Toronto sending tougher message to cops caught drunk behind wheel
In the early hours of Feb. 27, 2016, acting Sgt. Deborah Smith of the South Simcoe Police was investigating a possible impaired driver north of Toronto.
Smith, who was following up on a complaint from a civilian, asked the driver to provide a breath sample. It’s alleged he refused, and as Smith attempted to arrest him, the driver pulled away from the officer. It was not until Smith unholstered her Taser and warned the driver that he complied with her demands and was arrested.
The alleged confrontation took place in Innisfil, but required the attention of the Toronto Police Service because the driver arrested was one of their own: Toronto police Const. Daniel VanWart.
VanWart pleaded guilty to driving with over 80 milligrams of alcohol in 100 millilitres of blood, according to the Ministry of the Attorney General. The ministry said via email that a different charge related to the same events, for impaired driving, was withdrawn April 28; charges of assault resist arrest and obstructing a peace officer were withdrawn Nov. 3.
VanWart declined to comment at his home in Innisfil last month.
“I’ve asked you to get off my property. No further comment, OK?” said VanWart.
He is on “administrative duties at14 Division,” a spokesperson said in an email.
VanWart’s alleged actions, while he was off-duty, also prompted two charges of discreditable conduct at the TPS internal disciplinary tribunal. A description of the alleged confrontation with the South Simcoe Police is contained in a Notice of Hearing for the TPS tribunal.
The Star submitted a freedom of information request to the South Simcoe Police, seeking records related to VanWart’s arrest. The service refused the request, writing in a Nov. 10 letter that “the case is currently before the courts.” Records would also be withheld after the matter was resolved “because the records requested are law enforcement records used for training purposes,” the service claimed.
VanWart’s arrest comes at a crucial time for the TPS, as it cautiously ramps up penalties for officers who drive drunk, in an attempt to curb bad behaviour and maintain — or restore — public trust in the force.
As the Star reported last year, dozens of officers from the Greater Toronto Area, and Ontario Provincial Police members, have been disciplined for drinking and driving since 2010. The Star found that the TPS had “doled out the most lenient penalties … an average of about 20 days docked pay.” Meanwhile, the OPP, as well as services in Durham, Peel, Halton and York, tended to demote officers.
Now, close observation of the Toronto tribunal suggests that the TPS is catching up with its counterparts.
“We started quite some time ago, asking for higher penalties,” said Insp. Peter Callaghan, who prosecutes disciplinary cases for the Toronto police. “The current penalty range wasn’t getting the message across.” Callaghan is the service prosecutor on the VanWart matter.
Warnings about strong penalties for impaired driving are not new, but Acting Deputy Chief Richard Stubbings said it may still take time for the message to “permeate” among TPS members.
“I would probably have liked to see stronger penalties earlier on, but . . . you have to look at what’s acceptable . . . at the time” Stubbings said, referring to case law and “community sentiment.” He believes dismissal could be an appropriate penalty if there is not a decrease in the rate of impaired driving.
Stubbings also emphasized that officers face professional discipline even when they avoid criminal conviction and said the baseline penalty for impaired driving is now a sixmonth rank reduction.
The discrepancy in penalties among police services was wellknown among some police officers, if not the general public. A 2006 OPP document stated that while the provincial police warned officers that drunk driving would result in demotion, Toronto handed out penalties “ranging from six days off to 12 days off.”
In the disciplinary hearing of Const. Enis Egeli, demoted earlier this year for impaired driving on the Gardiner in 2013, Callaghan submitted the Star’s reporting to underscore the need to ensure public confidence. (Negative media attention and harm to the reputation of a police force are common considerations when tribunals decide on penalties.)
“We’ve been trying to make the case for quite some time that this is damaging our reputation with the public,” said Callaghan, who is also the acting superintendent for Professional Standards Support. “The Star was a useful tool in that.” (Supt. Debra Preston, who decided on Egeli’s penalty, wrote: “Although these articles have not influenced my decision about penalty, they do highlight the concern and general intolerance of the community around impaired driving in general, and more so about this offence being committed by the officers who serve their community."
Whether harsher penalties are actually changing officer behaviour is unclear. In deciding on an appropri- ate penalty for Egeli, Preston wrote in an April decision that there had already been three arrests of Toronto officers in 2016 for impaired driving. By late September, there had been five arrests of Toronto officers for impaired driving.
According to numbers released to the Star in September, there were 71 impaired driving arrests of Toronto cops between 2004 and 2016. This included a high of 13 arrests in 2009 and lows of two arrests in 2005, 2010 and 2015.
A spokesperson said via email that one York Regional Police officer has been charged with impaired driving this year; no Durham officers have been arrested for impaired driving this year, according to the service. Sgt. Barry Malciw of the Halton Regional Police Service refused to provide figures, and said the Star could make a freedom of information request. Peel police say they’ve had “no incidents of impaired driving for 2016.”
One Toronto officer arrested this year is Const. Sebastian Szulc, who’s alleged to have failed a roadside breath test while off-duty in Burlington where his car was broken down on an exit ramp from the Queen Elizabeth Way, according to a TPS notice of hearing. A charge of “care and control of a motor vehicle” with over 80 milligrams of alcohol in 100 millilitres of blood remains before the courts.
Peter Thorning, a lawyer for Szulc, said the officer suffered a mechanical issue with his vehicle.
“There’s going to be a trial, you know. He’s going to plead not guilty,” Thorning said.
Thorning doesn’t believe harsher penalties curb bad behaviour. He also believes disciplinary tribunals, where cases are typically overseen and prosecuted by police, can crack down too hard on officers in an attempt to avoid perceptions of bias.
“In the history of the human race, it’s never worked . . . Harsher penalties never modify behaviour,” Thorning said.
Demotion packs a financial punch, and is considered a severe penalty, second only to dismissal. According to Durham Regional Police Association president Randy Henning, an officer demoted from first- to second-class constable for a year would lose approximately $9,000 to $10,000 in salary and could see their pension shrink.
Callaghan said tribunals must work within established precedent, handing out penalties to officers that align with past punishments for officers who’ve committed similar misconduct. A drastic deviation from precedent gives an officer a stronger case for appeal.
And because a hearing officer, who functions like a judge during disciplinary proceedings, must maintain their independence, a police service cannot standardize penalties for particular offences, Callaghan said.
Insp. Charles Young, who prosecutes OPP disciplinary cases, said tribunals can heighten penalties when warnings have been communicated to police officers.
Young cautioned that dismissal remains a possibility.
“I see it . . . heading in that direction,” said Young. “We haven’t gotten to where we need to be.”