Daniels v. Hamilton-Wentworth (Regional Municipality) Police Services Board (No. 2), 1996 CanLII 20060

Daniels v. Hamilton-Wentworth (Regional Municipality) Police Services Board (No. 2)

1996-11-13

Ontario Board of Inquiry

Mark Daniels

Complainant

and

Ontario Human Rights Commission

Commission

v.

Regional Municipality of Hamilton-Wentworth Police Services Board

Respondent

Date of Complaint:

April 26, 1991

Date of Decision:

November 13, 1996

Before:

Ontario Board of Inquiry, Paula Knopf

Decision No.:

96-039

Appearances by:

Peter Abrahams, Counsel for the Commission

Paul J. Osier, Counsel for the Complainant

Liam Rafferty and David Beck, Counsel for the Respondent

RACE, COLOUR AND PLACE OF ORIGIN — discrimination in employment — employment terminated — probationary employee — EMPLOYMENT — protection from discrimination for probationary employee — EMPLOYMENT EVALUATION AND TESTING — evaluation procedures free from racial bias — DISCRIMINATION — physical fitness, lifestyle and dishonesty as reasonable cause for discrimination

Summary: The board of inquiry decides that the Hamilton-Wentworth Police Services Board did not treat Mark Daniels unequally because of his race and colour when they terminated his employment shortly before the end of his probationary period.

Mark Daniels was a visible minority police constable in the last month of his eighteen-month probationary period when he faced a hearing with the Police Services Board to consider a recommendation that his services be terminated. His performance rating had been satisfactory even as late as fourteen months into the probationary period; however, it had been dropping and Mr. Daniels had been counselled on several occasions for lateness, not following instructions promptly, and generally showing a lack of effort and a casual attitude towards the rules of the Force.

More seriously, he had failed the required fitness test twice and had not made any attempt to schedule a retest to try to pass by the impending deadline. The culminating factor that rendered all of the above unacceptable to the respondent, however, was that Mr. Daniels, a married man with a young child, had allowed an intimate friendship to develop with a woman that he had met through his police duties. The woman, known throughout the case as Mrs. Jane Doe, left her abusive husband, which then precipitated his attempting suicide. Mr. Daniels had been the investigating constable with respect to the attempted suicide. The woman became infatuated with Mr. Daniels and pursued him. He allowed the relationship to develop but told her a complicated set of lies to keep her from knowing that he was married. The lies, some of which involved his work as a police constable, escalated when he became worried that she wanted too much from the relationship. Mr. Daniels also lied to one of his supervising officers in response to a direct question about whether he had met Mrs. Doe while on duty.

The complainant and the Commission argued that Mr. Daniels was subjected to more severe disciplinary action than white police constables for the same or similar offences. They contended that white probationary constables had equally problematic records but were not recommended for termination. They also strongly criticized the respondent's process in pursuing the termination hearing, alleging that the respondent made important mistakes and did not even follow its own practices. They noted that neither the Force nor the Police Services Act contains policies with respect to personal affairs, and argued that Mr. Daniels behaviour did not amount to discreditable conduct. They concluded that the respondent's haste in ousting the complainant while he was still on probation evidenced a racial motivation because the woman with whom Mr. Daniels had become involved is white. The complainant and the Commission argued in essence that the respondent had exaggerated the problems with Mr. Daniel's record because it was embarrassed by the interracial nature of his relationship with Mrs. Doe.

The respondent argued that race was not a factor in its decision. According to the respondent, the combination of all the problems with Mr. Daniel's record viewed together led to the conclusion that he would not make a desirable addition to the permanent force. The respondent argued that because of its public responsibilities, it has a different characteristic than that of a private employer and that its Code of Discipline and Offences, contained in the regulations under the Police Act, includes discreditable conduct and deceit. In the respondent's estimation, Mr. Daniels had not lived up to the appropriate expectation of ethical and proper conduct. The respondent noted that the probationary period is designed to assess a constable's suitability to become a permanent member of the police force and that it has the right to terminate during that time as long as its assessment and decision are subject to procedural fairness and non-discrimination. The respondent argued that indeed Mr. Daniels was afforded full procedural fairness; only relevant issues were raised in considering Mr. Daniels' termination; there was no evidence that the decision was tainted by any improper racial factor; and Mr. Daniels was treated consistently with other probationary constables.

The board of inquiry finds in favour of the respondent's position. Although the respondent's process included some mistakes and inconsistencies, a careful and thorough review of the evidence does not show any indication that an inference of racial bias can appropriately be drawn in this case. The respondent has the right to choose who shall be a member of its force and to apply a high standard for eligibility, including a legitimate expectation that its officers will be honest, trustworthy and capable of exercising good judgment. The flaws that had surfaced during Mr. Daniels' training and first fourteen months of on-the-job performance would not have led to his termination. However, those flaws combined with his failure to achieve the physical fitness standard and his relationship with Mrs. Doe — given the circumstances of their meeting and his conduct during their relationship — legitimately triggered questions as to his suitability to become a permanent member of the force.

The record regarding other probationary constables with performance problems or fitness concerns does not reveal differential treatment of Mr. Daniels. Further, the procedural fairness of Mr. Daniels' hearing before the Police Services Board and the decision made as a result of that hearing were subjected to judicial review and upheld. The complaint is dismissed. The board of inquiry retains jurisdiction to hear the respondent's request for costs against the Commission should it decide to pursue such a claim within thirty days.

CASES CITED

Ashby (Re) (1990), Ont. Police Reports 882 (Ont. Police Comm.): 95, 127

Blackburn and Niagara Regional Board of Commissioners of Police (December 16, 1992), (Ont. Ct. (Gen.Div.)) [unreported]: 91, 95, 121

Coccimiglio (Re) (1991), (Law Society of Upper Canada, Discipline Committee) [unreported]: 95

Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978): 80

Harrop v. Markham Stouffville Hospital (1995), 1995 CanLII 7295 (ON CTGD), 16 C.C.E.L. (2d) 214 (Ont Ct. (Gen.Div.)): 95, 127

Large v. Stratford (City), 1995 CanLII 73 (SCC), [1995] 3 S.C.R. 733, 128 D.L.R. (4th) 193, 24 C.H.R.R. D/1: 95

Mitchell v. Nobilium Products Ltd. (1981), 1981 CanLII 4319 (ON HRT), 3 C.H.R.R. D/641 (Ont. Bd.Inq.): 80

Nicholson v. Haldimand-Norfolk Regional Police Commissioners Board, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311, 88 D.L.R. (3d) 671: 69, 88, 92, 95, 121, 135

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 80

Randhawa v. Lido Industrial Products Ltd. (1985), 1985 CanLII 5243 (ON HRT), 6 C.H.R.R. D/3005 (Ont. Bd.Inq.): 80

Singh v. Domglas Ltd. (1980), 1980 CanLII 3929 (ON HRT), 2 C.H.R.R. D/285 (Ont. Bd.Inq.): 95

LEGISLATION CITED

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

Preamble: 80

s. 4(1): 1

s. 4(2): 1

s. 5(1): 99

s. 5(2): 99

Police Act, R.S.O. 1980, c. 381: 88

R.R.O. 1980, Reg. 791: 95

s. 4: 101

s. 27: 101

s. 27(b): 36

s. 27(e): 121

Police Services Act, R.S.O. 1990, P.15: 72, 84

s. 1: 100

s. 2(1): 100

s. 4(1): 100

s. 8(1): 100

s. 15: 100

s. 16: 100

s. 17: 100

s. 57: 100

s. 66(1): 100

s. 74(1): 100

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22: 84

AUTHORITIES CITED

Brown, Donald J.M. & David M. Beatty, Canadian Labour Arbitration, 3d ed. (Aurora, Ont.: Canada Law Book, 1991): 95, 125

Palmer, Earl Edward, Collective Agreement Arbitration in Canada, 3d ed. (Toronto: Butterworths, 1991): 95

1Mark Daniels is a man of talent and intelligence. He was recruited by the Hamilton-Wentworth Regional Police Force (the “Force”?) and hired as a probationary police constable. Just a few weeks before his eighteen-month probationary term would have ended, Mr. Daniels' employment was terminated by the Hamilton-Wentworth Regional Board of Commissioners of Police (“Police Services Board”?). Mr. Daniels alleges that his termination was due to the fact that he is a black man who was discovered by his superior officers to be associating with a white woman. He alleges that his right to equal treatment with respect to employment without discrimination has been infringed under ss. 4(1), (2) and (8) [sic] of the Human Rights Code [R.S.O. 1990, c. H.19]. The position of the respondent is that Mr. Daniels' employment was ended for a number of reasons, including unsatisfactory performance, misconduct and “abuse”? of his position as a police officer.

2The sequence of events giving rise to this matter culminated in May 1990. The complaint to the Human Rights Commission was filed in April 1991. The hearings of this Board of Inquiry commenced on January 6, 1995, and proceeded through eighteen days of hearings which concluded in June 1996. The parties presented their cases thoroughly and passionately. Clearly, there is a great deal at stake for all the parties concerned in this case. The evidence was extensive and cannot be recounted in its entirety. Instead, the relevant evidence will be summarized and analyzed below. Although many of the police personnel now hold different ranks than they held in 1990–91, they will be referred to by the ranks they held when these events occurred. Further, in order to protect the privacy of a woman and her family who were involved in these events, their real names are not being used in this decision. Instead, the pseudonym Jane Doe has been adopted.

3At the time these events began to unfold, Mr. Daniels was 29 years old. He was married and had one son, 3 years of age. He had been a member of the Canadian Armed Forces and was honourably discharged in 1980. He is the holder of a Certificate of Military Achievement. He then worked for the Canadian Pacific Railway Police for almost eight years. In 1988 he was hired by the Hamilton-Wentworth Police Force as a probationary constable. The recruiting staff recognized his maturity, his military record, his intelligence, his previous policing experience and his enthusiasm. In addition, he had the asset of being trilingual, fluent in English, French and Spanish. Finally, it cannot be ignored that his being a member of a visible minority made him a welcome recruit to those who were concerned about employment equity.

4At that time, there was an eighteen-month probationary period for police constables. This began with in-service training, followed by a period at the Ontario Police College, some specific training with equipment and then assignment to an individual training officer, P.C. Phil Cranmer. He was assigned to the Mountain Station.

5Until events began to unfold in April 1990, Mr. Daniels seemed to be progressing in a satisfactory manner through his probationary period. It is not asserted on his behalf that he was the best or the ideal probationary employee. There is documentation of some problems arising, even as early as at the Ontario Police College. Individually, none of them were serious enough to warrant discipline. Some of them resulted in written documentation noting the occurrences. In some cases counselling was offered. As counsel for the Commission quite properly described the situation, “His work performance, while not perfect, could surely be described as satisfactory”?. Indeed, after three months, Mr. Daniels was approved to patrol on his own. He and his training officer enjoyed a good working relationship. A probationary performance review completed after five months notes his “work performance coming along well”?. Further positive indications are “developing at a good rate ... works competently under stress ... thorough in completion of assignments ... works well with his training officer ... likeable, relates well with fellow officer ... no problems anticipated ... transition from civilian to police officer a smooth one ... takes pride in his profession”?. The only negative comment is that he was late for duty on two occasions, but this was noted to be “an exception to the norm”?. He was recommended for continued service.

6His fourteen-month probationary performance review contains lower scores on some of the evaluation criteria. The written comments reflect deterioration in performance. In areas of work performance, there are concerns noted relating to accuracy because of problems which arose when he tried to do too much at one time. His development was described as “slower than anticipated”?. In terms of “dependability”?, it was noted that he was late for work on two occasions, but was counselled. There was also comment about initial problems with listening to instructions. However, his adjustment to police work was described as “very good”?. His highest rating and the most positive evaluation came in the area of “relationships”?. This was described as:

A very strong plus for Mark. He receives nothing but favourable comments from both the public and his fellow shift members. His calm attitude in confrontational situations is evident at all times. His common sense in handling and understanding of difficult people is excellent. On 06 Jan. 90 Mark was commended for his attitude and tact by a letter sent from a private citizen to Supt. Robertson.

There is also another commendation for his work on his file. He was also valued as a translator at a conference for Canadian Chiefs of Police, held in Hamilton. The result of this fourteen-month appraisal was that he was recommended for continued service by his training officer. This was approved by the Mountain Station's supervisory personnel, Inspector Hanmer and Superintendent Robertson.

7In the normal course of a police career, after a probationary constable is recommended for continued service at the fourteen-month point, if no problems surface and that probationary constable is able to satisfy the fitness requirements of the Force, the eighteen-month anniversary of his/her hire becomes the end of the probationary period. The recruit then becomes a member of the permanent Force. This did not happen for Mark Daniels. Two problems surfaced. One concerned the fitness requirements. The other concerned the relationship he developed with a woman whom he met while on duty.

8In order to understand why Mr. Daniels was terminated before his probationary period was completed, we have to go back to December 1989. At this point, he had been on the Force for twelve months. While patrolling on his own, he responded to a call for assistance at a local hospital to deal with a situation of an attempted suicide. He then met a woman who will be described in these proceedings as Jane Doe. She advised him that her husband had attempted suicide with an overdose of drugs. She confided to Constable Daniels that her husband had been suffering from depression because of their marital problems and that he was presently undergoing counselling for wife battering. It is clear that she felt Constable Daniels handled the situation with compassion and sensitivity. As a result, Jane Doe developed an attraction towards Constable Daniels. She soon initiated contact with him on several occasions. He told her that he was unmarried. Some of these involved arranging to retrieve property such as the suicide note and a note book from Mr. Daniels personally. But on other occasions, she attended at his Mountain Station with gifts, flowers and other attentions for him. She called him often and waited for his return from patrol. Eventually, the two began to have coffee before and after his shift. They also met for lunch and dinners on a number of occasions. Only two of these occasions were official case follow-ups.

9While the evidence establishes that officers at Constable Daniels' detachment were aware of Mrs. Doe's attentions towards Mr. Daniels and her attraction to him there was no official concern expressed about the relationship at the time. Nor is there any evidence that there was any official understanding of the development of the relationship.

10The relationship officially came to the attention of supervisory officers of the Force in two ways at approximately the same time. The first time it was raised indirectly by Constable Daniels himself. In March 1990, Constable Daniels and Jane Doe decided to go out for dinner across the border at nearby Buffalo. Upon their return, they encountered problems with Canada Customs. They were vigorously questioned, their car was searched. Then Customs officials indicated that they wanted to perform a “strip search”? on Mrs. Doe. Both Constable Daniels and Mrs. Doe believed that the treatment that they were being given by the Customs officials was directly related to the fact that they were an interracial couple. Mrs. Doe is white. They felt that they were being harassed and discriminated against. Rather than allow Mrs. Doe to be subjected to the “strip search”?, Constable Daniels produced his Hamilton-Wentworth Police Force identification to the Customs officials. Upon seeing that, they did not persist with their insistence upon the strip search and the couple was allowed to leave.

11Understandably, Constable Daniels was incensed by the treatment. He was seriously considering initiating a complaint against the Customs officials and sought out the advice of a superior officer regarding the incident. He chose to approach Superintendent Robertson who was the Command Officer for the Mountain Station. Up to that point, the two had had very little interaction. But Superintendent Robertson had “an open door policy”?. Constable Daniels had the belief that the Superintendent could be approached for guidance “in the strictest confidence”?. Constable Daniels described the border incident to Superintendent Robertson and asked for advice. As Constable Daniels testified, “I explained to him that I was planning on making a complaint. But I didn't want to get tied up with the red tape and create bad vibes with Canada Customs and the Hamilton department”?.

12It is at this point that fundamental conflicts in the evidence emerge. According to Constable Daniels, as soon as he had asked for advice, he began to be “cross-examined”? by Superintendent Robertson who it [sic] is alleged to have asked pointed and intimate questions about who the woman was and whether or not she was his wife. Constable Daniels testified that Superintendent Robertson demanded to know how he had met the woman, whether his wife knew about the woman, and whether or not they were having sex. In addition, Constable Daniels was warned that he could run the risk of having his wife finding out about the relationship if he filed a complaint. Further, it is alleged that Superintendent Robertson demanded to know whether Constable Daniels had met the woman in the course of his duties. Mr. Daniels described this exchange, accusing Superintendent Robertson of “yelling”? as follows:

“Don't shit where you eat”?. Then he asked me how long I had left on my probation ... “Did you meet her on the job”? and I said no. I hesitated, then I said “no”?. Then he came back and stated that if he found out that I met her on the job, he would charge me under the Police Act ... I had no idea what he meant by that. Then he said “You better watch your P's and Q's”?.

13Superintendent Robertson described the meeting quite differently. He recalled being approached by Constable Daniels and being told he was considering filing a complaint because he and a “friend”? had been subjected to racial harassment by border officials. Superintendent Robertson's reaction to the story was immediate suspicion. He formed the impression that Constable Daniels was really there to find out whether Superintendent Robertson had already heard about the incident. Superintendent Robertson testified:

The details did not add up to the concern he was expressing ... Something about the conversation left me uneasy. I wasn't certain that I accepted it at all at face value, but I was prepared to give Mark the benefit of the doubt.

In essence, Superintendent Robertson developed the suspicion at the time that Mr. Daniels was concerned that a complaint had or would be made to the Hamilton-Wentworth Police Force from Canada Customs about Constable Daniels inappropriately producing his police badge at the border.

14Superintendent Robertson testified that he advised Constable Daniels that he could take action and file a complaint if he chose to do so. However, Superintendent Robertson testified that he then proceeded to give what he described as “fatherly advice”? to Constable Daniels to be careful about relationships with women other than his wife, particularly those whom he met in the course of his duties. He warned this could open a probationary constable to criticism. Superintendent Robertson denies that he was aggressive or interrogated Constable Daniels at any point in this conversation. Superintendent Robertson recalls the conversation as being informal and he was willing to leave things as they were at that point. On the other hand, Constable Daniels perceived the conversation and the questions as very upsetting and “threatening”?.

15Superintendent Robertson intended to take no action and planned no follow-up as a result of this conversation. There is no evidence that Constable Daniels or Mrs. Doe ever pursued their complaint against the Customs officials. It is conceivable that the matter may have faded away had nothing further occurred. However, two issues arose. First, on March 20, Constable Daniels failed his physical fitness test for the second time. Passing the test is a precondition to completing probation. Second, in early April 1990, Mrs. Doe's father informally approached a friend of his who was a member of the Hamilton-Wentworth Police Force, P.C. Brenda Slatterly. He expressed concerns about his daughter to Officer Slatterly. He explained that his daughter had recently separated from her husband who had been physically abusive to her and had attempted suicide when she tried to leave him. They had an infant son. The father's current concern was that his daughter was getting involved in a relationship with a member of the Force whom she had met when he came to deal with the estranged husband's attempted suicide. The reason the father expressed as to why he was upset about the relationship was that his daughter was being told stories by the police officer that were suspicious and that gave rise to concerns about her safety. Further, the father told P.C. Slatterly that he was concerned about the mental state of the husband who was liable to “do something drastic”? to his estranged wife and child if he found out about the new relationship. The father never filed an official or formal complaint. Instead, he asked Officer Slatterly to investigate the matter and determine the veracity of the stories being told to his daughter. He identified the member of the Force as Mark Daniels.

16On April 2, 1990, Office Slatterly approached Sergeant William Watts, the Staff Placement Officer, whose duties included human resources and recruits. P.C. Slatterly related to Sergeant Watts the concerns of her friend, the father of Jane Doe. Sergeant Watts referred the matter to the Professional Standards Branch of the Hamilton-Wentworth Regional Police, by memo dated April 2, 1990:

He [Mrs. Doe's father] felt that the present condition of his daughter makes her vulnerable to pressure from others. He has not met the Officer but from what he has learned from the daughter makes him feel that the Officer has lied or mislead [sic] the daughter concerning HIS personal life and even though he has not learned everything from his daughter he feels that the daughter won't open up because she may have been caught up in any misinformation given to her. I would request that you contact P.C. Slatterly and I am sure that the father would talk to you about his feelings on the matter. P.C. Slatterly may be able to talk to the daughter if you need a go-between and feels that there may be a clarification required before the Officer can be approached.

17The “misinformation”? that required “clarification”? was with regard to the stories that Constable Daniels had been telling Mrs. Doe that were causing concern to her father. They can be summarized as follows:

”¢ He told her that she could not be invited to his place of residence because it was “sometimes used as a drug drop off point”? and “sometimes frequented by criminals who were unaware that he was an officer”?.

”¢ He told her that he had been an RCMP Officer. He had been married to a fellow RCMP Officer and had been involved in an investigation of prominent Mafia families. They had had a baby. However, his sister-in-law had been killed by a car bomb set in his wife's car. He claimed that the wife had left with their son “due to distrust of the situation, never to be seen again”? by Constable Daniels. He claimed that he had no idea where they lived or whether they were even alive.

None of these stor[i]es was true. Sergeant Watts felt that the nature of the stories and the circumstances of the relationship with Jane Doe were such that the matter should be brought to the attention of the Professional Standards Branch.

18The mandate of the Professional Standards Branch is to investigate any and all complaints against a police officer which have been lodged by a citizen or a police officer. Upon receiving the referral from Sergeant Watts, the Professional Standards Branch decided to investigate the matter further. Staff Sergeants Williams and Matteson conducted the investigation. Staff Sergeant Eugene Williams explained,

Our major concern was that the allegations were such that it was believed that there could have been misconduct ... in that he took advantage of a person in a very vulnerable situation, using his office as a police officer to gain advantage, when this lady was at a very vulnerable time in her life.

19Two officers from Professional Standards contacted and interviewed Mrs. Doe's father. They then asked him to have Jane Doe contact them. Within an hour, she did call the officers and attended at the police station to be interviewed by them later that same afternoon. The two officers from the Professional Standards Branch who conducted the interview of Mrs. Doe testified that she was co-operative with them and came voluntarily. Mrs. Doe never testified in these proceedings. However, an affidavit filed by her in support of Mr. Daniels' application for Judicial Review of the Police Services Board's decision dated December 20, 1990, contains the statement:

On April 3, 1990 I received a telephone call from the Professional Standards Branch of the Hamilton-Wentworth Regional Police Force advising me that the Branch wished to speak to me concerning Officer Daniels. My immediate response was that I was not interested in such a discussion.

I reluctantly attended at Police Headquarters and I was asked a few questions ...

20Whether she came willingly or out of a sense of obligation is immaterial to these proceedings. The fact is that she did attend and was interviewed by the two officers from Professional Standards Branch. They gave her a partially completed official complaint form and asked her to prepare a written statement regarding her dealings with Constable Daniels. The following morning, at 8:30 a.m., she phoned and made an appointment for 11:00 a.m the same day. She attended at the Station and met the two Professional Standards Branch officers. She gave them a three-page, single-spaced, typed document outlining her relationship with Constable Daniels. It described how they met, her understanding of his personal history, and that they met on several occasions together when he was off duty. The letter concludes with a description of the border incident with Canada Customs and Mrs. Doe's understanding of the encounter Constable Daniels had with Superintendent Robertson when he was solicited for advice as to whether a complaint should be lodged. Her letter concludes:

The supervisor stated that the investigators of this complaint could come to my home at any time and possibly the “female companion”? listed in the complaint would not wish her husband to discover that she was with you. Mark also said his supervisor made reference to a “misconduct code”? in which he may be confronted with if it was found out that we had met “on the job”?. He [Officer Daniels] decided that to save us both embarrassment, we would have to swallow our pride and scrap the complaint. He kept the letter at all times.

I do not wish to take any disciplinary action towards Officer Daniels and hope that his wife and child do not suffer due to my or any other woman's naivety towards this officer. He has disgraced his badge and himself. I feel that is enough.

21Mrs. Doe made it clear to two officers at the Professional Standards Branch that she was attracted to Constable Daniels. She did not wish that any disciplinary action be taken against him. She was advised to refrain from any contact with him in the future. She never signed the official complaint form. Despite this, it was decided to proceed with an investigation. Staff Sergeant Williams explained: “The disciplinary action against this police officer is not for Mrs. Doe to conclude, it's up to the Police Service that he is employed by”?. Staff Sergeant Williams listed the several ways in which he felt that Mrs. Doe's letter indicated inappropriate conduct by Constable Daniels. They can be summarized as follows:

Ӣ Carrying on business with Mrs. Doe while Constable Daniels was not on duty.

Ӣ Meeting with her and having coffee with her in a private setting, in the situation of a marriage break up and an attempted suicide.

Ӣ It was not ethical to say to her that he did not have a wife.

Ӣ He had apparently led her to feel grateful that no charges were laid in connection with the attempted suicide. However, charges would not be laid in these circumstances in any event.

Ӣ Officers should not accept gifts or gratuities as a result of carrying out of their duties.

”¢ Inviting her for coffee was seen to be “trying to get closer to her for his own personal agenda”?.

Ӣ It was improper to meet with her on several occasions because it seemed like he was trying to keep the relationship going even though he knew of the unstable situation with the abusive husband.

”¢ The lies about his residence as a “drug cover”? indicated “he was willing to go any extent and any story to get this woman to accept him or get closer to him”? and gain his trust.

22Asked in cross-examination how Constable Daniels should have handled the situation, Staff Sergeant Williams answered:

As an officer and a person in authority, office of trust, he has to step back from the situation and just let things take its course. If a year down the road or something, somebody came along that may very well be, but not right at that particular time when all this was all fresh ...

Staff Sergeant Williams viewed Constable Daniels' relationship as “driving a wedge between the woman and her family”?. The other investigating officer, Staff Sergeant Matteson, expressed concern that Constable Daniels had entered the relationship, “based on deceit in a number of areas”?.

23After receiving Mrs. Doe's written statement, Staff Sergeants Matteson and Williams interviewed Constable Daniels. His immediate supervisory officer, Inspector Hanmer, was also in attendance. They gave Constable Daniels a copy of Mrs. Doe's letter. They gave him the impression that Mrs. Doe had filed a formal complaint against him. He was very upset. He was asked to file a reply as soon as possible. He was advised of his right to seek assistance through the Police Association. He was also offered the assistance of the Employee Assistance Plan and offered help from the Professional Standards Branch or Inspector Hanmer. Constable Daniels promised to give a response by Friday of that week. He did not deny having made mistakes. But he indicated that confidentiality was paramount for him at that stage.

24Constable Daniels did prepare a written response to Jane Doe's letter. Some portions of it need to be quoted in full:

I have read the formal complaint filed against me by [Jane Doe] in her letter 90/04/04 and for the most part have no disputes [sic] with its contents. This friendship evolved during numerous attempts by [Jane] to contact me ... I admit I did not accurately disclose any marital status to her and her actions to some degree influenced me and I did become attracted to her. This friendship continued for the most part at her prompting and we did become very good friends ...

About the first week in January I met with [Jane]. She told me she was pregnant (by her husband). Contemplating an abortion, she sought my advice ...

I now realize [Jane] was fond of me and wanted more than a friendship, perhaps more than I could be. I also realized that I would be putting myself and marriage in jeopardy should this friendship continue. I sympathized with [Jane] and had the utmost respect for her as a lady, person and friend. The last thing I wanted to do was hurt her in the situation she was in. It was then I began fabricating numerous stories, the last being March 26. I did this to limit seeing her and to end all contacts with her, hopefully, without hurting her.

At no time was I the aggressor or did I ever use my office or position to initiate or influence a relationship of any kind with [Jane]. My job as a police officer is the most important thing to me next to my family. Each and every time I saw her I reiterated her marital status to her. Her obligations to herself, child, husband and home. I told [Jane], using words to the effect, we shouldn't see each other; this isn't right, don't you ever feel guilty. She accused me of getting cold feet; not being sensitive to her feelings; worrying too much; and being paranoid ...

I now realize I was foolish and have learned a valuable lesson early in my career. In the future I will be more conscious of this type of incident or friendship ever developing as a result of any contacts I may have as a Police officer.

25Staff Sergeants Matteson and Williams were also in contact with Superintendent Robertson about Constable Daniels. When they told him about the investigation into the circumstances of the relationship with Mrs. Doe, Superintendent Robertson realized that it was the same “female”? companion who was involved in the border incident that Constable Daniels had raised with him earlier. This was when Constable Daniels had denied meeting her in the course of duty. This led Superintendent Robertson to conclude: “He obviously had misled me. And based on the information that I had, he had also brought considerable discredit to our Service”?.

26Mr. Daniels went back to Superintendent Robertson to show him a draft of the response he had prepared to the Professional Standards Branch regarding Jane Doe's letter. Mr. Daniels testified that Superintendent Robertson said:

Well ... you lied to me too ... I asked you if you had met her on the job and you said no ... I can easily see a Police Act charge over this matter ... Well, maybe you should call the Police Services Board and tell them if she withdraws her complaint you will resign ... You're a visible minority. All police forces out there are on a hiring blitz for a visible minority. You should have no problem getting on another police force ... If you don't resign, you'll be charged under the Police Act.

Mr. Daniels claims that Superintendent Robertson advised, “You should save face and resign”?, because a charge would result in publicity and his wife and children would find out about the incidents.

27Superintendent Robertson recalls the details of this encounter somewhat differently. He recalled a visibly upset Constable Daniels coming in to show his draft of his response to the Professional Standards Branch, and seeking advice as to what he should do, whether he should resign, whether he should “fight it”? or whether he should start fresh somewhere else. Superintendent Robertson also recalls Mr. Daniels being concerned that his wife and family were going to find out about what had occurred. Superintendent Robertson claims that he kept telling Constable Daniels that he was asking the wrong person for advice because the Superintendent would have to testify against Constable Daniels in any proceedings. But Superintendent Robertson admits:

I did indicate to him if he did resign, and wanted to start fresh somewhere else, that there was recruitment going on across the province for minority officers. I tried to reassure him that perhaps he would have a better opportunity if he chose that ... route of resignation.

When asked in cross-examination whether Superintendent Robertson said to Constable Daniels “If you don't resign, you'll be charged under the Police Act”?, Superintendent Robertson replied:

I didn't use those words, but during the discussion, the question of whether he could be charged was certainly a part of the conversation ... The discussion would be that if he resigned he couldn't be charged [under the Police Act] but it wasn't in the context of either–either.

28Constable Daniels then sought out the advice of his Police Association. He spoke to James Garchinsiki, the Administrator of the Hamilton-Wentworth Police Association. He is a police officer with decades of experience and currently holds the rank of President of the Police Association of Ontario. Sergeant Garchinsiki considered Mr. Daniels' position. It was Sergeant Garchinsiki's professional opinion that while there may have been some areas of concern, the circumstances were not the type that would justify or lead to Constable Daniels' dismissal. Sergeant Garchinsiki advised Mr. Daniels not to resign. Mr. Daniels considered the option of resignation. However, he did not believe that his actions had actually put his job in jeopardy. He also considered the fact that he just recently moved his wife and child from Montreal to the Hamilton area and bought a house. Therefore, he decided not to resign. On April 30 he delivered a memo to Staff Sergeant Matteson saying:

Sir:

Further to our last conversation and after discussing the matter with Jim Garchinsiki I have decided not to resign.

The next day, May 1, he was summoned to attend at Deputy Chief Frid's office, accompanied by James Garchinsiki as his representative. They were given a four-page letter suspending Constable Daniels with pay “until a decision has been made at the next Board of Commissioners of Police meeting”?. That letter commenced:

This is to notify you that a letter recommending your dismissal will be presented to the Hamilton-Wentworth Regional Board of Commissioners of Police on Wednesday May 16,1990 ...

29The reasons for the recommendation were set forth. They need to be quoted in full.

1. Your performance on the Constable Training Program Level II at the Ontario Police College was below standard and it was noted on your final assessment that there were four (4) incidents during the course which indicated that you may view some rules and expectations lightly.

i) a tardy compliance with a request by an O.P.C. instructor concerning your room condition.

ii) a tardy reporting of the temporary loss of police equipment to Sergeant Steve Gibbons.

iii) being absent without permission from the Ontario Police College by one (1) hour to handle personal matters.

iv) you appeared to apply yourself only when it was actually required, and it was noted on your assessment that you seemed to accept advice and instruction only when faced with the possibility of failure.

On April 25th, 1989 you were counselled by Sergeant Watts about the incidents and also counselled about a fifth incident involving a late Worker's Compensation Claim that required the O.P.C. Nurse to continually request that you fill in the required forms and send them in.

You were warned that further failures to follow the rules and regulations could result in either disciplinary action or termination of services.

2. i) On May 5, 1989, your training officer P.C. Phil Cranmer notated that you were late for duty and counselled [sic].

ii) On August 23, 1989, an overall progress report was submitted to Inspector Hanmer by P.C. Phil Cranmer where it was again noted that you were late for duty on August 9th, 1989.

3. It was noted that in your Developmental Assessment that your organization skills were lacking (23rd August, 1989) and on your February 14th, 1990 assessment your Work Performance had dropped from satisfactory 2 to satisfactory 3.

4. Your February 14th, 1990 assessment noted your two (2) occasions of being late and your assessment level fell in Dependability from satisfactory 2 to satisfactory 3.

Under reason 2, 3, and 4 you were counselled to improve but from your 5 and 14 month assessments your ratings in work performance and dependability have dropped rather than developing as should be expected of an officer.

5. i) On October 13, 1989, as part of your probationary period you were given the Recruit fitness test at which time you failed to meet the minimum standard of 75% (score 70%). This test was discussed with you, and counselled by Sergeant Watts to improve the score upon retesting. You assured Sergeant Watts that you would make a concerted effort to pass the next test. (You did poorly in the 1.5 mile run and Agility Run).

ii) On March 20th, 1990, you were given the 14 month Recruit fitness test as part of your probationary period and again failed to meet the minimum standard of 75%. In fact after counselling for the first test you did worse on the second scoring only 66.3%. (Your score indicates that you rated even worse on the 1.5 mile run from poor to very poor). You were also counselled by the Force Fitness Co-ordinator Gary Goguen as to how you could improve. You have failed to achieve the minimum required score of 75% and have made no attempt to schedule a retest to try and improve your score.

6. On November 7th, 1989, you had to be counselled by Inspector Hanmer concerning your inability to conform with Dispatch instructions and therefore increasing the workload for fellow officers. This was the second offence and you were previously counselled by Sergeant Tonello. This problem had been going on for a number of months, and though you had been spoken to by at least three (3) dispatchers regarding your conduct you chose to ignore them forcing intervention at higher levels. This showed a lack of maturity on both work development and relationships with fellow workers.

7. On March 26th, 1990 you spoke with Superintendent Robertson who is your command officer for Area #3. You asked his advice concerning a confrontation at the Canada/U.S. border which involved a woman who was not your wife, and was described as a female friend. You wished to lodge an official complaint and lied to Superintendent Robertson as to how this relationship came about. In fact you met this woman as a result of an investigation while on duty as a police officer. You showed a lack of maturity and honesty in your dealing with Supt. Robertson by possibly putting him into a situation, that by intervening on your behalf and having been lied to could have resulted in an embarrassing situation between this Force and the Customs agency involved.

8. On April 3rd, 1990, a complaint concerning your behaviour was received by the Professional Standards Branch. It was alleged that during the course of an investigation which involved the complainant, that due to her vulnerable emotional state you used your position to gain affection and sympathy from her. It involved an ongoing relationship in which you misled the complainant pertaining to matters of your personal life, and manipulated the situation to your benefit. The complainant has since found out the truth and is upset she had been lied to, and taken advantage of because of her emotional state, and the abuse of your position as a police officer. This incident brings into question your maturity and honesty in dealing with the public as a police officer with the Hamilton-Wentworth Regional Police Force.

In conclusion, you have shown a lack of development in your abilities to deal with your fellow co-workers, superiors and the public. You have shown a lack of motivation in your inability to achieve the minimum physical fitness standard of 75%, and failing to try and achieve this standard. You have been continually counselled by numerous people, such as Sergeant Watts, Sergeant Tonello, Inspector Hanmer, and Gary Goguen and finally Superintendent Robertson and ignored their advice and warnings. You have lied to both members of the Force and the public and abused your position as a Police Officer. Your development has been slow, your working relationship deteriorating and your ability to be trusted, misplaced.

After due consideration of all of the above, Chief Colin Millar will recommend to the Board of Commissioners of Police that your services as a police Constable be dispensed with forthwith.

30The recommendation was prepared and composed by Staff Sergeant Watts who was in charge of recruitment and recruits. He was thoroughly examined and cross-examined about why so many incidents were mentioned in the letter when they had not prevented the recommendation for continued service at the fourteen-month point. He summarized his rationale for the contents and the timing of the letter as follows:

It was the overall performance of those 18 months. Resting heavily was the failure to successfully pass the physical fitness and meet the standard. But I think everything was looked at, including the incident with Superintendent Robertson, the paragraph 8, his overall performance, and the fact that the next meeting of the Police Services Board is coming up soon, and the fact that we were under the guideline of 18 months, it had to be done before then.

31He was adamant in his testimony that the relationship with Jane Doe was not the sole motivating factor for terminating employment. Instead, he said it was a “pattern”? of “deteriorating conduct”? and, that overall, Mark Daniels was not considered to be “the kind of officer we wanted”?. Sergeant Watts also testified that either the failure to pass the physical or the reasons in paras. 1 to 5 on their own would have been enough to warrant the recommendation to terminate service. In an affidavit dated May 31, 1991, which was filed in support of the respondent's position in Mr. Daniels' application of judicial review of the decision of the Police Services Board, Staff Sergeant Watts explained his reasons further:

The deficiencies outlined in the letter from Deputy Chief Frid to the applicant ... recite the reasons for his recommendation to the Police Services Board for the dismissal of the applicant. While some are more serious than others, all of them bear on the suitability of the applicant, in the opinion of management as conveyed to the Board to be a member of the Force ...

In recruiting future Police Officers, the Force is concerned not only with the proper and adequate performance of routine police duties, but also encourages the demonstration of positive personality traits such as maturity, self reliance, reliability and common sense. The performance of the applicant in the area of physical fitness and the negative qualities displayed in his relationship with [Jane Doe] strongly militated against his permanent appointment to the Force.

32Deputy Chief Frid was asked in his testimony why he accepted the recommendation to dispense with Mark Daniels' services. His answer was:

It was just a number of events and more deterioration during his probationary period, far less than I expected. And he failed the physical part of the probationary programme ... I was concerned with the last couple of events. The interview with Superintendent Robertson and the Professional Standards Branch file. I felt that he had deceived the Superintendent and it could have brought embarrassment to the Force.

33The Chief of Police at the time was Colin Millar. He was asked why Mark Daniels was terminated. He too spoke of the “culmination of a number of events”? and made specific reference to the incident with Superintendent Robertson and the relationship with Jane Doe. In cross-examination, it was suggested that these two incidents became “the drops in the bucket that caused the water to spill”?. His reply was “Well, you're phrasing it better than I can”?.

34There is consistency in the substance, if not the details, of the testimony of these senior management officials regarding concerns about deterioration of performance, the failure to pass the physical fitness standards and the incidents concerning Jane Doe and Superintendent Robertson. But Mr. Daniels testified that he was given inconsistent messages by senior officers at the time of these events. Mr. Daniels alleges that P.C. Slack, the Executive Officer to the Chief, told Mr. Daniels that the termination was “for performance”? and that his involvement with Jane Doe was “irrelevant”?, his “lies to Superintendent Robertson were a minor issue”? and that his involvement with Jane Doe was a “moral issue”?. Officer Slack denies saying all of this.

35Sergeant Garchinsiki was willing to represent Mark Daniels before the Police Services Board and argue that the reasons set forth in the letter quoted above were not sufficient to terminate employment. However, Sergeant Garchinsiki had other professional commitments on the same day that the Commissioners were scheduled to meet. He wrote seeking an adjournment of one week in order to properly prepare and be able to attend. The Board refused to grant the adjournment. The reason given in evidence at our hearing was that the Commissioners meet only once a month at pre-scheduled meetings and that there was a desire that the Daniels matter be heard and determined while he remained in the status of a probationary employee. Sergeant Garchinsiki testified that he felt the “lack of courtesy”? in denying the adjournment was “exceptional”?.

36The powers and responsibilities of the Police Services Board are to “constitute a police force”? by making the appointments to the Force. It also governs and regulates the Force in accordance with the Regulations under the Police Act [R.S.O. 1980, c. 381] dealing with the conduct, duties, suspension and dismissal of members. Under the Police Act a police officer is entitled to a full hearing if s/he is facing a penalty. But a Police Services Board has the authority under s. 27(b) to “dispense with the services of any constable within eighteen months of his becoming a constable”? without a formal “hearing”?.

37The meeting of the Police Services Board convened as scheduled on May 16, 1990. The five members of the Board were present as well as Staff Sergeant Watts, Deputy Chief Larsen, and Deputy Chief Frid. Staff Sergeant Watts spoke on behalf of the Chief of Police. He filed the letter recommending termination, with no other corroborating material. Sergeant Garchinsiki had put aside his other commitment for that day and appeared to speak on behalf of Mark Daniels. Sergeant Garchinsiki also filed extensive documentation in support of the Daniels position, including a lengthy written response to the recommendation for termination. Mr. Daniels admits that Mr. Garchinsiki said everything that should have been said at the hearing on behalf of Mr. Daniels' position. Ms. Virginia Cott, the Vice Chair of the Commission, testified that Mr. Garchinsiki's presentation was “very thorough and very impassioned ... and I felt he had done an excellent job in presenting his arguments”?. At the end of these submissions, Sergeant Garchinsiki and Mark Daniels were asked to leave. The senior police administrators stayed in the room with the Police Services Board. The five Commissioners deliberated for some time and arrived at the conclusion that they would accept the recommendation to dispense with the services of Mark Daniels. On May 17 Mr. Daniels received the Board's written decision terminating his service. His probationary period would have expired on May 29,

38It is Mr. Daniels' firm belief that the reason the recommendation for his termination was accepted was because of the interracial aspect of his relationship with Jane Doe. He testified that he believes that this was certainly a factor in the minds of the Commissioners. He does not point to any specific evidence or statement which would establish that Jane Doe's race ever came to the attention of the Commissioners. He admits that while he was in the presence of the Police Services Board, there were no remarks made giving any reference to the race of Jane Doe. Instead, he suggests that their knowledge of her race must have been inferential. He testified: “They had further discussions without me. They knew I was black ... They certainly discussed the fact that I was black and Jane Doe was white”?. When he was asked, “How do you know that?”? He answered, “I know that because I am black. I know. You wouldn't understand what it is to be discriminated against, so you would not understand”?. Sergeant Garchinsiki only recalls alluding to Mrs. Doe's race in his presentation: “I know for a fact that I did allude to her race or colour in my oral or verbal submissions to the Commissioners at that time”?.

39The evidence given by witnesses for the respondent were consistent regarding the lack of discussion about Jane Doe's race or colour at the Police Services Board meeting. While a few of the senior officers in attendance did know that she was white, none was able to recollect that her race ever came up as an issue. Virginia Cott testified, “I don't recall that it came up as an issue in any way”?. Deputy Chief Frid testified that her colour “was not the subject of discussion”?. The position of the respondent is clearly that the interracial aspect of the relationship with Mrs. Doe was not a factor in the Police Services Board's decision to dispense with the services of Constable Daniels.

40As a result of all these events, Mark Daniels found himself dismissed from the Hamilton-Wentworth Police Force. The position of the Force has consistently been that it had the authority and right to dispense with his services as a probationary employee. The respondent says that Mr. Daniels' work performance, together with the Robertson and Jane Doe incidents, amply justifies the decision to terminate. But the Commission and the complainant assert that the pattern of conduct of the respondents leads to an inescapable inference of racism. Their reasoning is best summarized in Mark Daniels' testimony when he said:

In order to camouflage the acts of discrimination, they had to bring other facts into hide the real reason. The reasons and the facts they brought in were not presented accurately in the termination letter. That's where I draw my inference of racism.

41He also listed all the factors that make him believe that the interracial aspect of his relationship was either the determining or a contributing factor in his dismissal. He complains about the way the investigation was handled and asserts that the Professional Standards Branch should have investigated Jane Doe's father's motives for approaching the Police Force. He claims that there should have been more sensitivity to his race at the Police Services Board and that he should not have been compelled to leave the room while senior management who were presenting the case against him were allowed to stay with the Commissioners. He testified:

I still feel today that the Board [Police Services Board] had an obligation to maybe go the extra mile to respond to me as a black man, and be sensitive to me to eliminate any perception of racism that I may have.

He says this could have been done by not excluding him and Sergeant Garchinsiki from the room. Mark Daniels also argues that Sergeant Garchinsiki was able to refute and explain every allegation that was leveled at the Police Services Board meeting. Therefore, Mr. Daniels concludes that the only reason left for his termination must have been his race and the interracial relationship with Mrs. Doe. He testified, “The minute that a black man interacts with a white woman in any way, shape or form, there are some people that take offence to that”?. He testified that all the members of the Police Services Board would be included as such people.

42However, it was conceded that even though Mr. Daniels believed that race was a motivating factor in his termination while the events were unfolding, there was a strategic decision made by him and Sergeant Garchinsiki to not raise race as an issue before the Police Services Board. Sergeant Garchinsiki testified that he felt that the Board could draw the “innuendo”? that race was an issue. However, they decided not to raise it directly. The position taken on behalf of Constable Daniels at the Police Services Board can be summarized from Sergeant Garchinsiki's written submissions filed on behalf of Mr. Daniels.

P.C. Daniels is guilty of one thing in this situation — extremely poor judgment in succumbing to the temptation of the constant, romantic advances of an attractive female.

When P.C. Daniels realized the seriousness of the situation and the relationship was evolving into more than a friendship, he fabricated numerous stories hoping to end the relationship with Jane Doe.

As he attempted to gradually distance himself from her, she became upset and angry once it was apparent that P.C. Daniels was no longer interested. It was at this point that she filed her complaint.

There is no question that both parties conducted themselves in a less than exemplary fashion and both must shoulder the blame for their conduct. It would hardly be fair to label P.C. Daniels as the most guilty party under these circumstances. We can only hope they have both learned a valuable lesson.

In conclusion ... the real issue here is the complaint of Jane Doe. If it had not been for her complaint, this matter would not be before [the Police Services Board] on such short notice.

The remaining reasons for the recommendation of dismissal are somewhat frivolous, vague and general in nature ... similar allegations could be made against the majority of recruits, or for that matter, any police officer. We are not all programmed to be perfect.

43It is important to set forth why Mr. Daniels believes he was a victim of discrimination and unequal treatment. The following exchange in cross-examination illustrates Mr. Daniels' perception in his own words:

Q. So, what is your problem with the fact you were terminated?

A. The problem with the fact that I was terminated was I've been terminated because of my associating with a white woman, [Jane Doe], and in my heart I believe that if that in itself was the reason why they wanted to terminate me, they would have just came [sic] outright and they would have said, “Look, she never complained, we just don't like you going out with her. You're fired”?. I would have accepted that.

But the fact that there's a complaint that's put in paragraph 8 of my termination letter that she never made, there is allegations about my ability to get along with my fellow co-workers, members of the public, my working relationship deteriorating, which is all false — my assessments say the contrary. The fact that they threatened me with resignation over Jane Doe's non-complaint, the fact that Superintendent Robertson suggested that I should resign, that I was a visible minority and other police forces were on a hiring blitz for visible minorities, suggesting I resign over a complaint of a white woman that was never made — and then to camouflage the fact of this white woman, they bring up all those other reasons. And even the reasons they bring up, some of them are deliberately taken out of context to build and to hide the fact that [t]his woman's white and try to evade the fact of discrimination.

Q. What of your work performances? Do you think that the references to your work performance indicate equal treatment?

A. Absolutely not, and that's a major problem. I never had a problem with my work performance. I performed the duties well, as my Training Officer states in the assessment:

Mark performs his uniform tasks adequately and knows where to look for information.

He made that comment in my assessment.

These factors summarize why Mr. Daniels believes that he is the victim of discrimination.

44In addition, the second meeting that Mr. Daniels had with Superintendent Robertson is pivotal in explaining why there is a perception of racism in this situation. Mr. Daniels referred to their discussion about the possibility of resignation. Mr. Daniels testified that Superintendent Robertson “told me that I was a visible minority and that other Police Forces would hire blacks so I should quit ... [He told me to] call the Professional Standards Branch and tell them if she withdraws the complaint I will resign”?. Mr. Daniels says that he found this statement offensive and that he was shocked. Then he claims that Superintendent Robertson went on to say that if he didn't resign he would face charges under the Police Act and that his wife and neighbours would find out about this. This was very upsetting to Mr. Daniels because he had just moved his family to Hamilton. While he is prepared to admit that Superintendent Robertson was correct about there being recruitment drives for visible minorities across the province, Mr. Daniels found himself shocked to be asked to resign over “the complaint of a white woman who didn't complain and the threat of police action if I didn't resign”?. As he summarized:

I'm black, my race should have absolutely no relevance. He should just say to me “Look, I think you should resign”?, resign and that's it.

45All these factors and the fact that the Unemployment Insurance Record of Employment initially lists the reason for the severance of the employment relationship as being a “quit”?, combined together to persuade the Human Rights Commission and Mr. Daniels that the Force was trying to camouflage the fact that his race and the interracial aspect of his relationship with Mrs. Doe were triggering or contributing factors in the decision to terminate his services as a probationary constable.

46Other evidence that was offered to substantiate the claim of discrimination was said to be the inaccuracies in the letter recommending termination. Several inaccuracies in the details of the performance criticisms were pointed out. The Human Rights Commission and the complainant put the most emphasis on the fact that that letter and Sergeant Watts' presentation to the Police Services Board represented Jane Doe as a “complainant”?. However, she never signed the official Complaint Against Police form. Further, she later swore an affidavit filed on behalf of Mr. Daniels in the judicial review saying:

At no time did I perceive this statement [the letter she submitted on April 4] to be a complaint in any form against Officer Daniels. In the course of my discussions with the Professional Standards Branch I advised that I did not wish to take any disciplinary action or indeed any action against Constable Daniels.

47The Professional Standards Branch had a document entitled “Position and Procedure”? dealing with “external”? and “internal”? complaints against police officers. “External complaints”? are those lodged from outside the membership of the Force. The procedure contains the following pertinent directions:

All complaints will be documented on OPC Form No. 018 (Complaint Against Police) and the allegations will be investigated. The Complaint will be concluded as unfounded, exonerated, not sustained or sustained. At this time the citizen and the Officer will be advised of the outcome of the investigation.

48Internal complaints are complaints lodged by a member of a Force directly to the Professional Standards Branch about improper conduct of another member. The procedures for internal complaints do not include the requirement that the complainant and the officer would be advised about the outcome of the investigation. The procedure is as follows:

1. INTERNAL COMPLAINTS

Police officers, as guardians and regulators of other people's conduct are expected to maintain high standards in their own professional and personal lives.

The badge of office is a symbol of public faith and trust and to insure this confidence the police code of ethics must be observed.

2. PROCEDURE

Any member of this force may complain directly to the P.S.B. [Professional Standards Branch] about the improper conduct of another member. The P.S.B. will be responsible for receiving, recording and investigating this type of complaint. The Deputy Chief of Administration will be advised of the complaint. No investigative reports, files or material will be disseminated or discussed outside the P.S.B. without the consent of the Deputy Chief of Administration.

49In Mr. Daniels' situation, there was conflicting evidence about how the complaint was processed. Setting aside the question of whether or not Jane Doe actually “complained”?, the witnesses for the respondent gave conflicting evidence. Staff Sergeant Williams from the Professional Standards Branch considered his investigation into Mark Daniels as being prompted by an external complaint. Referring to the fact that the investigation had begun or been prompted from outside the Force, he said, “What starts public, stays public, in my mind”?. However, his colleague from the Professional Standards Branch, Staff Sergeant Matteson, testified that although the matter may have begun because of an external complaint, it was transformed into an internal complaint around the time that they received instructions from Deputy Chief Larsen to contact Superintendent Robertson about his conversation with Constable Daniels regarding resignation. The notes kept by the Professional Standards Branch are fairly detailed in some respects. But there is no record of what type of complaint this was considered to be or that the nature of the investigation was ever transformed from ”?external”? to “internal”?. Nor is there any record that either Constable Daniels or Mrs. Doe was ever notified as to the outcome of the investigation. From Mr. Daniels' point of view, the distinction between whether it was an internal or external complaint is significant in terms of perceived fairness and justice. In addition to the distinctions set out above, police officers are given copies of the Professional Standards Reports with external investigations, not internal. From the point of view of the respondent, the distinction was not so significant. Chief Millar was asked whether an external complaint would always remain as such, as Staff Sergeant Williams had suggested. Former Chief Millar suggested that an external complaint “may prompt an internal investigation. I don't know how you separate the two”?. In such a situation, he said that the two types of complaints would be carried on as essentially one investigation.

50A further complaint of Mr. Daniels is that there were white probationary officers who had the same type of record as his who were not terminated during their probationary period. Thus, he said he was treated differently than these white officers. Again, it was said that the criticisms of his performance were used as a camouflage to hide the racial motive in his termination. While the complaint, as amended, is only directed against the Hamilton-Wentworth Board of Commissioners of Police, Mr. Daniels alleges that the acts of discrimination were perpetrated by all the white officers who had any dealings with his situation. In order to test the allegation that the performance criticisms were actually raised to hide a racial motivation, the substance of the performance issue must be addressed. In dealing with all the performance-related reasons that were offered in writing and verbally as to why Mark Daniels was terminated, counsel for the Commission candidly admitted that there was no attempt to “raise the implication that reasons don't exist”?. Instead, the Human Rights Commission was “trying to imply that by themselves they [the reasons offered] would not have formed the basis for termination”?. It was said that listing the various specific items as a justification for termination was in itself unequal treatment. Therefore, even though there is no substantive challenge to the basic veracity of the reasons set forth in the recommendation for termination, it is necessary to examine them individually and as a whole in order to determine whether there was unequal treatment in this case.

51The first stated reason is Constable Daniels' performance at the Ontario Police College. The letter states that his performance was “below standard”?. The record shows that his academic achievement was below average, but not below an acceptable standard. Indeed, he passed. The word “Congratulations”? was written on his O.P.C. Performance Report by Superintendent Robertson. The recommendation for termination also suggests that there were four incidents at the Police College when Constable Daniels may have “viewed some rules and expectations lightly”?. A closer examination of the records shows that, if Mr. Daniels were given the benefit of the doubt, they could be characterized as three incidents. Overall, the Police College record shows some portent of concerns that could arise, but it cannot be denied that he successfully completed the course at the College and was brought into active service.

52Paragraphs 2 to 4 of the recommendation for termination list various specific concerns. Extensive evidence was heard about these. Mr. Daniels does not deny that any of the alleged events occurred. However, he offers explanations for all of them and suggests that the language contained in the letter exaggerates the seriousness of the incidents. The respondent's position is that these paragraphs summarize documented incidents that required corrective counselling.

53The fifth paragraph of the recommendation for termination deals with Constable Daniels' failure to meet the minimum physical standards required by recruits. The Force had a requirement that recruits pass a physical fitness test in order to complete their probationary period. There is no challenge to the legitimacy of such a requirement. Constable Daniels tried to pass the test on two occasions. Both times he failed. His last effort was March 20. Again, he had explanations for his failure. But, he expressed confidence that he would have been able to meet the fitness standards before the eighteen months expired. It was the Force's practice to give opportunities to retest in order to meet the requirements. Mr. Daniels testified that he had the understanding that he would “be in trouble”? if he failed the test a third time, but he claims to never have understood that his job could be in jeopardy as a result of the failed second physical. He also claims that after he failed the test for the second time he was advised by the Fitness Co-ordinator, Gary Goguen, that he would get back in touch with Mr. Daniels to reschedule the test. Mr. Daniels claimed that he received written correspondence to that effect. Mr. Daniels did not produce such a document at the hearing. The Force has no record that such a letter exists. Gary Goguen testified that when Mr. Daniels failed the test the first time it was impressed upon him that achieving the fitness standard was very significant and that it was necessary for him to pass in order to achieve permanent status. He was also told that his failure would be reported to Sergeant Watts. When Mr. Daniels failed again at the fourteen-month point, and indeed scored lower than before, Officer Goguen claims that he told Mr. Daniels that it was a “very serious situation”? and that it was up to Mr. Daniels to make arrangements for additional testing when he was ready. After March 20, Mr. Daniels made no attempts to be retested. He claims that he had no idea that the physical fitness test would be so crucial to his employment until he received the recommendation for termination on May 1. His only explanation for not making an appointment for retesting between March and the beginning of May is that he was expecting to hear from Officer Goguen.

54On May 14, 1990, Staff Sergeant Watts promulgated a memorandum to probationary officers, setting forth the Force's explanations:

It has come to my attention that a growing number of Probationary Officers are adopting a popular misconception; first, that it does not matter if you fail your five, ten or even fourteen month fitness test, and secondly that because of the time and money invested in you, this department would not terminate your employment because of a failed fitness test.

You are seriously misinformed if these are your beliefs. The results of each fitness test goes into your file and is used in your evaluation during probation. A failed test or even a decline in your level of fitness demonstrates to us complacency and a lack of discipline and desire to be a police officer. Fail the fourteen month test and you will be given one more opportunity to pass. Fail that test and make no mistake, your employment with this department could be jeopardized. This has happened three time[s] in the past and with the test results seen recently, more will be forthcoming.

The respondent's case concedes that Constable Daniels never received such a memorandum. However, P.C. Goguen's evidence was offered to establish that the same concepts were impressed upon Constable Daniels orally.

55The recommendation for termination also cites an “inability to conform with dispatch instructions”? as a contributing factor. This issue arose out of the fact that Constable Daniels was stopping Highway Traffic Act offenders on his way in for scheduled lunch breaks and arriving later than expected by dispatch. This was causing concern with scheduling and accommodating other officers' luncheon shifts. There is documentation filed regarding The counselling given to Mr. Daniels surrounding these incidents. The importance of co-operation and co-ordination with dispatch was explained by Inspector Hanmer and by Constable Daniels' training officer, P.C. Phil Cranmer. Mr. Daniels admits that the incidents occurred, but does not agree with the serous characterization that has been attached to them. He also denies receiving some of the specific counselling that is recorded in the documentation.

56The Human Rights Commission and Mark Daniels allege that using all these issues against Constable Daniels amounts to differential treatment. Specifically, it is claimed that many other probationary officers also had performance problems and received counselling and remedial assistance, rather than being terminated. However, his view of counselling is limited to counselling that is disciplinary in nature. There is certainly ample evidence on the record of guidance being given to Constable Daniels which would amount to counselling in a non-disciplinary sense. Mr. Daniels also complains that other probationary officers with performance problems were given new training officers, rather than receiving discipline or being terminated. The respondent's position is that the relationship between Constable Daniels and his training officer, P.C. Cranmer, was effective and did not require change.

57Full disclosure was made to the Commission of all the files of probationary officers in the five years leading up to this complaint. A great deal of effort was directed in this proceeding at exploring the claim that there has been differential treatment of Mark Daniels as compared to white probationary officers. A number of the documents show that other probationary officers had deteriorating performance appraisals, received extensive counselling, were offered remedial assistance, and then completed the probationary period to become members of the permanent force. But none of those records also indicate any incidents remotely comparable to the exchange with Superintendent Robertson, the relationship with Jane Doe, or the fitness issue.

58Additional records regarding other probationary officers indicate who were terminated and who resigned. Two resigned who were recommended for termination because they were unable to meet the fitness standards. Another was terminated by the Police Services Board in 1992 for failure to pass the fitness test. Several other recruits' records reveal very poor performance leading to recommendations for termination or discussions leading up to such a recommendation. In all those cases, the recruits resigned before formal proceedings were completed. In addition, one recruit resigned after management became aware of an “incident”? between him and a prostitute. Finally, records were filed regarding members of the permanent Force who were disciplined, not discharged, for discreditable conduct.

59Having dealt with the performance aspects of the recommendation for termination, one must now deal with the reasons cited concerning the relationship with Mrs. Doe. One of the Human Rights Commission's and Mr. Daniels' major criticisms of the recommendation for termination is directed at para. 8 of that document. In particular, they attack the following sentence:

It was alleged that during the course of an investigation which involved the complainant, that due to her vulnerable emotional state you used your position to gain affection and sympathy from her. [Emphasis added.]

The position of the Human Rights Commission and Mr. Daniels is that this statement was misleading and inaccurate. First of all, there was much controversy about who in fact was “the complainant”?. The evidence on this issue was very confusing. In opening statements, counsel for the Commission promised, “We're going to show you that Mrs. Doe never complained about Mr. Daniels”?. Counsel for the respondent then explained, “The Complainant in this case was in fact the father of Jane Doe. It is true that the Professional Standards Branch ... in their documentation of the complaint in the first instance identified the Complainant as being Jane Doe.”? As the evidence unfolded, it became clear that Jane Doe's father never lodged a formal complaint. He merely spoke to a friend of his who was on the Police Force, who in turn set about the chain of events that resulted in the Professional Standards Branch investigation. It is also true that Jane Doe never filed a formal complaint. But she did sign a letter saying, “He [Mark Daniels] has disgraced his badge and himself”?. She added that she did not wish any disciplinary action taken towards him.

60All this led to a great deal of confusion. The Professional Standards Branch clearly led Mr. Daniels and Mr. Garchinsiki to believe that Jane Doe was a complainant in the formal sense of having lodged an external complaint under the Police Force's external complaints procedure. However, by the time the Police Services Commission convened to consider whether Mr. Daniels' services should be terminated, Mr. Garchinsiki had spoken to Jane Doe. He then told the Police Services Board that Jane Doe was in fact not a complainant or even complaining in this matter. To the Human Rights Commission and Mr. Daniels, the representation of Jane Doe as a “complainant”? was a fundamental misrepresentation of the situation both to Mr. Daniels and to the Police Services Board. To Chief Colin Millar, the issue of whether Jane Doe wished to complain or whether she filed a formal complaint was not a matter of concern. He explained:

Many of these investigations are not initiated by the Complainant. Certainly information was brought forward that warranted an investigation of the Police officer in regard to irregularities.

61The second aspect of Mr. Daniels' and the Human Rights Commission's criticism of the recommendation for termination deals with the characterization of Jane Doe as being in a “vulnerable emotional state”? at the time of her interaction with Mark Daniels. Mrs. Doe was not called as a witness by either the Human Rights Commission, the complainant or the respondent. The Board of Inquiry never had the benefit of her direct evidence. Nor was any expert evidence offered by either side to explain or categorize the “emotional state”? of health or “vulnerability”? of a woman in Jane Doe's circumstances. The [sic] is evidence that Officer Slatterly was told by Jane Doe's father that he was concerned about her “vulnerability”? due to the break up of her marriage from an abusive and suicidal spouse. On the other hand, we have Mrs. Doe's letter of April 4, 1990, which does not contain any expressions of vulnerability per se. There is also her affidavit which was filed in furtherance of the judicial review where she swore:

It had been suggested to me by the interview from the Professional Standards Branch that Officer Daniels had taken advantage of a supposed vulnerable, emotional state and that he had used his position as a Police officer to gain my sympathy and affection. I categorically deny that Constable Daniels did this.

There is also the evidence of Mark Daniels himself from the following exchange during cross-examination:

Q. You didn't think that meeting her [Jane Doe] in a condition of distress should have made you very cautious about having any socializing relationship with her after the fact? You didn't think of that?

A. Mrs. Doe, she was not in any state one way or the other.

At another point in his testimony, Mr. Daniels asserted:

Jane Doe was never — I'm going to quote — never in a vulnerable emotional state. I was the one that was continuously, continuously trying to avoid Jane Doe ... That situation, when you look at it on the face, certainly is extremely poor judgement. But if you understand what the situation is you will know that Jane Doe was not taken advantage of, she was not in a vulnerable emotional state and Jane Doe made it clear that ... she wanted out of this marriage and that was it.

62From the point of view of the Police Force, the situation was one where the “vulnerability”? and the “emotional state”? of someone in Mrs. Doe's situation appeared self evident. Staff Sergeant [sic] Robertson summed up the position of the Police Force in the following exchange:

A. Whether or not Mr. Daniels was seeing a woman, was not as much of a concern to me as it was the fact that this particular relationship involved the spouse of a suicide or attem. [sic] suicide victim. That is a vulnerable woman who he had met in his line of duty who was the spouse of a victim we had been called upon to assist.

Q. You assumed that she was a vulnerable woman?

A. Any spouse of any suicide victim, whether it would be male or female, would be certainly vulnerable.

Q. You assume that?

A. There is no assumption there. I think it's quite obvious. Common sense would dictate that.

63The Force also considered Mr. Daniels' lies to Mrs. Doe as “discreditable conduct”?. As Staff Sergeant Watts explained:

I guess the idea of having been lied to or misled gave me cause for concern and the fact that there basically is a possible manipulation. It could [that] ... could bring discredit on the Police Force.

64Staff Sergeant [sic] Robertson also expressed the Force's concern about the origins of the relationship in the following exchange:

A. Our responsibility to victims would be that officers would not strike up a relationship with the spouse of a victim.

Q. Ever?

A. I would hope not.

Q. And that is contained in some policy somewhere?

A. Common sense would dictate that.

Q. That's a judgment call?

A. Yes, sir.

65Whether or not the Human Rights Commission or the respondent is correct about Jane Doe's emotional state, Mr. Daniels has repeatedly admitted that forming a relationship with her “evidenced extremely poor judgment and was less than exemplary”?. He says, “I am accepting sole responsibility for this”?. Mr. Daniels also admits that he said many things to Mrs. Doe and that they were untrue. He claims that he told Jane Doe these stories once he realized that her feelings towards him were getting too intense. He explained:

I believe that this was turning into more than a friendship. So in an effort to end my friendship with her, I told her some untruths to end the friendship ... I will certainly acknowledge my lack of good judgment in what I told her to end the relationship.

66He claims that he felt that these tales about his undercover activities and previous RCMP experiences would result in her withdrawing her attentions towards him. But he kept emphasizing that Mrs. Doe was the aggressor in the relationship. Yet he adds, “Having said that, I certainly accept my moral responsibility here”?. He admitted that senior officers need to have confidence in his judgment in order for him to be an effective police officer. Then, when asked why he felt he should not have been terminated for his example of poor judgment, he responded:

A. I believe we all make mistakes. I think that everyone deserves at least one fair chance to rectify any mistakes, I also believe that even when it comes to criminals in this society, you still operate under the notion that people can change, be rehabilitated, better themselves.

Q. Did you consider the matter with Jane Doe to be a private matter?

A. I considered it to be a private matter.

67He also testified that as far as he knew the Force has no policy prohibiting the formation of relationships with people who had been met in the course of duty. He also said that no one had ever told him that he was in breach of any protocol until his conversation with Superintendent Robertson. Finally, he said that he knew of no other police officer, either probationary or permanent, who had ever been disciplined for having a relationship with a person who had been met on the job.

68Since the moment of his termination, Constable Daniels has vigorously challenged the way he was treated. In early June 1990, he approached the Human Rights Commission for assistance. In July and August, he complained to the Ontario Police Commission. In January 1991 he retained a lawyer to write to the Police Services Board protesting their decision and alleging that the termination was triggered by his interracial relationship with Mrs. Doe. It was also asserted that Mr. Daniels was denied lack of reasonable notice regarding the hearing and that the hearing itself was conducted in a way that offended the principles of natural justice. The letter further indicated that the Human Rights Commission had been contacted and that an application for judicial review was being prepared. The letter asked that the Police Services Board review its decision “in the hopes that some accommodation can be reached”?. Mrs. Cott testified that she does not recall ever seeing this letter. However, she does recall that the Commissioners were advised about receiving a request to reverse their decision. There is no evidence that the Police Services Board ever turned its mind to the specific allegations of discrimination made in the January 1991 letter. The record simply shows that the Commissioners declined the request to review their previous decision about Mr. Daniels.

69The matter then proceeded to judicial review. A decision was issued on February 13, 1992. The endorsement from the Divisional Court indicates that the issue considered at the judicial review was the exclusion of Mr. Daniels and Mr. Garchinsiki from the meeting of the Police Services Board while Sergeant Watts and other senior staff remained in the room and were available to answer more questions put to them by the Commissioners. The Divisional Court ruled that Mr. Daniels was not entitled to “a hearing”? as had been established in the case Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1979), 1978 CanLII 24 (SCC), 88 D.L.R. (3d) 671 (S.C.C.). It was suggested that it might have been prudent for Sergeant Watts to withdraw from the meeting at the same time as Constable Daniels and Sergeant Garchinsiki. However, the Divisional Court focused upon the fact that Mr. Daniels and his representative were not entitled “as of right”? to be at the meeting in the first place. The Divisional Court concluded that there had been no violation of Mr. Daniels' legal right to procedural fairness. His application for judicial review was dismissed with costs.

ARGUMENT

Submissions on Behalf of the Human Rights Commission

70Counsel for the Commission submitted that this was a case of discrimination based on race and colour and that Mr. Daniels had been treated unequally. It was admitted that there is no concrete evidence of anyone saying that Mr. Daniels had been fired because he was black or because he was going out with a white woman. However, it was stressed that discrimination is “usually subtle, not open”?, and occurs “where there are no witnesses, where it is hidden, not exposed and not easy to find”?. The Board of Inquiry was told that its function was to “ferret out discrimination”? and give the Code the broadest construction in order to fulfil its purpose and effect. The Board of Inquiry was asked to “go behind the words spoken by the witnesses for the respondent, to look deeply and hard at the facts in order to see what they truly represent”?.

71After reviewing the facts of the case, counsel for the Commission suggested there are two issues in this case:

1. Was discipline taken against Mr. Daniels more severe than actions taken against white police officers for the same offences?

2. Was Mr. Daniels terminated for poor work performance or because he associated with a white female?

72Turning first to the question of whether the discipline against Mr. Daniels was more severe, counsel for the Commission argued that it was. Focusing on the letter recommending termination, it was said that six of the reasons relate to poor job performance. It was pointed out that under the Police Services Act [R.S.O. 1990, P.15], there is a wide discretion regarding discipline. Comparisons were drawn with seven permanent police officers who were found guilty of discreditable misconduct. Three lost pay, three were admonished and one allegation was withdrawn. It was said that to terminate Mr. Daniels under the circumstances in this case was an extreme measure. It was said that the Force's decision raises the issue of whether meeting a person in the course of duty and lying about it is cause for discharge. It was suggested that in speeding up the process to terminate Mr. Daniels while he was still on probationary status, the respondent made mistakes and did not observe its own practices. It was argued that Mr. Daniels was terminated for a complaint that was “not valid, was not sustained and was not triggered by a complainant”?. Therefore, it ought to be considered as highly suspect and highly inappropriate. It was said that this suggests that “something is amiss”?. Further, it was suggested that the Police Force knew that the relationship with Mrs. Doe was not sufficient to sustain the termination, so they “threw in work performance”? in order to camouflage the real motive of discrimination.

73It was stressed that the first time Mr. Daniels ever heard about problems with work performance was in the letter recommending termination. Turning to each allegation separately, it was argued that the concerns about his performance at the Ontario Police College, his lateness, his assessments dropping and problems with dispatch were either all explained and dealt with completely at the time and/or were not inconsistent with other probationary employees who attained permanent status. Insofar as attaining the fitness standards is concerned, it was admitted that he had failed the test twice, but it was argued that he was unfairly not given another opportunity for retesting. Acknowledging that the respondent claims that it was up to Mr. Daniels to reschedule the test, it was pointed out that other probationary officers failed three times and were told in writing to make another appointment. It was said that it could not be said that Mr. Daniels was fired because he failed the test twice because evidence shows that others failed two or three times and were told to retest. It was said that Mr. Daniels was treated differently than other officers in that he was not warned in writing to seek a retest. Further, it was argued that he did not have time to reschedule the test because he was suspended on May 1.

74Taking all the performance issues together, counsel for the Human Rights Commission argued that Mr. Daniels was not treated equally with other officers. It was stressed that despite all the purported concerns, he was recommended for continued service at the fourteen-month assessment and that it is unfair and discriminatory to resurrect allegations in order to provide rationale for a recommendation for termination.

75Turning specifically to the question about the “lie to Superintendent Robertson”? and the relationship with Mrs. Doe, counsel for the Human Rights Commission attacked the rationale that was supplied by the respondent. It was asked, “Who told the respondent that Mrs. Doe was in a vulnerable, emotional state, how did they know that, why and how did they reach that conclusion, how could they know that Mr. Daniels had exploited that, why did they say that Daniels manipulated her?”? Arguing that no one had actually complained about Mr. Daniels' conduct, it was said that this critical piece of their rationale was something entirely of the respondent's own construction. It was argued that they knew nothing of the true relationship between Mr. Daniels and Mrs. Doe, but they were “too willing to think the worst”?. In any event, it was said that this does not amount to discreditable conduct because there are no policies of the respondent or in the Police Services Act that relate to matters of “personal affairs”?. Specifically, it was said there was no policy against developing a relationship with a person who had been met on duty or lying to a supervisory officer regarding personal affairs. Further, it was said there was no evidence of any officers who were disciplined for similar reasons or for having personal affairs.

76Counsel for the Human Rights Commission placed particular critical emphasis on the way in which [the] Hamilton-Wentworth Police Force investigated the situation regarding Mrs. Doe. It was suggested that its own complaint process had not been followed in that the complaint form had not been signed by Mrs. Doe. It was stressed that Mr. Daniels and the Police Services Board were incorrectly told that Mrs. Doe had filed a complaint, when in fact no formal complaint was ever lodged. Inconsistencies in the testimony regarding the status of the complaint were also emphasized. It was said that the respondent was not being truthful, either to Mr. Daniels or this Board of Inquiry, regarding the conduct of the investigation, nor was the respondent acting in accordance with its own complaint procedure. By failing to follow its own procedures, it was suggested that the officers from the Professional Standards Branch ought to be the ones who were disciplined, not Mr. Daniels.

77Counsel for the Human Rights Commission asked rhetorically, “Why are there inconsistencies in the evidence of the respondent and differential treatment?”? It was suggested that the answer was that no one would admit that the true reason for the termination was the interracial relationship with Mrs. Doe. It was said that this was evidenced in the fact that many witnesses refused to admit that they knew that Mrs. Doe was white. He asked the Board of Inquiry to not believe the witnesses who said that they did not know, or did not take into consideration the interracial aspect of the relationship. It was argued that it is “inescapable”? to conclude that the real reason for the termination was the relationship between Mr. Daniels and Mrs. Doe. Counsel argued, “It was the interracial aspect of this relationship that drove this man from his job, that caused the haste to circumvent the process, and to go behind the fourteen-month assessment because they [the respondent] can't tell you the real reason”?. It was submitted that if it is concluded that the reasons proffered by the respondent are irrational, or unworthy of belief, and that the relationship was the triggering event in the termination, then it must be concluded that he was treated unequally on the basis of race and colour.

78By way of remedy, it was requested that Mr. Daniels be reinstated into the job. He seeks damages, compensation for his suffering and interest. Specifically, in terms of reinstatement, it was argued that Mr. Daniels should be reinstated as a member of the permanent force. It was pointed out that his termination occurred just two weeks away from him attaining permanent status. It was acknowledged that he would have to pass the physical test but, given that the probationary period is now only twelve months, it was suggested that Mr. Daniels be granted permanent status as soon as he is able to pass the fitness test.

Submissions on Behalf of Mark Daniels

79Counsel for Mr. Daniels characterized the issues in a similar way to the Human Rights Commission, but specifically as follows:

Was the disciplinary action against Mark Daniels more severe than that taken against white officers?

Was Mark Daniels terminated for reasons enumerated in Exhibit 2 [the termination letter] or for his association with a white woman?

80Counsel for Mr. Daniels submitted that the following principles of law apply to this case. The Ontario Human Rights Code should receive an interpretation that advances the Code's purposes as set out in its preamble. The burden of proof is based on a balance of probabilities. If a prima facie case is made out, the onus shifts to the respondent to provide a credible reason for the conduct alleged; if the respondent can discharge its onus then the burden returns to the complainant to show that the explanation is not credible or false. Discrimination need not be the sole or even the most significant factor in the conduct complained of. A case such as this should be decided on the basis of inference from purely circumstantial evidence. Such an inference can be inferred when the treatment of the complainant is less than the respondent's own policy called for. A racially balanced workforce cannot immunize an employer from liability from specific acts of discrimination. The following cases were relied on to support these propositions: Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 (S.C.C.), Randhawa v. Lido Industrial Products Ltd.(1985), 1985 CanLII 5243 (ON HRT), 6 C.H.R.R. D/3005, Mitchell v. Nobilium Products Ltd.(1981), 1981 CanLII 4319 (ON HRT), 3 C.H.R.R. D/641, and Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) at 579.

81Counsel for Mr. Daniels then analyzed the key documentation and evidence in this case in a thorough and critical manner. It was said that the first six items in the recommendation for termination were either “overstated, inaccurately stated or of minimal gravity”?. Turning to the paragraphs dealing with the relationship with Mrs. Doe, counsel attacked the fact that she had been characterized as “a complainant”?, attacked the suggestion that she was in a “vulnerable emotional state”? and queried why the nature of the relationship should cause such concern to the Police Force. It was suggested that it was the interracial aspect of the relationship that was causing embarrassment to the Force, not the fact that she had been met in the course of duty.

82It was also argued that the Professional Standards Branch's report lends some insight “into the motivation of the Police Services Board to terminate Mr. Daniels”?. It was stressed that the report contains nothing favourable about Mr. Daniels' previous service. Counsel analyzed the report in minute detail, arguing that it contains falsehoods, partial truths, unsupported allegations and inconsistencies with evidence tendered at this hearing. The suggestion that there are falsehoods or inconsistencies is based on a comparison of the report with the affidavit of Mrs. Doe. The main concern lies with the fact that she never signed the OPC complaint form No. 018 and her affidavit denies that she was ever in a “vulnerable emotional state”? or that Constable Daniels used his position as a police officer to gain her sympathy and affection.

83It was argued that the relationship between Mr. Daniels and Mrs. Doe was a consensual relationship between adults. It was said that the nature of the relationship is “no business of the Police Department save and except as it might impact upon P.C. Daniels' duties as a policeman”?. It was submitted that the evidence never established that such an impact would result.

84Further emphasis was placed on the fact that the complaint procedure of the respondent was not followed and there was inconsistent evidence from Inspector Williams and Inspector Matteson as to whether this was an internal or external complaint. It was said that this should lead to the conclusion that the Police Force fabricated a complaint against Constable Daniels and made it appear as though it had originated from Mrs. Doe. Further, counsel for the complainant attacked the respondent's decision to convene a meeting of the Police Services Board, which does not offer the “panoply of rights that would have been afforded pursuant to the provisions of the Statutory Powers of [sic] Procedure Act [R.S.O. 1990, c. S-22] and/or the Police Services Act had P.C. Daniels' tenure ripened into that of a full fledged constable”?.

85Further, it was argued that the inference of racial motivation in the treatment of Constable Daniels can be drawn from Superintendent Robertson's suggestion to Mr. Daniels that he should consider resigning because other forces were interested in hiring visible minorities. Counsel for Mr. Daniels also argued that the respondent's “shift in emphasis”? regarding the motivations for termination should be considered as evidence of its trying to mask the racial motivation. Further, the Police Services Board was criticized for its refusal to reconsider its decision when the issue of race was put to it squarely in January 1991.

86It was argued then that there are “too many instances where the Hamilton-Wentworth Police Force elected not to follow its own procedure and too many ”˜errors' to be construed as innocent”?. It was said that the only reasonable inference to be drawn is that Constable Daniels' termination was really prompted by what senior officers felt about his involvement with a white woman which could be embarrassing to the Police Force. The remedy sought was that Mr. Daniels be reinstated as a First Class Constable with back pay and interest subject only to Mr. Daniels being required to pass the physical within three months from the date of his reinstatement. Costs were also requested.

Submission of the Respondent Hamilton-Wentworth Police Services Board

87Counsel for the Police Services Board began by urging the Board of Inquiry to put the facts in “the proper context”? of the legislative scheme in operation for a Police Services Board and for a probationary police officer. It was said that the evidence “should not get lost in forms and procedures but should be examined in its substance”?. Further, it was submitted that the theme of this case ought not to be one of discrimination. Instead, it was said that the themes that should be explored are “responsibility and judgment”?.

88Counsel began with an overview of the Police Act, R.S.O. 1980c, c. 381 which establishes the Police Services Board, the Police Force, the responsibilities of members of the Board and responsibility of members of the Police Force. It was said that these provisions create a public responsibility that gives this employer a different characteristic than that of a private employer. It was said that the Code of Discipline and Offences for member of the Police Force in place in 1990 was contained in the Regulations under the Police Act and includes discreditable conduct and deceit. The Regulation also creates a probationary period of eighteen months and allows the Police Services Board to “dispense with the services of any constable”? within that eighteen-month period. It was argued that the purpose of the probationary period was to allow the Police Force to test a probationer and ascertain the suitability of that person as a police officer. The only qualification upon the employer is that the assessment and decision should be subject to fairness and non-discrimination. It was argued that the Police Services Board had followed the duty of fairness in accordance with the decision of Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police, supra. It was argued that this is why a detailed recommendation for termination was delivered to Mr. Daniels so that he would know the allegations being made against him. The reasons were put in detail, not to “dredge irrelevant or trivial matters or to buttress another invalid reason”? but rather to detail all the considerations that were coming into play in the decision to dispense with his services. It was stressed that the respondent decided to dispense with Mr. Daniels' services during the probationary period, not that he was being subjected to disciplinary action.

89Further, it was argued that Mr. Daniels was given every procedural fairness that was required. All the available evidence was given to the Police Services Board for its consideration. Mr. Daniels had fifteen days to prepare to make his submissions, he was represented by an able advocate, Sergeant Garchinsiki, and Mr. Daniels admits that the submissions made on his behalf were thorough and complete. Further, it was stressed that there was absolutely no evidence that the race of Mrs. Doe was ever used as a consideration by the Police Services Board. It was stressed that only Sergeant Garchinsiki ever suggested that he may have raised her race by way of inference at the meeting. However, the evidence of Mrs. Cott was clear that Mrs. Doe's race was not a factor or a consideration in the Police Services Board's decision to dispense with Mr. Daniels' services. It was stressed that the racial factor was only raised after the Police Services Board's decision was rendered. Further, it was argued that all the details in the recommendation for termination were relevant issues that the Police Services Board could and should have considered in dealing with Mr. Daniels' future.

90Turning to the relationship between Mr. Daniels and Mrs. Doe, counsel for the respondent asked why Mr. Daniels would have lied to Superintendent Robertson about the circumstances of their meeting. It was suggested that Mr. Daniels must have known even then that he had something to fear in that he knew that there was something improper about the relationship with Mrs. Doe. Further, it was reasonable for the Police Services Board to ask whether Mr. Daniels' conduct off duty would be likely to suggest a reason [sic] lack of trust of him as a police officer.

91The Board of Inquiry was reminded that the relationship came to the attention of the Police Force through the complaint of Mrs. Doe's father who was concerned about the vulnerability and susceptibility of his daughter given her current family situation. When this was brought to the attention of P.C. Slatterly, she recognized a responsibility to launch an investigation into the conduct of a member of the Force. Recognizing that Mrs. Doe's position was that she did not want to lodge a complaint about Constable Daniels, despite her written statement that he had “disgraced his badge”?, it was stressed that a member of the public is not in a position to decide if discipline or other action should be taken. Instead, the Police Services Board has a responsibility to deal with its own employees as it sees fit and proper. It was argued that the information available to the Police Services Board was such that it went “beyond Mrs. Doe”?; it went to Mr. Daniels' very duties as a police officer. After conducting the investigation, and determining that Mr. Daniels had not lived up to the employer's expectation of ethical and proper conduct, the senior officers should not be faulted for their decision to recommend dispensing with the services of Mr. Daniels. It was recognized that the respondent had an option. It could have charged Mr. Daniels under the Police Act where he would have had a full hearing, and greater disclosure, or it could have proceeded as it did to dispense with his services while he was still under probationary status. It was said that the respondent had the right to make the decision it did and relied upon the decision of Blackburn and Niagara Regional Board of Commissioners of Police, unreported decision of the Ontario Court of Justice (General Division), December 16, 1992.

92It is admitted that the respondent held Constable Daniels to a high standard and that it is one that some may consider too stringent. However, it was said that the respondent had the right to apply and maintain such a standard. It is conceded that Mr. Daniels is sincere in believing that the respondent could have been more sensitive in dealing with him, but it was stressed that the Police Services Board proceeded strictly and fully within the dictates of the Nicholson decision.

93Turning to the relationship between Mr. Daniels and Mrs. Doe, counsel for the respondent picked up the theme of responsibility and judgment. It was argued that one need not be a psychologist to see that a woman in Mrs. Doe's situation would be in a “vulnerable emotional state”?. Further, it is said that a police officer dealing with her in the course of investigating the husband's attempted suicide has to be considered to be in a position of trust. It was argued that the Police Services Board acted appropriately in concluding that she was in a vulnerable position and that it was right to accept responsibility for a relationship that was created under those circumstances. Further, it was stressed that Mr. Daniels and his representative Sergeant Garchinsiki admitted that Mr. Daniels' conduct evidenced “extremely poor judgment”?. Mr. Daniels himself acknowledged that he deserved some penalty. Thus, it was said that his conduct, taken together with all the other facts, operates as a justification for the Police Services Board's decision. Further, it was stressed that there is no evidence that the decision was tainted by any improper racial factor.

94It was also argued that there was no evidence of inconsistent or differential treatment. Counsel for the respondent reviewed the evidence showing that other probationary officers had been terminated for failure to achieve fitness standards and poor work performance. Further, others had been offered the opportunity to resign. Most exercised the option of resignation. It was argued that all the evidence showed that over the five-year period under investigation. Constable Daniels was treated consistently with the other probationaries.

95Reliance was placed upon the following authorities: Police Act, R.S.O. 1980, c. 381, Regulation 791, “General — Discipline”?, R.R.O. 1980, E.E. Palmer, Collective Agreement Arbitration in Canada, 3d ed. (Toronto, 1991), ”?A Variation of ”˜Just Cause': The Probationary Employee”?, D. Brown and D. Beatty, Canadian Labour Arbitration, 3d ed. (Toronto, 1991), “Probationary Employees”?, Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police, supra, Singh v. Domglas Ltd.(1980), 1980 CanLII 3929 (ON HRT), 2 C.H.R.R. D/285, Re Constable Richard Ashby (1990), Ontario Police Reports 882 (Ontario Police Commission), Re Patrick Anthony Coccimiglio (1991) (Law Society of Upper Canada, Discipline Committee) [unreported], Blackburn v. Niagara Regional Board of Commissioners of Police, supra, Large v. Stratford (City)(1995), 1995 CanLII 73 (SCC), 128 D.L.R. (4th) 193 [24 C.H.R.R. D/1] (S.C.C.) and Harrop v. Markham Stouffville Hospital(1995), 1995 CanLII 7295 (ON CTGD), 16 C.C.E.L. (2d) 214 (Ont Ct. (Gen.Div.)).

96In conclusion, it was asked that the complaint be dismissed. By way of alternative argument, if the complaint were upheld, counsel for the respondent argued that, given the problem of the performance of Mr. Daniels and the question of physical fitness, he should not be reinstated as a permanent police officer. Instead, he should be put back as a probationary officer and be required to fulfil the fitness standards of the Police Force. Further, the respondent asked for an award of costs against the Human Rights Commission on the basis that the complaint was frivolous and vexatious. However, argument on this point was deferred because, by an earlier ruling, it had been left open for the respondent to pursue further evidence on this aspect of the case in the event that the complaint be dismissed.

THE DECISION

97Discrimination cannot be tolerated in our society. The purpose of the Human Rights Code is to express society's abhorrence of discrimination, articulate standards and to create a method of enforcement. It is an inescapable fact that discrimination occurs. Boards of Inquiry are established to inquire into and determine whether discrimination has been proven. It is hard to prove discrimination. The perpetrators of racism are usually able to camouflage their acts and rarely admit their true motivations. Therefore, a Board of Inquiry has to look carefully at all the facts presented, be prepared to draw inferences when warranted and draw appropriate conclusions on the basis of the facts presented.

98The complaint of Mr. Daniels alleges racism and discrimination based on race and colour. There is no overt misconduct. This Board of Inquiry is being asked to draw inferences from the circumstantial evidence that has been presented. There is no disagreement over the law that ought to be applied or about the principles that govern this case. However, there is fundamental disagreement as to what inferences should be drawn from the facts as presented. In order to analyze the facts and put them in their proper context, we must begin with the statutory framework to this case.

99The Ontario Human Rights Code, ss. 5(1) and (2) provide:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.

100The Police Services Act provides:

1. In this Act,

(c) “board”? means a board of commissioners of police;

2(1) Every city and town is responsible for the policing of and maintenance of law and order in the municipality and for providing and maintaining an adequate police force in accordance with the police needs of the municipality,

4(1) The obligation of a municipality to provide and maintain a police force may be discharged,

(a) by the appointment of the members of the police force by the board of commissioners of police under section 15;

8(1) Notwithstanding any special Act, every municipality that provides and maintains a police force and that has a population of more than 15,000 according to the last municipal census shall have a board ...

15. The members of the police force in a municipality having a board shall be appointed by the board.

16. A board may by by-law make regulations not inconsistent with the regulations under section 74 for the government of the police force, for preventing neglect or abuse, and for rendering it efficient in the discharge of its duties.

17(1) Notwithstanding section 2, the board is responsible for the policing and maintenance of law and order in the municipality and the members of the police force are subject to the government of the board and shall obey its lawful directions.

(2) Every member of the police force of a municipality, however appointed, is, from, and after the passing of a by-law establishing a board, subject to the government of the board to the same extent as if appointed by the board.

57. The members of police forces appointed under Part II, except assistants and civilian employees are charged with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against the by-laws of the municipality, and apprehending offenders, and commencing proceedings before the proper tribunal, and prosecuting and aiding in the prosecuting of offenders, and have generally all the powers and privileges and are liable to all the duties and responsibilities that belong to constables.

66(1) Every person appointed to be a chief of police, other police officer or constable shall before entry on the duties of his office, and every special constable when thereunto required, take and subscribe the following oath:

I, . . . . . . . . . . . . . . . . . . do swear that I will well and truly serve Her Majesty the Queen in the office of constable (or as the case may be) for the . . . . . . . . . . . . . . . . . .of . . . . . . . . . . . . without favour or affection, malice or ill-will; and that to the best of my power, I will cause the peace to be kept and preserved, and prevent all offences against the persons and properties of Her Majesty's subjects; and that, while I continue to hold the said office, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully accordingly to the law. So help me God.

Sworn, etc.

74(1) The Lieutenant Governor in Council may make regulations,

(a) for the government of police forces and governing the conduct, duties, suspension and dismissal of members of police forces;

101Regulation 791 under the Police Act provides:

4. The code applies to every police force.

5. No chief of police, constable or other police officer is subject to any penalty under this Part except after a hearing and final disposition of a charge on appeal as provided by this Part, or after the time for appeal has expired, but nothing herein affects the authority of a board or council,

(b) to dispense with the services of any constable within eighteen months of his becoming a constable.

CODE OF OFFENCES

1. Any chief of police, other police officer or constable commits an offence against discipline if he is guilty of,

(a) DISCREDITABLE CONDUCT, that is to say, if he,

(i) acts in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force ...

(iv) wilfully or negligently makes any false complaint or statement against any member of a police force ...

(vi) withholds or suppresses a complaint or report against a member of a police force ...

(d) DECEIT, that is to say, if he

(i) knowingly makes or signs a false statement in an official document or book,

(ii) wilfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties, or

(iii) without lawful excuse destroys or mutilates an official document or record or alters or erases a[n] entry therein;

102This legislation must be viewed in the context of the facts. Mark Daniels was hired as a probationary police constable. He had excellent prospects. He was trilingual, intelligent, ambitious, mature and had previous police experience. All these factors, combined with the fact that he was a member of a visible minority, made him welcome to the Hamilton-Wentworth Police Force. The Force was intent on recruiting top-notch candidates and was also anxious to be a leader in the employment equity field. Mark Daniels epitomized exactly what this Police Force was looking for in its new recruits.

103In the first fourteen months of his employment, Mr. Daniels' performance was acceptable. He had some problems with lateness and he had problems accepting instructions. He also made mistakes and was inaccurate at times because of his overzealousness. Yet the results were much in his favour. He received commendations for his work. He had good rapport with the public and other officers. He was noted for his excellent driving skills. His intelligence and his ambition were appreciated. If one looks at both the flaws and the accomplishments of the first fourteen months of his day-to-day performance and asks whether it would have been appropriate to terminate his services at that point, one would easily conclude that he could have been continued. The Force itself was fully aware of the strength of his performance, the deterioration in his performance appraisals and his flaws when it decided to continue his service at the fourteen-month review point.

104However, two problems surfaced. One related to achieving physical fitness standards and the other related to Mr. Daniels' relationship with Mrs. Doe.

105The fitness issue will be dealt with first. Achieving a standard of fitness is a requirement for completing probation. This requirement is accepted as appropriate and proper by the Human Rights Commission and the complainant. Mr. Daniels failed the physical fitness test twice. He made no effort to be retested. He claims that he was awaiting an appointment for a retest from the fitness officer, Gary Goguen. This is not credible. The fact that he did not produce the letter which he claims would confirm this casts suspicion on his claim. Alternatively, it shows how lightly he treated the fitness issue if the document ever existed and he simply disregarded it. One has to ask whether, under the circumstances, he should have awaited contact from Officer Goguen. It was a probationer's responsibility to pass the fitness test. It was made clear enough to Constable Daniels that attaining the fitness standards was a necessary requirement to passing probation. P.C. Goguen was credible when he claimed that he counselled Mark Daniels about the importance of the fitness requirement and about his responsibility to arrange for a retest when he was ready. This makes sense. Unfortunately, it was after Mr. Daniels' termination that the Force instituted explicit written warnings that probationers' continued employment would be in jeopardy if they failed to attain the fitness standards. Mr. Daniels never received such a written warning because the policy of sending the warnings was not in place during his tenure with the Force. But he did have oral counselling to the same effect.

106There are some difficult questions that were not answered by the evidence. For example, why did Mr. Daniels not even try to address the fitness issue himself between his second failure on March 20 and his May 1 suspension? There is no evidence that he ever turned his mind to the issue between March and May. He did not even claim to be working himself towards improved fitness. Further, would Mr. Daniels have been in a position to pass the test by the end of his probation in the middle of May? On the other hand, was he suspended before he got a real chance to retest for the third time? None of these questions were answered by the evidence. The only conclusions that can safely be drawn from the evidence regarding the fitness issue are first, that the Police Force's concern about fitness standards is fair and appropriate. Other probationary officers were terminated or allowed to resign because of failure to achieve fitness standards. Thirdly, while Constable Daniels could have been more clearly advised of the jeopardy he was in because of his failure to achieve the fitness standards, his lack of attempts to retest or improve his fitness before May 1 is very significant.

107The fact remains that it is impossible to know what, if anything, would have become of the fitness issue if the relationship [with] Mrs. Doe had not come to light. The evidence clearly establishes that it was this relationship that triggered a serious look at Mark Daniels' performance and first put in question his continued service. That investigation led to his suspension on May 1 and his subsequent termination before his probationary period expired. Therefore, the fitness question becomes somewhat moot except insofar as the claim of differential treatment is concerned. This leaves the relationship with Mrs. Doe, its importance and the respondent's reaction to it that must be examined in detail.

108Mr. Daniels met Mrs. Doe in the course of investigating her husband's suicide. Her written statement shows she was attracted to Mr. Daniels. She actively pursued a relationship with him. She found pretexts to wait for him at the station and to arrange for other meetings. She delivered presents for him at the Mountain Station. No one from the Police Force intervened, counselled Mr. Daniels or warned him to keep his distance at that time.

109Mr. Daniels succumbed to the advances of Mrs. Doe. He considered her attractive and as a woman who had already decided to leave an abusive marital relationship. He led her to believe he was single and unattached. While he may have initially intended to offer only friendship and support, he admits that the relationship grew. It then became apparent that she wanted “more”? from him. The relationship began to develop into more than he could handle, as a married man. It was only then that he began his efforts to discourage or deflect her attentions. He claims he lied to her to try to encourage her to end the relationship on her own, rather than to hurt her feelings. Even if this is believed, it cannot be forgotten that the development of the relationship began with his denial of his own marriage. One lie clearly had to lead to others.

110The respondent admits that off-duty conduct is not necessarily a matter of concern regarding employment. Therefore, what is it about the relationship with Mrs. Doe that would explain or justify the respondent's reaction? Was it the interracial aspect of the relationship, or was it purely the circumstances of the relationship? To answer these questions, we must look for inferences. Racial motivation has never been admitted. Inferences can be drawn from inconsistencies, from inexplicable failures to abide by established procedures or from a or [sic] lack of objective rationale in the testimony.

111There are a number of inconsistencies in the respondent's case. The first to be addressed concerns the status of Mrs. Doe as a complainant. She was represented to Constable Daniels as a “complainant”? within the meaning of the Force's external complaints procedure. Constable Daniels was told that Mrs. Doe had filed a complaint against him. In various documents and in various aspects of the testimony, Mrs. Doe was referred to as a complainant. But when Constable Daniels appeared before the Police Services Board, it had become known to him and his advocate that Mrs. Doe had never signed a formal complaint and that she did not want her letter to be treated as a complaint. Sergeant Garchinsiki, acting on behalf of Mr. Daniels, made the Police Services Board aware of this.

112The inconsistencies regarding the status of Mrs. Doe as a complainant permeate the Force's documentation. In various documents and in various aspects of the testimony, Mrs. Doe was referred to as a complainant. Is this evidence that suggests deception or is there another explanation? It is clear from the evidence that the Professional Standards Branch considered Mrs. Doe initially as a complainant. It did not concern them that she had never signed the official OPS Form 018. It was sufficient to them that she responded to the request that she attend for an interview on one day and that she handed in a three-page signed letter the next day documenting lies that had been told to her and what she herself described as “conduct that had dishonoured”? Mr. Daniels' badge. The Professional Standards Branch simply treated her letter as a complaint that warranted further investigation.

113The distinction between a public complaint and an internal compliant is important for the officer being investigated. In the case of a public complaint, the Hamilton-Wentworth Police Force's complaint procedure calls for the police officer to be advised of the results of the investigation. In the case of an internal complaint, there is no requirement to provide the results. The Human Rights Commission and Mr. Daniels criticized the respondent in this case because Staff Sergeants Matteson and Williams from the Professional Standards Branch were inconsistent about whether this was an internal or external complaint. In fact, none of the documentation characterizes the matter one way or the other. It was suggested that the only reason that the investigation would be labeled as internal at this point would be to try to belatedly explain the failure to provide Mr. Daniels with the results of the investigation. The confusion and the inconsistencies lay the respondent open to criticism and suspicion. Further, the lack of detail in the records kept by the Professional Standards Branch officers leaves them prey to additional suspicions.

114However, other aspects of the evidence must also be considered. Whether the complaint is internal or external, it cannot be ignored that the substantive issue of Mr. Daniels' relationship with Mrs. Doe was brought to the attention of the Police Services Board with the request that it be investigated from two sources. The investigation was initially prompted by the concerns expressed by Mrs. Doe's father to P.C. Brenda Slatterly. Whether the father's approach to his friend, P.C. Slatterly, was motivated by his concerns about his daughter's vulnerability as he alleges, or whether his concerns were tainted by racism, is not something that can or should be determined in this decision. There is absolutely no evidence that he raised the interracial aspect of the relationship with Constable Slatterly or that she was even aware of it.

115Once Constable Slatterly heard the father's concerns about Constable Daniels' behaviour, she was obligated by s. 1(vi) of the Code of Offences to relay the concerns to an appropriate official. Accordingly, she contacted Sergeant Watts. When Sergeant Watts heard the story, he too was obligated to pass the concerns on to the Professional Standards Branch. The Professional Standards Branch then obtained the detailed letter from Mrs. Doe and had in hand the concerns expressed by Sergeant Watts in his referral memo. At that point, the Branch was in receipt of both an internal and an external complaint that had been received about Constable Daniels' conduct. As former Chief Millar testified, in such a situation it is hard to “know”? how to separate the two types of complaints. From the course of conduct followed by the Professional Standards Branch, it appears that the issue was treated like an internal complaint because Mr. Daniels was never informed of the results. Nor, indeed, is there any reliable evidence that Mrs. Doe was informed.

116However, the evidence leads to the conclusion that no conscious decision was made as to how to treat the investigation. It seems that once the complaints were received, there was a real push to conduct the investigation and to convene a Police Services Board hearing before Constable Daniels' probationary period had expired. Only a few weeks were left. No real thought was given to compliance with the Force's procedures. Once the facts about Mr. Daniels' conduct towards Mrs. Doe and the circumstances of their relationship were known to senior management via the Professional Standards Branch, their major goal was to get the findings of the Professional Standards Branch investigation to the Police Services Board before Mr. Daniels' probationary period expired. The evidence does not support a finding of a deliberate attempt to curtail Mr. Daniels' rights by treating this as an internal complaint. Instead, the evidence leads to the conclusion that there was decisive action taken to get the situation before the Police Services Board's next meeting without giving real regard to the steps outlined in the Force's procedures for internal or external complaints.

117Another aspect of the inconsistencies in the respondent's case must be addressed to see what inferences can be drawn. The respondent's documentation and its witnesses gave differing reasons why Mr. Daniels' services were terminated. One must start with the eight reasons cited in the recommendation for termination that were accepted by the Police Services Board. These are the official reasons. No witness and no documentation would attribute the relationship with Mrs. Doe as the sole motivating factor. Sergeant Watts, who authored the recommendation for termination, testified at one point that the reason was the pattern of deteriorating conduct and that Mr. Daniels was not the kind of officer that the Force wanted on its permanent staff. On the other hand, Sergeant Watts also suggested that the failure to pass the fitness test or the performance concerns were enough, on their own, to justify the termination. Deputy Chief Frid's reasons for recommending termination combined performance, the events with Mrs. Doe and Superintendent Robertson as well as his concern that Mr. Daniels' conduct “could have brought embarrassment to the Force”?. Former Chief Millar testified that the Doe and Robertson concerns were the final “drops in the bucket that caused the water to spill”?. In essence, the witnesses say that all the events, culminating with the Doe and Robertson matters, were the reasons for termination. Other members of senior management were purported by Mr. Daniels to have offered different reasons for termination, suggesting that it was solely based on his performance. There was also confusion created by the Force's “record of employment”?, submitted to Unemployment Insurance citing “quit”? as the reason for the separation from employment.

118The fact that different witnesses cited different reasons for justifying termination and the refusal to attribute any greater weight to the Jane Doe relationship could lead to the inference that the official cited reasons are not honest or that they are trying to hide something. However, the differences more logically lead to the inference that these different people felt different factors were more important than others. Their reasons are not contradictory. Individuals simply put more weight on some factors than others.

119It must be kept in mind that the Police Services Board made the ultimate decision. Its procedure and conduct were subjected to judicial review. Its decision was upheld. This Board of Inquiry will not re-examine the question of the procedural fairness before the Police Services Board. The evidence is that the Commissioners were presented with the recommendation for termination letter and all the documents filed on Mr. Daniels' behalf. The members of the Police Services Board heard representations recommending the termination of his services based on all the factors set out in the recommendation letter. They also heard a full and complete presentation from Sergeant Garchinsiki. They chose to adopt the recommendations and decided to “dispense with”? Mr. Daniels' services as a probationary constable. No reasons were given. The only witness called to speak for the Police Services Board was Vice-Chair Cott. She was a completely credible witness. She was adamant that race was not a factor in the Board reaching its decision. There is no reliable evidence that race was ever mentioned or discussed. No negative inference can be drawn against the Police Services Board.

120Even though the Police Services Board is legally responsible for the decision to dispense with Mr. Daniels' services, a violation of the Code would be declared if it was established that discrimination was a factor in his treatment by senior police force officials. It was suggested that the performance criticisms are merely a camouflage which attempted to hide the motivating factor of racism from the Police Services Board and from this Board of Inquiry. Part of the difficulty in this case arises because the respondent is relying on criticisms of performance during the first fourteen months of probation even though there is a recommendation for continued service after the fourteen-month mark.

121It is clear that the criticisms of Mr. Daniels' performance in the recommendation for termination (aside from the fitness issue) are based on issues that were condoned by the Police Force once he was recommended for continued service at the fourteen-month point. How could they later be used as justification for termination? Asking the question in that way leads to the answer that minor, condoned acts of misconduct cannot later be resurrected to justify a dismissal. But that is not the question that must be asked in this case. Here, we are dealing with a probationary police constable. His employment is not protected by the standards of “just cause”?. That was well established by the Blackburn and Niagara Region Board of Commissioners of Police decision, supra. Further, while the Human Rights Commission attacks the inaccuracies of the details of the alleged performance criticism, there was no dispute that the reasons in fact existed. It was only claimed that they should not form the basis of termination. Again, it must be recalled that this is not a review of a dismissal for just cause. It is an inquiry into a decision to dispense with the services of a probationary constable. Section 27(e) of the Regulations to the Police Act protects a probationary constable against arbitrary and discriminatory discipline or discharge. But it also grants a Police Services Board the right to dispense with a police constable, without a hearing. See Nicholson, supra. Probationary employees are not afforded the protections of just cause by the legislation or by the collective agreement applicable to the Hamilton-Wentworth Police Force. The appropriate question to be asked about probationary constables is whether they are adequate or suitable for the job. See Blackburn and Niagara Region Board of Commissioners of Police. Therefore, it is not appropriate to examine the reasons cited for performance concerns in light of the judicial or arbitral standards of just cause.

122The appropriate way to examine the performance concerns raised against Mark Daniels is in comparison to other probationary constables in the Hamilton-Wentworth Police Force. This could reveal differential treatment that would give rise to an inference of racism. Records of probationary constables employed in the five years prior to the Police Services Board hearing were made available to the Human Rights Commission and Mr. Daniels. The evidence adduced at the hearing reveals that many other probationary constables had performance problems, both at the Ontario Police College and during their probationary period. Many others also had deteriorating evaluations. Many of these were given assistance by having their training officers changed and/or by way of written or oral counselling. Constable Daniels was not offered a change of training officers. But this was adequately explained by the fact that he and his training officer enjoyed a good working relationship and there was never a need for a change. Evidence also shows that Mr. Daniels was given counselling. This was not disciplinary in nature, but corrective in intent. While Mr. Daniels may not have recognized it as counselling, the record does contain several documents that corroborate such counselling. Other probationary constables received similar treatment in similar circumstances. Therefore, Mr. Daniels did not receive unequal treatment with regard to his training officer or counselling.

123The records of other probationary constables also show many who achieved permanent status with significant performance difficulties, many of whom were worse than Constable Daniels. However, none of these probationary constables also faced allegations of misconduct against them, nor were they failing to achieve their physical fitness requirements. The records also show officers who failed their physical fitness test more than twice. But the records show that they passed their third attempt within the probationary time frame. There is no evidence that these were officers who also faced other allegations concerning performance or misconduct.

124The records also show that other probationary constables resigned or were terminated because of performance or fitness concerns. There appears to be a consistent pattern of probationary employees being made aware of serious performance concerns, being offered and then taking the option of resignation rather than facing proceedings before the Police Services Board. This happened in seven cases. One of these cases involved allegations of impropriety regarding an incident with a prostitute. There is also an example of the Police Services Board upholding the recommendation for termination of a probationary constable for failure to pass the physical fitness standards. There is no evidence of any other probationary constable facing allegations of deteriorating performance, lying to a supervisor, inappropriate conduct and the failure to meet fitness requirement. Simply put, there is no evidence of any other probationary constable in similar circumstances of Mr. Daniels being given different treatment. The evidence regarding treatment of permanent members of the Force has no relevance for purposes of this comparison. For all these reasons, it cannot be concluded the evidence establishes differential treatment of Mark Daniels.

125Another question that must be answered is whether there was an objective or rational basis for the decision to dispense with Mr. Daniels' services. Having put the performance concerns into perspective and recognizing that the Force need not prove just cause, each stated performance concern is not in and of itself very serious. But together, they combine to show a recruit with great potential, but significant under achievement. This is a factor that the Police Services Board is entitled to take into consideration. Probation is, by definition, a testing period to give an employer the opportunity to ascertain suitability as an employee. Suitability can include attaining certain standards of performance, character, judgment and anything else that an employer considers as related to the job to be done. A probationary employee is on trial during probation to prove his/her suitability as an employee. It is within an employer's right to release an employee who is not considered likely to meet the standards of performance required by the organization. See Brown and Beatty, Canadian Labour Arbitration, supra, at pp. 200–10. Therefore, while the performance criticisms may not justify a dismissal of a permanent employee, they were legitimate factors to consider in assessing the suitability of retaining a probationary constable to become a member of the permanent Police Force.

126Any look at Mr. Daniels' performance quickly brings us to an examination of his relationship with Mrs. Doe. It was that relationship which brought him to Superintendent Robertson's door and which Mr. Daniels lied about to the Superintendent. Despite any of the respondent's witnesses' refusal to acknowledge this, it was that relationship which clearly led to his termination. The evidence leads to the inescapable conclusion that had the relationship never come to the attention of senior management, they would not have recommended his termination unless he continued to be unable to meet the fitness requirements. Giving Mark Daniels the benefit of the doubt and assuming he would have passed his fitness test before the eighteen months were over, we must look closely at the relationship with Jane Doe. Does it provide an objective and justifiable reason for dispensing with his services or did the interracial nature of this relationship taint the respondent's decision?

127It is trite law that personal, off-duty conduct is of no business to an employer. It is also the law that off-duty conduct that would bring disrepute upon an employer is properly a matter of concern in an employment situation. See Constable Richard Ashby, supra, and Harrop and Markham Stouffville Hospital, supra. In the situation at hand we have a probationary police officer with previous police experience. He had never been explicitly told that he should not form a relationship with anyone he meets in the course of duty. His fellow officers at the Mountain Station knew or ought to have known that he was being pursued by a woman who was leaving him messages, notes and gifts. No warnings were offered to Mr. Daniels, even though the fact of his marriage must have been known to his peers. There is no evidence that they knew how he had come to meet Mrs. Doe. But there was enough evidence of her pursuit that someone could have warned him. Can he be faulted for succumbing to the temptations of human nature?

128If the circumstances were that he had met her while on routine traffic duty, the case would be harder. But he met her in the course of her husband's attempted suicide investigation. The attempted suicide occurred shortly after her attempts to leave the abusive relationship. There was an infant child of that marriage. Constable Daniels had enough facts before him to see that he was walking into a volatile family situation where the husband was using violence against himself and others in response to a fear of losing his family. Mr. Daniels did not seriously discourage the development of the relationship with Mrs. Doe. Despite Mr. Daniels' assertion that he tried to dissuade her, he also admits deceiving her about his own marital status from the outset and continuing to tell her lies. He did this while the investigation was still technically active, while she was still in the midst of coping with her difficult domestic situation and when he had no intention of pursuing the relationship because of his own wife and child at home. Whether she was “in a vulnerable emotional state”? was never clinically proven. Her own denial of vulnerability contained in an affidavit sworn months after the events carries little weight. What must be examined is the propriety of the respondent's personnel in considering Mrs. Doe as “vulnerable”? at the time. It must be concluded that it was very reasonable for police management to assume she was vulnerable under all the circumstances. It was also reasonable, on the basis of Mark Daniels' own admissions to management and the Professional Standards Branch, to conclude that he had misled her for his own personal purposes. She was in the midst of a domestic crisis. She was having to cope with a suicidal and abusive spouse. She was trying to separate from him. Constable Daniels lied to her about his marital status, his living arrangements and his police responsibilities. He lied to her about his decision to refrain from laying any charges. These lies enabled him to establish and sustain the relationship and then to deflect her from his home.

129The reason this becomes a legitimate matter of concern for the Police Force is not because he was pursuing an extra-marital relationship. The reason is exactly what was described by the Force's witnesses who spoke about the responsibilities of a police officer as a person in a position of authority and trust. These witnesses described the importance of giving victims of violence a sense of confidence and security when laying complaints or calling for help. Superintendent Robertson summed this up as follows:

The public has come to expect that when they call the police we recognize that vulnerability and cry for help. If these kinds of behaviour [Daniels'] were to be accepted by a few officers ... it impairs our ability, our credibility to respond to victims of abuse, victims of violence, victims of mental illness. In reality our whole ethical foundation is at stake.

130If people in the circumstance of Mrs. Doe, who are met by caring, compassionate and attentive police officers such as Constable Daniels, have to fear that they will be treated with anything less than the utmost honesty, victims will not turn to police forces for help in the future. If people in Mr. Doe's circumstances fear that their spouses will be won over by the officers who attend to crisis cases, greater violence could result. Mr. Daniels' lack of judgment was foolish and improper by his own admission. It resulted in cruelty to Mrs. Doe because he raised expectations in her that he could not meet. I am convinced that he had no desire to hurt her. But it must be concluded that his conduct brought disrepute upon the Hamilton-Wentworth Police Force because it would make potential victims of domestic violence fearful of their own vulnerability. Their lack of vulnerability cannot be presumed. Mr. Daniels' vehement denial of Mrs. Doe's vulnerability compounds his misconduct because it shows no real appreciation for the impropriety of his conduct and the difficult circumstances of Mrs. Doe.

131It is not acceptable for Mark Daniels or the Human Rights Commission to characterize the relationship with Jane Doe as purely personal and outside the business of the Police Force. He met her in the course of duty, he lied to her while the investigation was still technically open, he told her lies about his police record and responsibilities. He took advantage of a situation arising out of the course of his duties. All this brings disrepute upon the Police Force.

132Mr. Daniels claims that even if his conduct was wrong, he did not deserve to be terminated. Experts may debate whether conduct with a person met on the job, condoned by his peers at the time, while enlisted in a police force with no explicit policy should warrant discharge. But again, that is not the question to be asked in this case. The appropriate question is whether the circumstances of the relationship formed an objective basis for the Police Services Board to uphold the recommendation to dispense with his services as a probationary constable. Whether or not Mrs. Doe wanted to complain or whether she wanted any action taken, the respondent has a duty to the public to ensure that its police officers are honest, trustworthy and capable of exercising good judgment. When a probationary constable fails to display these essential qualities, s/he fails to meet the legitimate expectations of the employer. That would justify dispensing with his/her services. For all these reasons, it must be concluded that entering into the relationship with Mrs. Doe under the circumstances of their meeting and his conduct during that relationship constitute an objective and justifiable reason for a Police Services Board to decide that he would not be suitable as a member of the permanent force.

133Another factor which the Police Services Board was asked to consider was the “lie”? to Superintendent Robertson concerning how Constable Daniels met Mrs. Doe. The lie was not told in the course of duty. It was told in the midst of an informal conversation initiated by Constable Daniels who was seeking advice about how to complain about alleged racist behaviour by Canada Customs officials. Constable Daniels told a spontaneous lie, denying the truth of how he had met Mrs. Doe. But it is significant in two ways. The fact that Constable Daniels lied about how he met Mrs. Doe betrays his own knowledge of the impropriety of the relationship at the time. It exposes the weakness of his claims of innocence about the formation of their relationship. He must have recognized even then that senior officials would not accept him having a relationship with a person he had met in the course of duty, especially in circumstances like Mrs. Doe's. Secondly, honesty is an integral quality that a force must expect from a police officer. Concerns about a recruit's willingness to be honest at all times are serious concerns. Therefore, the lie to Superintendent Robertson must be found to be an objective and justifiable reason for deciding to release Constable Daniels.

134This still leaves open the question of whether race was in any way a factor in Mr. Daniels' case. There were certainly many circumstances that led Mr. Daniels to believe that race was a factor. His perception of unequal treatment has been answered. There is no objective foundation for such a perception. His record, compared to other probationary constables, does not indicate unequal treatment. His criticism of the inaccuracies in the termination letter have some validity. Many of the details can be attacked. But they were addressed thoroughly and answered by Sergeant Garchinsiki at the proceedings before the Police Services Board. Further, Mr. Daniels did not dispute the substance of the allegations concerning performance criticisms. Finally, the criticisms fall within the bounds of proper consideration regarding the continuation of service of a probationary employee. Therefore, it cannot now be said that the inaccuracies clouded the results before the Police Services Board or led to an inference of improper motive.

135The haste with which the Police Services Board hearing was convened was also said to suggest improper motives. But the respondent's witnesses were forthright in admitting that it was their clear desire to convene the proceedings and have the matter determined within the probationary period. They admit that this gave the Force greater unreviewable discretion and would limit Mr. Daniels' options or defences. They did this precisely for that purpose because the senior officials had decided that they no longer wanted Mr. Daniels on the Force and they did not want to go through the rigorous requirements of a full hearing under the Police Services Act which would have been required if Mr. Daniels attained permanent status. The decision to convene the proceedings during his probationary status was within the legitimate rights of the Police Services Board. See Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police, supra, pp. 682–83:

In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to respond. The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination. Once it had the appellant's response, it would be for the Board to decide on what action to take, without its decision being reviewable elsewhere, always premising good faith. Such a course provides fairness to the appellant and it is fair as well to the Board's right, as a public authority to decide, once it had the appellant's response, whether a person in his position should be allowed to continue in office to the point where his right to procedural protection was enlarged. Status in office deserves this minimal protection, however brief the period for which the office is held.

136The scheduling of the meeting could have worked a potential hardship on Mr. Daniels as he and his representative quickly tried to prepare themselves for the inconvenient attendance before the Police Services Board. But Sergeant Garchinsiki was able to rearrange his other commitments and prepare for the presentation. Mr. Daniels admits that everything necessary that needed to be said or filed on his behalf was done during that proceeding. Sergeant Garchinsiki deserves great credit for that. Therefore, it cannot be said that any actual harm resulted or that improper motivations can be inferred. The Police Services Board acted completely within its rights to convene the proceedings during the probationary period.

137One of the most troubling aspects with the respondent's case concerns the second conversation between Superintendent Robertson and Mr. Daniels. It is to be recalled that the subject of resignation came up between them. Superintendent Robertson admits raising the fact that other police forces were recruiting visible minorities. He suggested that Constable Daniels would be better off resigning and going to another force. As Mr. Daniels asserted, “My race should have had absolutely no relevance. He should just say to me ”˜Look, I think you should resign', resign and that's it”?. Mr. Daniels is correct. By raising Mr. Daniels' race at that sensitive time, Superintendent Robertson gave life to Mr. Daniels' suspicion that he was facing dismissal for racially motivated reasons. On the other hand, Mr. Daniels admits that there was truth in what Superintendent Robertson was saying. Police forces in Ontario were actively recruiting visible minority constables. Also, it must be recalled that the Force has consistently encouraged other probationary constables to resign rather than face proceedings before the Police Services Board. In light of these factors, the distasteful comment loses its suspicious undertones. In addition, the fact that Constable Daniels chose to approach Superintendent Robertson for advice at that point also suggests that the Superintendent's version of their first discussion is more credible. Why would Constable Daniels go to the Superintendent for advice if the Superintendent had been threatening and yelling as Mr. Daniels alleged? Therefore, the Superintendent's evidence is preferred to that of Mr. Daniels.

138A Board of Inquiry must look at the relevant evidence as a whole. The Human Rights Commission and Mr. Daniels have asked that inferences of racism should be drawn from conduct. It need only be shown that racism is a proximate or contributing factor. The evidence supports the findings that the respondent reacted within its legislative rights, did not lack an objective basis upon which to justify its decision and did not treat Mark Daniels differently than other probationary constables. It is clear that he could have been treated with more sensitivity. Another police force may even have treated him more leniently. Better adherence to its own procedures would not have made the respondent vulnerable to many of the criticisms contained in this complaint. But the evidence does not lead to a sustainable inference of racism. The evidence discloses that objectively justifiable considerations formed the basis of the decision to dispense with his services.

139Hindsight is perfect. This situation could easily have been prevented. If Mark Daniels had been warned to ignore Mrs. Doe's attentions or if he had exercised his own sense of good judgment, he probably would have succeeded in passing through his probationary period. If the respondent had been more forthright in attributing the relationship as the cause to release him from the service, the record would have been less confusing. If the Police Services Board had answered the January 1991 specific allegations of discrimination raised after the fact, some confusion and suspicion could have been dispelled. But this Board of Inquiry has examined all these issues thoroughly. The result has been that discrimination has not been established, nor can it be inferred from the totality of relevant evidence. More regrettably, a promising police career was destroyed by a young man's own impulsiveness and poor judgment.

140For all these reasons the complaint is dismissed. I retain jurisdiction to deal with the respondent's request for costs against the Human Rights Commission should it be decided to pursue this claim.

141The respondent has thirty days from the date of this award to advise if a claim for costs will be pursued. If no notification is received the respondent will be deemed to have withdrawn the request for costs.