ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

PROVINCIAL CONSTABLE A.H. HOWAT

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Ruth Corbett, Member Julio Menezes, Member

Hearing Date: February 9, l990

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, Ontario M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca

Presiding Members: Ruth Corbett, Member Julio Menezes, Member

Appearances: W. Michael Temple, Q.C. for the Appellant Dennis Brown, Q.C. for the Respondent Larry Chartrand, Student-at-Law Inspector John B. Mitchell

Hearing Date: February 9, l990

1. Provincial Constable Howat was charged with two charges of discreditable conduct.

1. CHARGES: First Charge Sheet: Provincial Constable Howat was charged with two counts of discreditable conduct(minor) for acting in a manner prejudicial to disciplineor likely to bring discredit on the Force contrary toSection l(a)(i) of the Code of Offences, Regulation 79l,Sched., Police Act, R.S.O. l980, c.38l.

Second Charge Sheet: Provincial Constable Howat was charged with four counts of discreditable conduct (major)for acting in a manner prejudicial to discipline orlikely to bring discredit on the Force contrary toSection l(a)(i) of the Code of Offences, Regulation 79l,Sched., Police Act, R.S.O. l980, c.38l.

2. PARTICULARS:

First Charge Sheet: While posted at Grand Bend detachment between May l7th and June 30th, l988, Provincial Constable Howat made sexual and insulting comments toward:

Count #l: Police Woman M.J. Vink. Count #2: Police Woman K.M. Lyons. These comments were known or should have been known to be inappropriate and unwelcome.

Second Charge Sheet: Counts #3-6: On four occasions during the months of May and June l988 Provincial Constable Howat made unwelcome sexual advances toward four different women while off duty at the FountainbleuMotel in Grand Bend.

Circumstances of the Case:

2. Through most of the year Grand Bend is a fairlysmall community on the shores of Lake Huron. It is a resort town. As a consequence during the summer months the population of Grand Bend swells to several times that of thepermanent residents. To provide adequate policing servicesduring these peak tourist months, the Ontario ProvincialPolice draws officers from permanent detachments and stationsthem temporarily in Grand Bend.

3. While in Grand Bend the officers stayed at theFountainbleu Motel. The motel served as a home away fromhome for the officers on the temporary assignment. The officers prepared meals, ate and enjoyed leisure activitiestogether. In total the circumstances were different from those of permanent detachments.

4. Police Constable Howat was one of approximately 20officers temporarily posted to Grand Bend in the summer ofl988. The events giving rise to the charge arose during twomonths, May and June, l988. Virtually all of the incidentsin question occurred at the Fountainbleu Motel. Police Constable Howat was asked to leave the detachment on June 30th, l988. The charges were laid in September of l988.

Appeal against Conviction on Charge Sheet #l:

5. The grounds of appeal are:

(i) The Appellant's comments were not made to the twopolice officers.

(ii) That the hearing officer erred in not taking intoaccount the unusual off-duty atmosphere of the hotel.

6. The fundamental questions that are at the heart ofthe two counts on the first charge sheet were whether or notthe statements of Provincial Constable Howat constituted discreditable conduct, and whether or not he was givensufficient particulars of the charge to be able to present adefence.

7. It is clear to us that Provincial Constable Howat was in a position to understand the charges being laidagainst him. His choice of a way of defending himselfindicates that he was well aware of the nature of the allegations. The tactical line he chose was to either suggest strange reasons for making sexist comments to Provincial Constable Vink and Provincial Constable Lyon or toconcoct somewhat far-fetched idiosyncratic use of local idiomto give his comments a non-sexist meaning. The HearingOfficer was correct in concluding that the comments were aharassment to the policewomen. Provincial Constable Howat had actual indication that his comments were embarrassing tothe two individuals and other members of the Force who happened to be within hearing distance. Provincial Constable Vink made her feelings explicit. Provincial Constable Howat persisted notwithstanding. Provincial Constable Lyon'sembarrassment was visible if not stated orally.

8. The Hearing Officer did take into account thespecial relaxed atmosphere of the living arrangements atGrand Bend. The contention that the particular circumstanceswould forgive Provincial Constable Howat's behaviour does notpersuade us. If the acceptable level of behaviour incircumstances that were described as "party atmosphere" is tobe set by an individual like Provincial Constable Howat whoappeared to try to distinguish himself by his persistentcrude and lewd comments, the Ontario Provincial Police wouldbe in a position of requiring its officers to endure theharassment and humiliation experienced by Provincial Constable Howat's colleagues. We endorse fully the HearingOfficer's conclusion that this is totally unacceptable.

9. Provincial Constable Howat's appeal against theconviction on the two counts on Charge Sheet #l is dismissed.

10. Provincial Constable Howat did not appeal againstthe sentence imposed for the convictions on Charge Sheet #l.

Charge Sheet #2:

The grounds of appeal are:

(i) That in each of the counts the Appellant's actions weremisinterpreted to be sexual.

(ii) That they occurred in the unusual off-duty atmosphereof the Fountainbleu Motel.

11. On each of the counts we would agree with theHearing Officer's conclusion that "the evidence againstProvincial Constable Howat is and his explanations flimsy and incredible at best". overwhelmingIf anything,that conclusion represents an understatement. Provincial Constable Howat's attempt to put a different spin on hiswords and actions were largely preposterous.

Count #l:

12. The testimony of the victim, Ms. Joanna Mary Ferry,was to the effect that Provincial Constable Howat physicallyheld her around the waist and pulled her down onto his lap.She testified to her sense of outrage and her response inslapping Provincial Constable Howat's face. Another officer,Provincial Constable Ticknor corroborated this evidence. Provincial Constable Howat's version of the incident was that he helped her to prevent her from falling. The testimony He had no recollection of having had his face slapped.of his friend Ms. Glover attempted to exonerate ProvincialConstable Howat. Her recollection of the incident appears tobe somewhat flawed because she contradicted Provincial Constable Howat as to the words spoken before the physicalcontact.

Count #2:

13. Again there was direct conflict between the testimony of the victim and of a witness Ms. Linda Wilson onthe one hand and Provincial Constable Howat's explanation ofhis recollections on the other. Ms. Krauskoff's testimonywas to the fact that the Appellant pulled down the front ofhis sweatpants and made a crude sexual comment which embarrassed her. Ms. Wilson witnessed the pulling of thesweatpants and the embarrassed look on her friend's face.Provincial Constable Howat's version is that he was tuckingin the front of his shirt, and the comment was an invitationto have a hamburger.

Count #3:

14. Ms. Cynthia Lorraine DaPaepe was involved in thethird incident. She testified that Provincial Constable Howat came over to a bed on which she was sitting in a motelroom with a number of other people. He used the weight ofhis body to push her back on the bed until he was lying ontop of her. He then made a sexist comment. Provincial Constable Howat's version was that he wanted to cheer up Ms.DaPaepe and wanted to communicate his mood changing greetingas privately as possible!

Count #4:

15. The victim in the fourth incident, Ms. Linda A.Wilson testified that Provincial Constable Howat had entered a motel room in which she and her friend were changing, hadpulled down the front of her sweater and had made a lewdcomment. The victim's friend, Ms. Krauskoff, corroboratedthe evidence. Provincial Constable Howat did not attempt toconcoct a fable for this particular incident. He merelydenied being in the room and having any recollection of the events.

16. Provincial Constable Howat's appeal against hisconviction on each of these counts is dismissed.

Penalty Charge Sheet #2:

17. The basis of the appeal against the sentence isthat the sentence is too harsh in light of the circumstances.

18. The incidents complained of all occurred within a relativelyshort span of time and the penalty imposed is one of theharshest available.

19. The Hearing Officer was of the belief that whilethe evidence of Dr. George H. Stone might provide someexplanation of the Appellant's behaviour it did not excuseit. Dr. Stone, of necessity, could only speculate on thereasons for Police Constable Howat's aberrational behaviour.

20. Some of the speculation, particularly with respect to themanner and mores of the people of Northern Ontario weresingularly unhelpful and gratuitous. We feel, however, thatsome significance should be attached to the fact that PoliceConstable Howat did in fact initiate the process of rehabilitation by seeing Dr. Stone in March of l988 withrespect to his personal problems. He further went back to Dr. Stone in August, prior to the laying of charges. We do not feel that the Sentencing Officer gave adequate weight tothis ambition to rehabilitate himself.

21. The approach taken to the testimony of Dr. Stonewas to see whether or not it could provide an excuse forPolice Constable Howat's actions. We agree that there is aneed to make it clear and unequivocal that behaviour of thekind displayed by Police Constable Howat will not be tolerated on the Force. It is nevertheless important torecognize that while the public expects a certain standard ofbehaviour from members of the police service that on questions of sentencing a range of issues have to be addressed. These include the ability of the police officerto seek appropriate help and benefit from it. A balancingmust be struck between the need to indicate the attitude of the Ontario Provincial Police in relation to unacceptablesexist behaviour on the one hand and concern for the particular emotional state of the individual officer. Given the circumstances at the time of these incidents we think the sentence was too harsh. A better balance will be achieved if Police Constable Howat is reduced in rank to a Constable IV Class.

22. Accordingly, we allow the appeal from penalty,quash the penalty imposed by the Hearing Officer and orderthat Police Constable Howat be reduced in rank from First Class Constable to Fourth Class Constable.

DATED THIS 16TH DAY OF MARCH, 1990.

Julio Menezes, Member

Ruth Corbett, Member

per W.D. Drinkwalter, Q.C., Chairman