary have diminished the police services reputation.
The prosecutor suggested that if the disposition of these matters is anything less than dismissal,
it will send a message to the community that a police officer can act with impunity. If this the
takeaway from these proceedings, why would anyone from the community not feel they ought
to be able to act in a similar fashion?
The significant media coverage of these matters has brought great discredit to the services
reputation. I was referred White & Reid where the Commission observed as follows:
Apart from its prejudice to overall discipline, the reputation of the Service has
also been damaged. The local media became aware of the misconduct and in
fact attended at the sentencing hearing on October 15, 2999. The Windsor Star,
CKLW, CBC Radio, CIMX FM and CBC RV were all present.
Police officers are expected to maintain the respect of their community and his
type of conduct cannot be condoned or overlooked. On a daily basis, police
officers are called upon to perform difficult tasks which seldom come to the
attention of the general public. By contrast, acts of misconduct such as those
committed by Constables White and Reid receive considerable attention, are
remembered and tarnish the image of the entire Service.26
When discussing consistency in dispositions, I was referred to Little27, where the Windsor
officer was dismissed for bringing goods back across the border into Canada. The events that
25

Williams and O.P.P. (supra)


White & Reid and Windsor Police, November 10, 2000 (OCCPS), p. 9
27
Little and Windsor Police Service, January 28, 2011 (HO Finn)
26

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brought Little before a hearing officer occurred in April 2009. The hearing was held in
November 2010 and the matters received a lot of media attention. After pleading guilty to the
allegations, the officer was dismissed. It was worth noting, in the prosecutors view, that
Constable Nesbeths difficulties arose in July 2010 at a time when the Little matters were
ongoing and presumably well-known within the service.
It was pointed out that perfect consistency is not achievable. It was also pointed out that
Deceit allegations are among the most serious that a police officer can face; particularly since
deceit is the antithesis of what police officers ought to be all about.
I was asked to consider Cirillo and York Regional Police Force28. In that matter, the officer was
found guilty of deceit for having made a dishonest entry in his notebook and in a voice entry in
the Forces records system. Cirillos employment history did not mitigate penalty, in the
Commissions view. There was nothing on the record that suggested remorse of reformation.
The Commission pointed out that it had been suggested that Cirillo did not do what he did for
personal gain. The Commission then went on to ponder how far the officer would go if there
was personal gain to be realized. At the end of the day, what seemed to turn the Commission
toward dismissal was the apparent lack of remorse and reformation regarding Constable Cirillo.
Parsons and Halton Regional Police29 was referred to. In that matter, an officer with 21 years
service was permitted to resign within 7 days or be dismissed. The Ontario Police Commission
upheld the penalty because of very serious deceit. The officer had deceitfully indicated that a
tire iron was no longer required to be held as evidence in an investigation.
Wilson and O.P.P.30is a case that involved a false entry in an occurrence book relating to a
collision investigation. It is also worth noting that Constable Wilsons testimony was found to
also be questionable, which compounded the deceit by placing his integrity at issue. The
Commission found his integrity to be wanting and upheld the Hearing Officers penalty of
resignation within 7 days or be dismissed.
Fortner and Goderich Police Service 31was a matter involving the officer making a false
statement in a notebook which resulted in another officer being charged with a criminal
offense. In its decision, the Ontario Police Commission suggested that,
Our whole police system involves a relationship of trust in Police Constables and
Officers beyond that demanded of citizens generally. Police have special
powers and, in consequence, the highest standards of conduct are imposed.
Indeed, the system cannot function properly unless trustworthiness exists in the
eyes of the Force, the public and the Courts before which Police are frequently
called to give evidence.
28

Cirillo and York Regional Police Force, May 22, 1991 (OCCPS)
Parsons and Halton Regional Police Force, May 1, 1989 (OPC)
30
Wilson and Ontario Provincial Police, May 27, 1982 (OPC)
31
Fortner and Goderich Police Service, August 18, 1975 (OPC) pp. 2-3
29

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The Commission upheld the disposition of resignation within 7 days or dismissal.


The Prosecutor submitted that all of the cases cited related to deceit some more serious than
others. Once the trust relationship has been broken, he suggested that the officer could no
longer make a contribution to the service. When deceit it related to other misconduct,
dismissal is demanded.
Police officers in todays environment cannot be hidden from public view, or more particularly,
from the courts. The Police service is undergoing some organizational changes that amplify the
need for all officers to be 100% operational. Constable Nesbeths deceit will be a beacon for
any defense counsel whenever she is required to testify in court; something that will have a
very negative impact on the operational effectiveness of the police service.
I was asked to consider the Commissions conclusions in Morden and Peel Regional Police:
Moreover, if a police officer who is unable to carry out their duties effectively is
retained on the force and given the same responsibilities as every other officer, in
the eyes of the public, the effectiveness of the service as a whole and, therefore, the
administration of the law will be brought into disrepute. Where the public has no
faith in the police service to carry out its function effectively the police service loses
its ability to preserve the peace and protect society from crime.
We find, therefore, that the Hearing Officers conclusion that Constable Morden
cannot remain in the police service is both proper and acceptable.32
It was submitted that the available case law makes it abundantly clear that deceit and
discreditable conduct can justify dismissal especially when they involve serious ethical
improprieties. It was further submitted that dismissal is not a punishment or retribution; rather
it simply indicates that the police officers relationship with the police service is such that the
trust relationship has been broken. Dismissal permits the employer to rid itself of an employee
whose usefulness has been annulled. This has been adopted by the Supreme Court as the
appropriate standard in McKinley33.
In McKinley, the Court observed as follows:
In light of the foregoing analysis, I am of the view that whether an employer is
justified in dismissing an employee on the grounds of dishonesty is a question that
requires an assessment of the context of the alleged misconduct. More specifically,
the test is whether the employees dishonesty gave rise to a breakdown in the
employment relationship. The test can be expressed in different ways. One could
32
33

Morden and Peel Regional Police Service, March 20, 1997 (OCCPS) p. 7
McKindley v. BC Tel, (2001) 2 SCR 161, 2001 SCC 38 (CanLII)

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say, for example, that just cause for dismissal exists where the dishonesty violates
an essential condition of the employment contract, breaches the faith inherent to
the work relationship, or is fundamentally or directly inconsistent with the
employees obligations to his or her employer.34
In applying this passage from McKinley to the matters before this tribunal, Mr. Migicovsky
suggested that if Constable Nesbeth had been honest during the investigation and been honest
before the tribunal, perhaps arguing for dismissal would not be justified. There is no basis to
believe that Constable Nesbeth can rehabilitate, however. There is every reason to believe that
her usefulness to the Windsor Police Service has been annulled.
I was brought to a number of other cases that stand for the proposition that once the trust
relationship has been broken, the employees usefulness to the employer has vanished.
Buckle 35was one such case where deceit resulted in charges of discreditable conduct. While
testifying before the tribunal, it was found that he was, once again, deceitful. The Hearing
Officer rejected his testimony, which had a serious negative impact upon his credibility. The
penalty of dismissal was upheld by the Commission and the Divisional Court.
In Bright v. Konkle36, the Board of Inquiry stated that,
A finding that in effect an officer is deliberately lying is more than a weighing of
evidence in a particular proceeding, it is an indictment of an officers character.
Good character in a police officer is essential to both the publics trust in the officer,
and to a police services ability to utilize that officer. The public has a right to trust
that its police officers are honest and truthful, and that, absent extenuating
circumstances, they will not be officers any longer if they breach that trust.
From the point of view of the police service, if it has good reason to distrust that
officers word, it can never rely on him. It must keep his actions under constant
surveillance. It may have to constantly double-check everything that he vouches
for. It may be prevented from assigning him to a position of responsibility. It would
have great difficulty asking the public to trust that individual.
In short, the issue of an officers integrity is so central to (the) exercise of his job
that it is difficult for the Board to see how this issue can ever be overemphasized in
circumstances such as these.37
In summarizing his submissions, Mr. Migicovsky suggested that Constable Nesbeths ability or
willingness to mislead the CBSA officers, the PSB Investigators and this tribunal must all be
34

Ibid., p. 21
Buckle and Ontario Provincial Police, May 11, 2005 (OCCPS); 2006 CarswellOnt 815 (Div. Ct.)
36
Bright vs. Konkle, 2 P.L.R. 481 (Bd. Of Inq.)
37
Ibid., para 43 - 46
35

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considered in assessing her rehabilitative potential. When all things are considered, Constable
Nesbeths employment history and, to a much lesser extent the character references, are the
only mitigating factors in her favour. She has demonstrated a lack of trustworthiness; a lack of
honesty. She has attempted to mislead almost everyone she has dealt with in relation to the
allegations against her since the moment the incidents occurred. I was asked to consider that
there can be no doubt that her usefulness to the Windsor Police Service has been spent.
Submissions by Defense
Mr. Ducharme opened his submissions on penalty by suggesting that the penalty of dismissal
would violate well-known principles of law. The principles being referred to by defense are:
1. As a First Offender, with no prior record, the tribunal ought to deal with these
allegations leniently. There is agreement that Constable Nesbeth is a first time
offender.
2. Constable Nesbeths exemplary background, her positive evaluations and numerous
commendations for her work, when combined with the numerous letters of support
surely must indicate leniency.
3. Corrective discipline must occur in steps progressively. Moving to dismissal based
upon the facts of this situation would be excessive, and
4. Discipline should be consistent with similar cases. Constable Nesbeth was suspended
when there was no record of discipline. These convictions are her first offences.
When examining the Evaluations package (Exhibit 34), the positive notes speak for themselves.
Comments such as job well done, patience, professionalism, good job, good work,
thoroughness, compassion, great asset, objectivity, etc., all very strongly suggest that
Constable Nesbeth is and has always been an asset to the police service.
In her evaluations, it was pointed out that her scores were consistently above 9 out of 10. Up
to and including the time of her suspension, her lowest score was 9.5 and her highest was 9.8;
including two at 9.75.
Mr. Ducharme stated very clearly that when considering some of the examples put forth by the
prosecution, they were easily distinguishable from the facts before this tribunal in that all of the
examples cited by Mr. Migicovsky was deceit in the course of their duties as police officers.

Cirillo had deceitful entries in official reports;


Parsons failed to follow orders falsely reported that evidence could be disposed of
Wilson made false statements in an official document (and attempted to cover it up)
Fortner made a false entry in an official document failed to disclose evidence for or
against a fellow officer

There are many cases of deceit that do not result in dismissal.


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Rettig found guilty of theft criminally committed in the course of his duties he is
still an officer
Bridgeman made false reports about the beating of a doctor. Video showed the truth
and the officer attempted to blame the victim. Bridgeman is still an employee
Little (Tab 16) the nature of the deceit was serious numerous charges
Kettlewell stole lottery tickets from a victim. Falsified reports. After pleading guilty to
the offence, denied stealing the tickets said he was mistaken. He is still a police
officer.

All of those cases involved serious deceit in the course of their duties. Professional Standards is
well-aware of all of these matters.
Constable Nesbeth was not in the course of her duties. These events unfolded while she was
returning from a shopping trip with her mother and daughter. It is not that she did not make a
declaration at all. She declared for herself. A decision was made by very senior people within
CBSA that no charges would be laid and her mother had her alcohol seized. Customs was quite
content that this would be an appropriate way to deal with the situation.
Constable Nesbeth was not caught smuggling. So whether or not smuggling is serious, that it
truly irrelevant. She has been found guilty of deceit not smuggling. The newspaper articles
that speak about smuggling are completely incorrect. Smuggling was never charged and
obviously there was never a conviction for smuggling. Smuggling is simply a
mischaracterization of what occurred at the border that day.
The letters of support that were submitted as character evidence are of some assistance in
helping the tribunal understand a little more about the individual, Dorothy Nesbeth. It is not
uncommon that this evidence is entered in this fashion (unsworn) and they are clearly
admissible. It is worth noting that these letters offer an insight into Constable Nesbeths
character, empathy and thoughtfulness. Several of the letters are from charitable organizations
and some are from victims crime.
Regarding the adverse media coverage, Constable Nesbeths greatest regret is that all of this
has reflected badly on the Windsor Police Service. While it is admitted that the coverage has
been extremely unfavourable, it must be pointed out that the vast majority of the coverage
relates to officers being paid while under suspension. It needs to be pointed out that Constable
Nesbeth offered to return to work to do anything at all and her offer was rejected by the
Service. If she could have returned to work that would have halted the negative media
coverage.
Constable Nesbeth has been in therapy which relates to the public humiliation and shame that
has been caused by the high profile that these matters have taken on. It should be mentioned
that the publicity that has resulted is further augmented by the publicity given to any
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individuals who are paid from the public purse. The Sunshine List is a prime example of the
publics appetite for these sorts of stories.
Mr. Ducharme indicated that ever since these events occurred, Constable Nesbeth has been
back over the border. Whenever she crosses the border, she ensures that everyone in the
vehicle speaks up. People only need to declare what they themselves have purchased. The
Point of Finality can only be reached when the border services officer is confident of what
each of the occupants has declared.
I was asked to consider whether or not this one incident should be permitted to define this
officer. She was a respected officer who was on the list for promotion. In fact, she was third on
the list. As a result of these events, she has been stripped of her promotional chances which
translates into financial penalty of approximately $14,000 for each of the 4 years that she has
been suspended. Constable Dorothy Nesbeths mistake cannot be allowed to define her.
Constable Nesbeth is 49 years old and is a single mother to two children Matthew and
Alexandria. She no longer receives financial support from her ex-husband; losing her job would
be devastating. For a good portion of the year, she also cares for her mother who is currently
back in Jamaica, since she finds the winters here to be quite difficult.
The shopping trip that Dorothy was on with her mother and daughter was intended to make
her mother feel better. Dorothy had just learned that her mother had lymphoma; she found
this out by happenstance through her doctor. Dorothys father passed away during these
proceedings. She has sisters still living in Jamaica and others in Florida.
Because of the emotional and psychological toll these matters have taken upon her, Constable
Nesbeth regularly sees a psychiatrist, Dr. Zaner. It has also been recommended that she see a
psychologist. These are costly visits and her medical coverage has run out. Her son Matthew,
while at school, received taunts from schoolmates and her daughter has also experienced
unpleasantness at school; all as a result of the publication of Constable Nesbeths disciplinary
issues.
Constable Nesbeths last assignment with the police service was in CID, where she conducted
witness interviews and prepared victims for giving testimony. Prior to that she worked in Court
Services, working in the office of the Crown Attorney. Prior to that she was involved in
community services and the VIP Program for school kids; first in grade school and then in high
school. For a long time, the Windsor Police Service Web Site bore Constable Nesbeths
photograph.
The letter from Lorrie Jacobs is important in that she is a retired sergeant and was in PSB when
these events unfolded. She was initially detailed to the investigation. Dorothy was required to
report to PSB Monday through Friday so Sergeant Jacobs met with her daily. It was the
Sergeants view that Dorothy maintained her professionalism throughout these times and that
she would continue to be an asset to the police service.
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Another PSB employee, Pizzacaroli had daily contact with Dorothy for about three years when
she was required to sign in. Pizzacaroli described her as professional and respectful. He
observed that the allegations were not a true representation of the sum of her as a person and
that she was, is and will continue to be a decent, caring and productive member of the service.
It is obvious that Pizzacaroli would have known all of the details of the allegations against her.
Throughout the numerous letters of support that were provided to the tribunal, comments and
descriptions were consistently positive. The authors of the letters used the following terms to
describe Constable Dorothy Nesbeth:
Dedicated, committed, outstanding, great motivator, kind, thoughtful, loves her job
and family, enthusiasm and compassion, passion for policing, hard-working,
dependable, astute, confident, role model and symbol, professional, integrity, good
citizen, respectful, honest, straightforward, calm, understanding and good moral
character
I was asked to consider the assessment of a disposition as an individualized exercise; taking into
consideration all of the circumstances around the offence and the offender. I was taken
through the usual disposition considerations.
I was reminded of the importance of progressive discipline and it was pointed out that the
Windsor Police Service has in place a directive relating to progressive discipline. It was provided
in the Sentencing Brief at Tab 1. It was pointed out that the Service insists that discipline shall
be fair, reasonable and consistent. Generally speaking, the policy indicates that discipline is to
get progressively more severe if the employee fails to correct behaviour.
Constable Nesbeths employment history is exemplary. She has had an outstanding career and
is a valuable and valued member of the community. These factors must be considered to
significantly mitigate to a point somewhere less than dismissal.
By all indications, the misconduct before this tribunal is aberrant behaviour. It did not occur
while on duty and that too ought to suggest a less onerous penalty than that being suggested
by the prosecutor.
As further amplification of the notion that employment history needs to have a serious
mitigating effect upon disposition, I was referred to Kelly and Toronto38, in which Constable
Robert Kellys employment record played a role in the Commission varying Kellys penalty from
dismissal to demotion with significant conditions.
Mr. Ducharme also reminded me that in Williams, the Commission pointed out that an officers
employment record is a strong factor. Constable Nesbeth has been in policing since 1993.
38

Toronto (City) Police Service v. Kelly [2006] OJ No 1758 (ON SCJ)

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Throughout that time, she has taken on various roles and worked in various departments and
has always demonstrated leadership and community involvement. Her evaluations and other
assessments have been consistently high and very positive.
At Tab 1 of Exhibit 34 (Evaluations of Dorothy Nesbeth) is a list of commendations. The list goes
on for three pages. It was suggested that dismissing someone of this calibre, based on the
allegations before the tribunal would be unreasonably harsh.
Mr. Ducharme reminded me of the context of these allegations in order that I might be
properly equipped to consider all of the factors that are relevant to disposition.
Constable Nesbeths mother was living with her in Windsor. Her mother hadnt told her about
her cancer. In or around December 2009, Constable Nesbeth was placed on the promotional
list. That promotional potential has disappeared. Almost 5 years have passed since she went
on that list. She has already suffered financial loss. She has been suspended since August
2010. This was a discretionary decision by the police service and even though Dorothy has
offered to continue working, she was not permitted to do so. She is not able to control that.
She has maintained her desire to return to work.
At the border, Constable Nesbeth was given a warning by the CBSA. In the absence of criminal
behaviour and given the fact that the alcohol was claimed by Dorothys mother, her misconduct
ought to be at the lower end of the scale. Once the community understands that there was
never any smuggling involved in these allegations and that no charges were even brought in
relation to the incident at the border, the true seriousness of these allegations is brought into
sharper focus. There have been other officers in the Windsor Police Service who have done far,
far worse things who have remained in the police services employ.
Since this is her only means of support, Constable Nesbeth wants very much to return to work.
Even more important than the financial aspect, Constable Nesbeth wishes to redeem herself.
What happened was an error in judgment; a small part of one day in an otherwise unblemished
record.
In the 69-year history of the Windsor Police Service, very few minority officers have moved up
through the ranks. If Constable Nesbeth had been promoted, that would have been unique. It
is safe to say that Constable Nesbeth takes her position as a successful African-Canadian
woman very seriously.
This incident at the border should not define Dorothy Nesbeth since she has a very high
probability of continued usefulness to the police service. She has been in policing her entire
adult life. Her loss of employment or even a demotion would be awful.
At some point, there were settlement discussions between Constable Nesbeth and the Windsor
Police Service. It was Mr. Ducharmes wish that these settlement documents become part of
this record. It was his position that the documents would assist the tribunal in assessing the
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true seriousness of these matters. In this regard I was referred to Durham Police and Stenzel39,
which was a Tribunal decision in which the Hearing Officer took into consideration the fact that
an informal resolution had been attempted. The Hearing Officer adopted the not of a serious
nature aspect of informal resolutions in mitigating the disposition of the matters involving
Stenzel40.
Regarding the seriousness of the misconduct, Mr. Ducharme submitted that Constable Nesbeth
considers her misconduct to be serious. There was not personal benefit to Constable Nesbeth
in that the alcohol was her mothers. She is remorseful that her dealings with the CBSA officers
were as they were. She wishes to do nothing that would tarnish the reputation of the police
service and she is rehabilitated. She has maintained her reputation and she has sought out
counselling.
I was taken to Andrews and Midland Police:
Nevertheless, rehabilitation was a key factor in sentencing, especially in a case such
as this where the Appellant had such lengthy and exemplary service. Demotion was
the appropriate penalty in this case, but not to the degree or extent imposed by the
Hearing Officer.

The Hearing Officer failed to give sufficient weight to the principles of rehabilitation
as well as the numerous mitigating factors.41
It was Mr. Ducharmes submission that this disposition needs to focus on Constable Nesbeths
career history and also focus on rehabilitation. Constable Nesbeth ought to be given the
opportunity prove herself and remain a valuable and productive member of the police service.
I was asked to refer to White and Reid42, in which the Commission stated the following in
reducing the severity of the demotions that had been assessed by the Hearing Officer:
As noted earlier, the Hearing Officer gave a great deal of consideration to the
severity of the offence, specific and general deterrence and rehabilitation. The
Hearing Officer also considered several mitigating factors i.e. their apology,
employment records, performance evaluations and letters of support. However, in
reviewing the decision of the Hearing Officer, the Commission believes that
insufficient weight was given to the mitigating factors.43
I was reminded that Constable Nesbeths deceit was not on duty, as were many of the
examples cited by the prosecutor.
39
40

Durham Regional Police Service and Constable Caroline Stenzel October 9, 2012
The tribunal ruled these documents to be inadmissible. Brief reasons can be found on the record.

41

Sergeant Greg Andrews and Midland Police Service [May 1, 2003] (OCCPS), p. 3
White and Reid and Windsor Police Service, November 10, 2000 (OCCPS)
43
Ibid., p. 10
42

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Statement by Constable Nesbeth


Constable Nesbeth asked for and was provided an opportunity to address the tribunal. Her
statement was, for the most part, an apology for behaviour that was described as isolated and
not a true reflection of my personality. Although not under oath, I will consider her words and
thoughts carefully in my deliberations.
Reply Mr. Migicovsky
Mr. Migicovsky raised a number of issues in reply, after Constable Nesbeth, through her
counsel, had made submissions to the tribunal. Below is a very brief summary of the reply
submissions.
Regarding Mr. Ducharmes position that progressive discipline was indicated, it was pointed out
that even an exemplary career history provides limited mitigation in some situations.
Regarding the evaluations, it was pointed out that there are evaluations that refer to negative
qualities, such as personality conflicts with the crowns office, frustration some issues with coworkers, somewhat uncomfortable personal interactions,
Mr. Migicovsky asked that I recognize the fundamental differences between the matters now
before the tribunal and many of the cases referred to; that being that in these matters, there
have been few if any indications of remorse. Those officers who were found guilty of
misconduct but remained employed with the Windsor Police Service or with other police
services for that matter were not dismissed because there had been some rehabilitative
potential identified.
I was asked to recall that on several occasions, Constable Nesbeths misconduct has been
described as a single mistake, when in fact the events that occurred subsequent to the border
crossing are what are seen as indications of a lack of rehabilitative potential. The incident
began when Constable Nesbeth loaded the trunk of the car and it lasted up to the time she was
in the witness box. Included during this time frame were at least two attempts to have other
officers exact revenge on border services personal by handing out traffic tickets as some sort of
payback for her having been jammed at the border. In Mr. Migicovskys view, there were
several instances of misleading testimony or dishonest testimony that raise the level of concern
regarding rehabilitation.
It was suggested to me that progressive discipline presupposes an acceptable level of
rehabilitative potential; with remorse as a prerequisite. Without remorse and some level of
rehabilitative potential, progressive discipline is a non-starter.

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When Constable Nesbeth characterizes the whole situation as an error in judgment, that
raises concerns about her recognition of the seriousness of the misconduct. In the prosecutors
view, it stopped being an error in judgment when she began to lie and began to exact revenge
on the border services officers. Notwithstanding these facts, the officer continues to refer to
an error in judgment.

Discussion
Constable Nesbeth was returning from a same-day shopping trip in the United States when she
was sent to secondary inspection at Canada Customs. After Secondary Inspection, it was
discovered that she had failed to declare some of the goods being brought back into Canada,
including an amount of alcohol and other merchandise.
It is important to note that at no time was Dorothy Nesbeth charged with illegally importing
anything whatsoever from the United States into Canada. The alcohol was claimed by
Constable Nesbeths mother and the only other goods that were being brought back were
merchandise that had been purchased at Target. The groceries that she had claimed are not
subject to duty. So any suggestion the Constable Nesbeth was smuggling goods into Canada
would be factually incorrect.
Evidence at the disposition hearing included some evidence from Superintendent Langlois, in an
affidavit, which was read into the record. At the end of the affidavit, the Superintendent made
the following statement:
The reduction in the authorized strength has resulted in an organization
that cannot support or carry a sworn officer who carries deceit on their
conduct file their usefulness to the organization has been spent.44
Superintendent Langlois opinion is precisely what I have been asked to determine by way of
these proceedings. Respectfully, I take notice of the Superintendents opinion but afford it little
weight.
While listening to submissions on penalty on December 6th and 7th, much of the prosecutors
time was spent speaking of the behaviour or conduct that was alleged to have occurred after
the primary inspection at the Canadian Border.
I was asked to consider Constable Nesbeths conduct at both primary inspection and secondary
inspection, her conduct after having returned to the workplace, her conduct while she was
44

Affidavit of Superintendent Michael Langlois (Exhibit 30), para. 8

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being investigated for these allegations and her conduct while she was before this tribunal. It
was the Prosecutors position that Constable Nesbeths overall conduct from the time she was
stopped at the Border until the end of her hearing indicated a character that was completely at
odds with the values and expectations of the Windsor Police Service. Her inability or refusal to
take responsibility for her actions in any meaningful way suggest very strongly that does not
possess some of the vital character traits required of a police officer.
Because of the protracted nature of her denials and/or exercises in semantics when being
questioned - both during the investigation and while testifying before the tribunal - it was Mr.
Migicovskys position that the relationship of trust that is so vitally important and necessary
between the officer and the police service has been irreparably harmed or destroyed.
Consequently, Constable Nesbeths usefulness to the police service has been annulled.
While receiving evidence and submissions on disposition, it became known that there are
several present-day Windsor Police Officers who have been convicted of criminal offences
and/or found guilty of misconduct. It was pointed out that these examples illustrate that
convictions for very serious misconduct do not automatically result in dismissals. While I am
very aware that such situations occur, I am not familiar with the precise details of the cases that
were raised by Constable Nesbeths counsel in cross-examination of Superintendent Langlois. I
believe it would be dangerous to draw too strong an inference from the fact that there are
some officers who have been found guilty of misconduct and who are still employed as police
officers. Where I have the benefit of reasons by either a Hearing Officer or the Commission, I
can begin to assess the cases relevance to the matters before me. While I take note of the
existence of these cases, they shall remain interesting anecdotes, in my view.
The fact that there are officers who have been convicted of serious misconduct currently
employed with the police service simply illustrates that each fact situation needs to be assessed
on its own merits. If it was automatically assumed that dismissal would result from convictions
of serious misconduct, there would be no need for a tribunal to hold a disposition hearing such
as this one. If it was automatic, this major and important disposition phase of the discipline
process would be unnecessary. That is not and should not be the case. These matters, as
all matters such as these, will be decided on its own merits.
I need to briefly discuss some issues regarding the level of dependability and weight to be
afforded the letters of reference or support that were submitted on Constable Nesbeths
behalf.
As noted previously, the prosecutor raised some issues relating to two of the individuals who
wrote letters of support. One individual had been a police officer with Amherstburg Police
Service, but for unknown reasons was not identified as such. Another of the letter-writers had
had a previous unpleasant situation with CBSA officers at the Windsor/Detroit border and
might have had some animus toward the CBSA.

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As to the letter from the former police officer, I have insufficient details to make a
determination whether this individuals letter ought to receive strong weight for or against
Constable Nesbeth. As to the letter from the individual who had had a previous dealings with
CBSA Officers at the border, similarly, I have insufficient information before me to determine
whether this letter works for or against Constable Nesbeth.
As a result of the information I have before me regarding these two letters and the individuals
who wrote them, a question has been raised about the letters reliability and objectivity. As
suggested in the previous paragraph, I have insufficient information to make an informed
decision on these letters. Consequently, I will be disregarding these two letters in their entirety
in coming to a decision in these matters.
As mentioned when writing of submissions by counsel, Mr. Migicovsky took issue with the
suggestion by one of the letter-writers that racism played a role in Constable Nesbeths
difficulties at the border. Since there was not the slightest indication that racism was involved
in any way, it was suggested that blaming racism was further evidence of a lack of remorse or
recognition of wrongdoing on Constable Nesbeths part.
I wish to state very clearly that I am not going to interpret the thoughts and words of one of
Constable Nesbeths supporters as an indication of Constable Nesbeths state of mind. In my
opinion, the thoughts and opinions that are voiced within the letter are those of the author of
the letter and will not have any impact whatsoever on my assessment of Constable Nesbeths
state of mind. She might agree with the author or she might disagree with the author. I have
no evidence to suggest how she might feel. I cannot and will not take this issue into account.
Notwithstanding the prosecutors suggestion that many of the letters were of little value and
few appeared to show any meaningful knowledge of the tribunals findings in relation to
Constable Nesbeths honesty and trustworthiness, I have spent considerable time going
through the letters and need to provide a brief overview of my opinions regarding the letters.
Recognizing the frequently subjective nature of letters such as these, the letters very strongly
suggest that Constable Nesbeth is a remarkable young woman who had contributed a great
deal to her family, her community and her police service. Notwithstanding the fact that I am
uncertain of how much factual information the authors of the letters of support had at the time
they wrote their letters, they describe with some consistency an individual who has left a very
positive impression on a lot of people. I have no reason whatsoever to doubt the letter-writers
sincerity or honesty.
It is my strong belief that within those relationships between Constable Nesbeth and the
individuals who wrote the letters of support, Dorothy Nesbeth was all that the letter-writers
said that she was. What I am required to do in these matters, however, is to assess whether or
not Dorothy Nesbeth, in her relationship with her employer, possesses the attributes and
qualities that are required to rebuild and then maintain the trusting employment relationship
that is so vital to her continued employment with the Windsor Police Service.
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This Decision has been released electronically to the Parties and is to form part of the Record.
It is to be treated as though it had been read in an open Hearing Room with full public access. RJF

On July 28th, 2010 and frequently since that date, Constable Nesbeth has been tested. Her
courage, honesty, integrity and values have been tested and based on the evidence before this
tribunal, she has failed that test. While the individual that is described in the letters of support
would be expected to recognize the errors she has committed and immediately set about trying
to make the situation right, Dorothy Nesbeth seems to have made a conscious decision to stick
by her initial strategy and try to ride it out. To my mind, that decision and the resulting
conduct are indications that she is unwilling or unable to recognize her conduct for what it was.
Consequently, she cannot begin to repair the obvious damage to the relationship between
herself and her employer.
At the border on July 28th, 2010, and several times over the ensuing several years, Constable
Nesbeth was presented with various opportunities to redefine the situation in which she found
herself. When she was directed to secondary inspection, she could have been completely open
and honest with the CBSA Officers and explained that she felt that the alcohol was not hers and
therefore she had not declared it; or words to that effect. She could have altered or truthfully
explained the declaration she had made at primary, thereby beginning to correct her course.
She failed to do that.
Rather than becoming frustrated and angry at secondary, she could have maintained her
professionalism and composure, thereby maintaining or even improving the working
relationship between the Windsor Police Service and the Canada Border Services Agency. She
failed to do that.
Once she had departed secondary inspection, she could have used the entire experience as a
learning opportunity. She did not do that. Rather, she asked at least two of her co-workers to
keep their eyes open for infractions committed by CBSA officers because she had been
jammed at the border.
When she was being investigated by Professional Standards, she could have been open, honest
and forthright with the investigators and provided them with complete answers to their
questions, taking full and complete responsibility for her actions. She did not do that. Rather,
she engaged in semantic exercises in an effort to minimize or eradicate her personal
accountability for what had occurred.
When she was testifying before this tribunal, she could have answered all questions openly,
fully, honestly and forthrightly. She did not do that. Rather, she again engaged in semantic
exercises and provided vague replies in an effort, once again, to extricate herself from the
situation in which she found herself.
Prior to and throughout these proceedings, Constable Nesbeth has not denied much of what
occurred at the border. She has, however, attempted to characterize the events as anything
other than what they really were an attempt by her to avoid paying duty and/or taxes on
goods she was bringing back into Canada from the United States. She has attempted by various
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This Decision has been released electronically to the Parties and is to form part of the Record.
It is to be treated as though it had been read in an open Hearing Room with full public access. RJF

means to shift the blame for what occurred; even suggesting that the Border Services Officers
didnt do their jobs correctly.
In disciplinary cases such as these, it is incumbent on the tribunal to attempt to determine what
an appropriate disposition would be. In most cases, where dismissal is not being suggested,
that determination is a weighing of the facts and submissions to try to fashion a disposition that
will properly reflect various aspects of the misconduct, while the same time addressing issues
of the public interest and some measure of fairness and reasonableness to the employer; all the
while being attentive to the procedural fairness and natural justice entitlements to the officer.
In dismissal cases, the usual course is that the prosecution will attempt to prove that either the
conduct was so dreadful - as in Williams45, for example - that nothing can mitigate the penalty
to anything less than dismissal. On the other hand, where the misconduct is not at that level of
gravity, and dismissal is nonetheless being called for, because of the usefulness test for
dismissal, the prosecutor must show that the officer cannot be rehabilitated or cannot reform
to an acceptable degree.
When a prosecutor is required to show that an officer cannot or will not reform or rehabilitate,
the most common way to achieve this is to look at the details of the officers conduct and very
often the officers post-event conduct. That was the case in Williams. Not only was the
conduct itself completely at odds with the roles and responsibilities of a police officer, the
officers conduct after the events in the apartment and during the investigation created a
situation where his moral character was brought into question. Another case that raised the
issue of post-event conduct was Loranger46. In that case, the conduct itself was horrible
although to a degree accidental but the conduct that occurred after the fact was so troubling
that it raised the level of misconduct significantly and created great distrust between the police
service and the officer. (It would be improper not to also note the impact of the public interest
in both of these matters.)
So while the conduct in Williams and Loranger was markedly more serious that the misconduct
presently before this tribunal, the post-event conduct in the matters now before me bears
some similarity to the post-event conduct in both Williams and Loranger.
Constable Williams was attempting to avoid responsibility. Constable Loranger was attempt to
avoid responsibility. It is my view that Constable Nesbeth has also been attempting to avoid
responsibility.
As has been mentioned during these proceedings, McNeil has had an impact on the disclosure
of previously undisclosed information relating to an officers disciplinary history. Since McNeil
came into force, it has become necessary for Crown Attorneys to disclose such records to the
defense. As to whether or not a disciplinary record is subject to disclosure, the onus is on the
45
46

Williams and O.P.P., supra


Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.)

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This Decision has been released electronically to the Parties and is to form part of the Record.
It is to be treated as though it had been read in an open Hearing Room with full public access. RJF

Crown to justify non-disclosure. Consequently, Constable Nesbeths disciplinary file including


the tribunals findings would in all likelihood have to be disclosed. This can have a serious
impact upon her personal effectiveness as a police officer and tangentially to the overall
effectiveness of the police service in the prosecution of criminal offences.
In his submissions on progressive discipline, Mr. Ducharme guided me through the opening
sections of the Windsor Police Services policy in that regard. It is important to note that in
addition to the passages to which I was directed, the policy also states very clearly that,
Based on all of the circumstances the steps of progressive discipline may be
superseded.47
So while Progressive Discipline is the gold standard, it is clear according to the policy, that there
is no issue with passing over the steps of progressive discipline in certain circumstances. The
prosecutors submissions before me clearly show that the Windsor Police Service believes this
to be one such case.
When examining Kelly and Toronto Police, it is important to note that in addition to the
employment history, the Commission went on to note;
he appears to have done everything in his power to make things right. He pled
guilty to both his criminal and disciplinary charges. He has accepted responsibility
for his actions and taken meaningful steps to address his problems. There is
undisputed medical evidence that here is a low risk of relapse. His potential
rehabilitation has been recognized by his employer. Accommodation without
undue hardship is possible.48
This observation by the Commission seems to set Kelly apart from the matters before me, in
that Constable Nesbeth has not conducted herself in a fashion akin to that in Kelly; particularly
regarding doing everything possible to make things right and accepting responsibility for her
actions. There are no medical issues before me that suggest accommodation is necessary and
the employer has not recognized any rehabilitative potential.
When assessing White and Reid, the Commission recognized that they had both pled guilty,
they had apologized and they had shown remorse and regret. These aspects created serious
mediation. Regrettably, I have nothing before save and except for Constable Nesbeths
statement to the tribunal to suggest remorse or regret.
Mitigation of matters such as these can often be considered if the officer has made an honest
mistake, or the conduct is completely out of character or the officer clearly recognizes the
seriousness of the mistake and takes full responsibility for his or her actions. I have great
47
48

Directive Discipline Sworn Members (Exhibit 37, Tab 1) Para II, point D, p.1 of 8
Kelly and Toronto, supra, p. 33

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This Decision has been released electronically to the Parties and is to form part of the Record.
It is to be treated as though it had been read in an open Hearing Room with full public access. RJF

difficulty in accepting that an honest mistake can can coexist with conduct that spans a very
long period of time, however. It seems to me that if some particular misconduct is as a result of
an honest mistake and is completely out of character, the individual would surely reconsider
what he or she had done and immediately start to make amends or otherwise begin to correct
the error. In the matters before me, I have seen no actions and have heard no words that
would lead me to conclude that the misconduct has been recognized for what it was or that
Constable Nesbeth has had a change of heart and wants to correct the record and set things
right.
As I have observed previously, Constable Nesbeth has had numerous opportunities to hit the
reset button on these allegations. Several times beginning on the date of the border crossing,
up to and including her testimony before me, she could have reconsidered her strategy. She
did not do so. Her decision to maintain her initial trajectory raises very real concerns about her
ability and/or willingness to reform or rehabilitate herself.
Constable Nesbeth offered a statement before this tribunal on the second day of the
disposition hearing. I have no doubt that her words and thoughts were heart-felt and sincere.
The problem is that an apology at that juncture carries such little weight as to be of little avail. I
remain unconvinced as to her recognition of the seriousness of her behaviour over many, many
months and there are no indications that I can point to that suggest that reform or
rehabilitation is likely or even possible.
When dealing with all of the disposition considerations that normally apply to matters such as
these, my views are as follows:
1. There has been intense public interest in these matters. I acknowledge that a good
portion of that interest has been related to the issue of the officer having been
suspended with pay (over which she has no control). Nonetheless, the public interest in
this matter is significant, ongoing and needs to be recognized and addressed.
2. These matters involve serious misconduct and there has been substantial damage
caused to the reputation of the Windsor Police Service. If Constable Nesbeth were to
remain a member of the police service, that discredit would continue or perhaps
increase; at least into the foreseeable future.
3. It does not appear that Constable Nesbeth recognizes the seriousness of her
misconduct. Throughout the time since the events at the Canada-U.S. Border, her
words and actions have not indicated in any way that she acknowledges the seriousness
of her actions. Her apparent desire to exact some sort of revenge upon the Border
Services Officers would seem to suggest otherwise.
4. There are no indications of handicap or other relevant circumstances. Similarly there
are no indications of provocation. The employers approach to this misconduct is
obvious.
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This Decision has been released electronically to the Parties and is to form part of the Record.
It is to be treated as though it had been read in an open Hearing Room with full public access. RJF

5. The effects of publicity on Constable Nesbeth and her family have no doubt been
profound. Her remaining a member of the Windsor Police Service is not likely to
alleviate this situation one iota. Although the negative impacts of publicity can
sometimes mitigate a disposition, in these matters, that is not possible.
6. It is obvious that losing her job as a member of the Windsor Police Service will have a
serious financial impact upon Constable Nesbeth, her children and her mother. While I
am saddened by this situation, because of the nature of my findings and my strong
belief, based on the evidence, that the trust relationship between the officer and the
police service has been irreparably harmed, this cannot mitigate the disposition.
7. Constable Nesbeths employment history is a mitigating factor. Unfortunately, the
tribunals determination that her usefulness has been spent does not permit the
disposition to be anything other than dismissal. The only potential reduction of this
disposition would have been from dismissal to ordered resignation. For reasons of
suitability, I have rejected ordered resignation as a suitable alternative.
8. Constable Nesbeth has suffered financial loss as a result of her suspension. Be that as it
may, because of the nature of the disposition, I am unable to take this loss into
consideration.
9. When weighing the disposition of these matters against other cases of a similar nature,
one undeniable factor is that when it has been determined that an officers usefulness
has been spent, dismissal is the only possible disposition. As has been observed many
times before, dismissal is not a punitive function. It is a function that permits the
employer to free itself of an employee in whom the employer has lost faith. It is very
clear that that is precisely the case before me.
10. Constable Nesbeths conduct beginning at the border and continuing through her
hearing provides me with no indications that Constable Nesbeth is willing and/or able to
rehabilitate or reform. Although her statement to the tribunal at the conclusion of the
disposition phase of these proceedings appeared to be sincere, given the timing of the
statement, I remain unconvinced that reformation or rehabilitation is likely.

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This Decision has been released electronically to the Parties and is to form part of the Record.
It is to be treated as though it had been read in an open Hearing Room with full public access. RJF

Conclusions
The constellation of facts surrounding the seriousness of the misconduct, the officers inability
or failure to recognize the seriousness of the misconduct, the damage to the reputation of the
police service, the public interest and the destruction of the relationship of trust between
Constable Nesbeth and the Windsor Police Service are such that her good work history and
other positive attributes as described in the letters of support, her evaluations and her conduct
sheets do no provide sufficient mitigation to erase or alter the fact that her usefulness to the
Windsor Police Service has been annulled.

Disposition

Constable Dorothy Nesbeth is hereby


Dismissed
from the Windsor Police Service.

[Original Signed]
________ _______________
Robert J. Fitches
Supt. (retd.)
Hearing Officer

December 19, 2014


Date

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