ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE GORDON TRUMBLEY AND

CONSTABLE RODNEY PUGH

Appellants

-and-

METROPOLITAN TORONTO POLICE FORCE

Respondent

DECISION

Panel: W.D. Drinkwalter, Q.C., Chairman

Ruth K. Corbett, Member

Julio Menezes, Member

Hearing Date: May l-2, l99l

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:

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

Ruth K. Corbett, Member

Julio Menezes, Member

Appearances:

Douglas Quirt for Constable Pugh

Edward Spong for Constable Trumbley

Paul Jarvis for the Chief of Police

George Monteith for the Board of Commissioners of Police (as

it then was)

Superintendent John Addison, Prosecuting Officer

Hearing Dates: May l-2, l99l

1. Constables Trumbley and Pugh were charged with the same offence in separate Charge Sheets. The wording of the Charge Sheets is the same except for the modification noted below.

Each is charged as follows:

2. "You stand charged with discreditable conduct that you did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Police Force, contrary to Section l(a)(i) of the Schedule Code of Offences of Ontario, Regulation 79l/80 made in pursuance of the Police Act of Ontario and did thereby commit a major offence."

Statement of Particulars:

3. "Being a member of the Metropolitan Toronto Police Force attached to Number 55 Division, you, on Wednesday February 8th, l984, were working the first relief from ll:00 p.m. Tuesday, February 7, l984 to 7:00 a.m. February 8, l984, assigned to scout car 5508 along with Police Constable (name and number of the other accused officer). At about ll:40 p.m. on Tuesday, February 7, l984, you investigated a female citizen on Queen Street East, near to Grant Street, who identified herself as Robin Gardner, age 20 years. You escorted her to Walpole House, 295 Sherbourne Street relative to overnight accommodation, resulting in the said female refusing to stay there. On leaving the location at 295 Sherbourne Street, you had further contact with the said female, resulting in you having sexual intercourse with her in scout car 5508 on Wednesday, February 8, l984. Your actions were such that they were likely to bring discredit upon the reputation of the Police Force."

4. The trial commenced with a series of preliminary motions and then adjourned. During the adjournments the appellants applied to the Divisional Court for Judicial Review with respect to the Hearing Officer's rulings on the preliminary motions. Following the decision of the Divisional Court the appellants appealed to the Ontario Court of Appeal and then to the Supreme Court of Canada.

5. The trial got underway in l989 following the decision of the Supreme Court of Canada. The officers were found guilty and ordered to resign or, in default of resigning within seven days, to be summarily dismissed. The finding of guilt and the penalty were confirmed by the Chief of Police on the 26th of June l989.

6. The officers appealed to the Board of Commissioners of Police (as it then was). Their appeals were dismissed and they have now appealed to the Ontario Civilian Commission on Police Services (formerly the Ontario Police Commission).

The Facts:

7. Messrs. Pugh and Trumbley were First Class Constables with the Metropolitan Toronto Police Force. On the night of February 7/8, l984 they were in uniform on patrol together in a marked scout car. Some time during the night they encountered Robin Voce, a 20-year old female. Voce was in some distress. She had been consuming alcohol to some significant degree; it apparently caused some memory loss with respect to some of the events of the night in question. The police officers took Voce to a hostel but she refused to stay there. They spent some more time with her and eventually took her into an underground parking garage where each police officer had sexual intercourse with her in the patrol car. Following this they took her to another hostel where she remained overnight.

The Appeal:

8. The appellants appealed both the finding of guilt and the penalty imposed. On the finding of guilt the appellants essentially argued three issues:

9. That the matter was in fact a public complaint and ought to have been handled in accordance with the Public Complaints Legislation. If the matter is a public complaint, certain rights flow to the accused officers; most notably they are entitled to have the allegations proven "beyond a reasonable doubt" rather than to the civil standard. The Trials Officer made it clear that he was applying a high standard of proof but did not go so far as to say that he was satisfied beyond a reasonable doubt. In addition, if the matter is a public complaint, there are other rights dealing with the admissibility of evidence and disclosure before the hearing.

10. The appellants argued that the disciplinary provisions of the Police Act contravene the equality rights spelled out in Section l5 of the Charter of Rights and Freedoms in that a charge of misconduct brought as a normal disciplinary matter requires proof on a balance of probabilities but if the same charge results from a public complaint proof beyond a reasonable doubt is mandated.

11. The appellants next argued with respect to the

admissibility of two pieces of evidence. The first is a

recording of a telephone conversation between Constable

Trumbley and Robin Voce (the alleged victim). The second

is a recorded conversation between Constable Pugh and Robin Voce which was obtained by means of a "body pack". It is argued that this method of gathering evidence contravenes Section 8 of the Charter of Rights and Freedoms as an unreasonable search or seizure.

4. Finally, the appellants argue that the penalty of being

ordered to resign or be summarily dismissed is

inappropriate and that the appropriate penalty is one of

reduction in gradation of rank.

A Public Complaint?:

9. The Public Complaints legislation began with the Metropolitan Police Force Complaints Project Act, l98l. That Statute was repealed and replaced by the Metropolitan Toronto Police Force Complaints Act l984 which in turn was repealed and replaced by Part VI of the Police Services Act which was proclaimed December 3lst, l990. The Statute in effect at the time of these events is the l98l Act.

In the l98l Act a complaint is defined as follows:

"Complaint" means a complaint by a member of the

public, made orally or in writing, respecting the

conduct of a police officer;"

10. It is noteworthy that to be a "complaint" an allegation must be made "by a member of the public". The legislation does not provide that "any person" may make a complaint, but the complaint must be made by a member of the public. By using these words the legislator must have intended to exclude certain persons from the classification of "complainant". It is commonly accepted that a complaint made by another police officer, for example, is not a "public complaint" and is to be handled in accordance with the normal disciplinary procedures of the Police Act.

11. The appellants argue that in this case a complaint was made by one Percy Parks.

12. Robin Voce went to the hospital on February 8th, l984 for an examination, alleging that she had been raped by two police officers. In the normal course of events the hospital would have notified the police force. The hospital also wanted a rape investigation kit which kits are normally provided to hospitals by the police. The people at the hospital had some hesitancy in advising the police of the allegations because the suspects were police officers and they did not want to have the suspects assigned to investigate the alleged rape. For this reason the hospital officials consulted one of their senior security persons, a man by the name of Percy Parks. Mr. Parks had been a member of the Ontario Provincial Police for some years and was familiar with police procedures and knew many police officers. It was Mr. Parks who called the Metropolitan Toronto Police Force and passed on the information provided to the people at the hospital by Robin Voce.

13. In our opinion this was not a public complaint within the meaning of the Public Complaints legislation.

14. The following quotations are from the cross examination of Percy Parks and appear at Page 936 of Volume 3 of the Transcript. The "Atkinson" referred to therein is a man who was a friend of Robin Voce and was at the hospital with her:

Q: "Ok. You, as a member of the public, contacted the police to complain about this alleged activity of these two officers."

A: "Well, I, I don't know whether I'd term it that way. I called the police because I knew there was a dilemma where the hospital didn't know what to do and I thought someone should be advised because of some of the allegations that Mr. Atkinson was making."

Q: "Can you tell us which officer in the police

force you phoned in order to tell them about

this incident?"

A: Well, I phoned, Mr. Atkinson, if I recall

correctly, was complaining about, you know,

coverups, etc., etc., which I tried to assure

wouldn't happen and he was going on and the

hospital's my client and they wanted to get

on with their business and get this out of

the way so I said would you agree if I call

in someone senior in the police department

that I know. And they agreed with that, so I

phoned Superintendent Don Banks, his office."

15. In fact, Mr. Parks was not successful in reaching Superintendent Banks and he spoke with Inspector Sterling.

16. Our reason for believing that this matter cannot be characterized as a public complaint is that we believe that Mr. Parks was not a "member of the public" within the meaning of the Complaints Act. Mr. Parks phoned the police, not as a private citizen making a complaint, but as an employee of the hospital performing what he believed to be his duty as a member of the hospital staff. He believed that he was fulfilling an obligation of the hospital to pass on to the police information that had been provided by a patient. We are satisfied that Mr. Parks was acting on behalf of the hospital and not in his personal capacity as a "member of the public".

17. The appellants argue further that they were denied certain rights which are provided by Section l9 of the Metropolitan Police Force Complaints Act, l98l. The application of these rights is triggered only if the matter is properly characterized as a "public complaint". Failing that, in order to be successful, the appellants must establish that the denial of these rights amounts to a denial of natural justice.

18. The appellants argue that they were denied disclosure of certain documents which disclosure is mandated by Section l9(4) of the Complaints Act. The fact is the appellants were given a list of documents which the prosecution intended to produce. While they were not given copies of the documents, in fact they did not ask for copies and accordingly one cannot find that disclosure was refused.

19. Similarly the appellants complain about the nondisclosure of the identity of a witness. The existence of this witness did not become known to the prosecutor until her name was mentioned in evidence by one of the investigating officers. The investigators had previously interviewed this person and determined that her evidence would add nothing and accordingly she was not considered to be a "witness". After her name was mentioned in evidence it was printed in a local newspaper. Following that, the woman in question phoned the police and they, in turn, referred her to defence counsel. She did in fact speak with defence counsel. This is the sort of unfortunate surprise occurrence that happens from time to time. While it is unfortunate, any potential damage can be cured by an adjournment to provide counsel an opportunity to interview the potential witness and take such other steps as may be advisable by way of preparation.

20. The appellants further argue that Subsection l0 of Section l9 prohibits the use of "any statement or answer required to be given by him in respect of the complaint ...". The appellants argue that the officers' memo books fall within the meaning of Subsection l0. Even if we held that the Complaints Act were applicable to this trial, this argument would not advance the appellants' positions. Subsection l0, in our view, very clearly applies only to statements which are required in connection with the investigation of the complaint. This section does not touch upon notes or records or statements that officers are required to make in the ordinary course of their duties aspolice officers. The officers' notebooks in this case are quite beyond the scope of the Subsection.

21. This branch of the case put forward by the appellants falls far short of establishing any denial of natural justice.

The appeals fail on this ground.

Section l5 of the Charter:

22. The appellants argue that their rights to equal protection and equal benefit of the law under Section l5 of the Charter of Rights and Freedoms have been infringed because they faced trial under the Police Act and procedures applicable to disciplinary proceedings. They argue that had they been disciplined as a result of a public complaint, they would have been entitled to certain additional right enumerated in Section l9 of the Complaints Act. The most significant of these is the right to have the case proven beyond a reasonable doubt whereas under the normal disciplinary process the case must be proven on a balance of probabilities, the civil burden of proof.

23. The first step to making an argument with respect to Section l5 is that a personal attribute of the complainant was the basis of unfair discrimination inherent in some legislation or its application. Such an argument is different from an assertion that a statutory power contravened an applicable statute. No distinction is drawn among members of the Metropolitan Toronto Police Force by either the Metropolitan Police Force Complaints Act (l98l) or the Police Act. The only route to Section l5 of the Charter that remains is an allegation that the choice between available procedures was made with a bias against each officer because of the race, colour, religion, or such, of the appellant. No such allegation has been asserted at this hearing or in previous proceedings.

24. The Charter of Rights and Freedoms was proclaimed in April l982. By Section 32 of the Charter, Section l5 became operative as of April l985.

Section l5 of the Charter provides:

l5(l) "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

25. In a trilogy of cases the Supreme Court of Canada has defined the equality rights under Section l5 of the Charter as applying only to the enumerated grounds and grounds that are analogous to those enumerated.

26. The cases to which we refer are Andrews vs. Law Society of British Columbia (l989), 56 D.L.R. (4th)l, [l989] l S.C.R. l43; reference re Workers Compensation Act, l983(Nfld.) 1989 CanLII 86 (SCC), 56 D.L.R. (4th) 765, [l989] l S.C.R. 922; and R. vs. Turpin 1989 CanLII 98 (SCC), 48 C.C.C. (3rd) 8, 69 C.R. (3rd) 97.

27. In Andrews McIntyre J. describes Section l5 in the following words:

"Section l5(l) is designed to prevent

discrimination based on these (the enumerated

grounds) and analogous grounds. The approach is

similar to that found in Human Rights and Civil

Rights Statutes which have been enacted throughout

Canada in recent times."

28. Mr. Justice McIntyre recognized the obvious fact that governments and legislatures must make distinctions and treat groups differently. He said:

"It is not every distinction nor differentiation in treatment at law which will transgress the equality guarantees of Section l5 of the Charter. It is, of course, obvious that legislators may - and to govern effectively - must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislators."

29. In Turpin the court rejected the claim of a person charged with murder in Ontario that his equality rights under Section l5 were infringed because he did not have the same opportunity as a person charged in Alberta to be tried by judge without a jury. Wilson J. expressed the view in these words:

"Differentiating for mode of trial purposes between

those accused of Section 427 offences in Alberta

and those accused of the same offences elsewhere in

Canada would not, in my view, advance the purposes

of Section l5 in remedying or preventing

discrimination against groups suffering social,

political and legal disadvantage in our society. A

search for indicia of discrimination such as

stereotyping, historical disadvantage or

vulnerability to political and social prejudice

would be fruitless in this case because what we are

comparing is the position of those accused of the

offences listed in Section 427 in the rest of

Canada to the position of those accused of offences

listed in Section 427 in Alberta.

30. The alleged discrimination put before us by the appellants does not fall within any of the enumerated grounds nor any analogous ground. In our view there has been no infringemnt of Section l5 of the Charter and the appeals fail on this ground.

Admissibility of Evidence:

31. The trial stretched over several days; the Transcript is in excess of 2600 pages.

32. In summing up and rendering his decision, the Trials Officer makes it clear, at Page 2527 of the Transcript, that he relies very heavily on four pieces of evidence. He said "I'm going to depend a great deal on four items of evidence and I feel that these are the crucial bits of information that will enable me to render my decision in Judgement." It is obvious from reading the judgement that it depends upon these four pieces of evidence. They are: The testimony of Constable Pugh (Constable Trumbley did not testify); the oral testimony of Robin Voce; taped telephone conversation between Trumbley and Voce; body pack taped conversation between Pugh and Voce.

33. It is argued by the appellants that the obtaining of the taped conversations was an infringement of Section 8 of the Charter of Rights and Freedoms.

34. At trial the Hearing Officer admitted the evidence, in effect, on the instruction of the Divisional Court.

35. In January l990 the Supreme Court of Canada released two decisions dealing with the question whether electronically intercepted private communications, intercepted with the consent of the originator or of the person intended by the originator to receive them breached

36. Section 8 of the Charter of Rights and Freedoms. Section 8 provides:

37. "Everyone has the right to be secure against unreasonable search and seizure."

38. The cases in question are: Duarte vs. The Queen 1990 CanLII 150 (SCC), 65 D.L.R. (4th) 240 and Wiggins vs. The Queen. Both of these cases dealt with criminal investigations related to narcotics offences. The court characterized the recording of conversations with the consent of one of the participants as "participant surveillance". It is to be noted that in both of these cases the investigation was conducted on behalf of the State for the purpose of criminal prosecution.

39. Our discussion of the Section 8 argument, which was very well presented to us by counsel for each of the parties to this hearing, is not intended to call into question the applicability of the decision by the Ontario Divisional Court. Clearly the Hearing Officer, the Metropolitan Toronto Board of Commissioners of Police (now the Metropolitan Toronto Police Services Board) and this panel, had no choice but to abide by a ruling made on this very case.

40. If the Ontario Civilian Commission on Police Services were free to, in effect, set aside a decision of the Ontario Divisional Court in favour of the rulings in either Duarte or Wiggins we would not choose to do so. The principles set out in Duarte are distinguishable from those that apply to this appeal and, in addition, Wiggins was decided on significantly different facts.

41. It is abundantly clear that Duarte rests on the analysis of Section 8 set out by Dickson J. (as he then was) in Hunter vs. Southam Inc. (l984), ll D.L.R. (4th) 64l. One can begin with a perspective on the Charter. "The interpretations should be, as the judgement in Southam emphasizes, a generous rather than a legalistic one, aimed at securing for individuals the full benefit of the Charter's protection." Dickson J. in R. vs. Big M. Drug Mart Ltd. (l985), l8 D.L.R. (4th) 32l at 359. In Southam the Supreme Court of Canada identified the central underlying purpose of Section 8 as the protection of personal privacy against intrusion by the government. Therefore Section 8 requires an assessment that "must focus on its [the search and seizure] 'reasonable' or 'unreasonable' impact on the subject of the search or seizure, and not simply on its rationality in furthering some valid government objective". (P. 650 quoted in Duarte at P. 252.)

42. Transposed literally to the circumstances of this appeal it requires gauging if electronic interception of the words spoken by each of the appellants to Ms. Voce were constitutionally reasonable. Were we to do that we would be losing track of the purpose of Section 8. Close to midnight on 7 February, l984, two uniformed male police officers, in a police vehicle, make contact with a 20-year old female, on her own. She was not in any way personally related to them. Both officers had sexual relations with this civilian with whom they have initiated contact. Subsequently, each officer had a conversation with the young lady in question Robin Voce, relating to the encounter of 8 February. We are of the firm view that on these facts we are not dealing with the state (in the form of the officers investigating Ms. Voce's allegations) intruding on Charter protected sphere of privacy. It is the state policing itself.

43. Obviously the state can only act through individuals. Among the classes of individuals exercising state power, sworn polie officers must rank very high in terms of the power vested in them. In interdicting certain activities -- arrest without reasonable or probable grounds, even failure to follow certain procedures in recording the police officers actions -- the Code of Conduct under the Police Act is going in the same direction in protecting the privacy of individuals as the Charter, albeit at a less rarified and abstract level. The concern in this situation is not that the officers misused the property of their employer but that they misused their status as constables. We cannot accept that police officers who initiate contact with a citizen in a professional capacity can, (at their convenience) insist that the interaction blossomed, with great rapidity, to social relations between equals. They may wish to have a cocoon of privacy, but they are not entitled to the belief that they enjoyed one.

44. Investigations of a crime are distinguishable from disciplinary investigations of improper conduct with respect to an individual's status as a police officer. Conviction for a crime can lead to forfeiting constitutionally protected rights. The rights forfeited under the disciplinary procedures are at times economic -- which are not afforded special Charter protection - but at the extreme, loss of the very special powers granted to a police officer by being removed from the Force.

45. The trial had commenced with a series of preliminary motions and then it adjourned to permit the appellants to challenge the rulings on those motions in the Divisional Court. In its decision, (l984) 5 O.A.C. 368 the Divisional Court dealt with the admissibility of the evidence obtained by electronic interception. Part VI of the Criminal Code deals with electronic interception of private communications.

46. Such interceptions are prohibited unless the interceptor obtains an "authorization". There is an exception made with respect to communications that are intercepted with the consent "of the originator of the private communication or of the person intended by the originator thereof to receive it". This is provided in Section l78.ll(2)(a) (now Section l84(2)(a).

47. In dealing with the applicability of the rules in the Criminal Code Mr. Justice Galligan said "obviously, that part of the Criminal Code of Canada applies to proceedings over which Parliament of Canada has jurisdiction, but we do not see how that part of the Criminal Code can apply to disciplinary proceedings under this Provincial Statute."

48. The court pointed out that the evidence contained in such recordings "was admissible at common law in both civil and criminal proceedings" prior to the enactment of Part IV.l of the Criminal Code (now Part VI). The conclusion of the court was expressed in these words:

49. "Since the evidence was admissible at common law and there is nothing in the law of evidence of Ontario which renders it inadmissible in this type of proceeding, it is our opinion that such evidence is clearly admissible."

50. In the Duarte decision the court found that participant surveillance conducted by an instrumentality of the state breaches Section 8 of the Charter. Notwithstanding that finding, the court admitted the evidence. In admitting the evidence La Forest J. expressed the decision of the court in the following words:

"Of cardinal importance in assessing these factors is the fairness of the process, and, in particular, its impact on the fairness of the trial. Undoubtedly, the breach infringed an important Charter Right, and the evidence could have been obtained without breaching the Charter. But what strikes one here is that the breach was in no way deliberate, willful or flagrant. The police officers acted entirely in good faith. They were acting in accordance with what they had good reason to believe was the law as it had been for many years before the advent of the Charter. The reasonableness of their action is underscored by the seriousness of the offence. They had reasonable and probable cause to believe the offence had been committed, and had they properly understood the law, they could have obtained an authorization under the Code to intercept the communication. Indeed, they could have proceeded without resorting to electronic surveillance and relied solely on the evidence of the undercover officer or the informer. In short, the Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event. Under these circumstances I hold that the appellant has not established that the admission of theevidence would bring the administration of justice into disrepute."

50. In the case before us the officers were acting in much the same way as those in the Duarte decision. They had every reason to believe that they were acting properly and appropriately and lawfully.

51. The Duarte rule applies to participant surveillance by or on behalf of an instrumality of the state. It is not clear to us whether the investigators in this case can be said to be acting as an instrumality of the state or whether their activities can be characterized as the activities of an employer investigating alleged misconduct of an employee. In our view the evidence in this case is admissible because the officers were acting entirely in good faith. Sinceparticipant surveillance had been used for many years and was generally believed to be lawful, they could not have been expected to act otherwise.

52. This tribunal, does not constitute a "court ofcompetent jurisdiction" within the meaning of Section 24 of the Charter and accordingly we could not, in any event, rule the evidence inadmissible by way of providing a remedy for a breach of a Charter Right.

53. Evidence in Proceedings such as those here in issue is governed by Section l5 of the Statutory Powers Procedure Act R.S.O. l980 Ch. 484 which provides:

l5(l) "Subject to Subsections 2 and 3 a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) Any oral testimony; and

(b) Any document or other thing, relevant to the subject matter of the Proceedings and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissibl in a court by reason of any privilege under th law of evidence; or

(b) that is inadmissible be the statute under which the proceedings arise on any other statute.

(3) Nothing in Subsection (l) overrides the provisions of any Act expressl limiting the extent to or purpose for which any oral testimony, documents or things may be admitted or used in evidence in any proceedings."

54. In our opinion the evidence was properly admitted and the appeal fails on this ground.

55. For the above reasons the appeals from conviction fail.

Penalty:

56. Both appellants appeal from the order that they resign or, failing resignation within 7 days, that they be dismissed. They argue that the penalty is more severe than is warranted.

57. Each appellant argues that an appropriate penalty would be a reduction in gradation of rank to Second Class Constable or, at most, Third Class Constable. They rely particularly on their records of performance. It is agreed by the parties that the performance of Trumbley and Pugh over the previous several years can be accurately described as "outstanding".

58. Constable Pugh raises another argument with respect to penalty. The Trials Officer, in his reasons, commented adversely with respect to the evidence given by Constable Pugh (Constable Trumbley did not testify). The Trials Officer finds, in effect, that Constable Pugh committed perjury in that he testified falsely under oath at the trial. On behalf of Pugh it is argued that no person can be penalized for giving evidence in his own defence without being charged specifically with that offence and given an opportunity to defend himself.

59. There is no doubt that it is clearly improper to impose a penalty, or increase a penalty, because of the false testimony of an accused person at his own trial. Such can only be done by way of laying a charge relating to the allegedly false testimony and providing the person with an opportunity to defend. However, one of the important considerations in discipline matters is the future conduct of the employee being disciplined. In many situations the penalty of dismissal can only be justified where it is found that the employee's usefulness to the organization is lost. One of the major considerations, then, is reformation – the likelihood that the employee may continue such conduct in future. In our view it was clearly appropriate for the

60. Trials Officer to consider the evidence of Constable Pugh on this issue of reformation or probable future conduct. He committed no error in so doing.

61. It is noteworthy that the same penalty was imposed on Pugh as was imposed on Trumbley. Their conduct was identical. Their records of performance over a similar number of years with the Police Force were quite similar and, as we have said, were outstanding. The only factor on which one can discriminate between Pugh and Trumbley with respect to penalty is the fact that Pugh testified and Trumbley did not. As previously mentioned, the Trials Officer found that Pugh had testified falsely.

62. Since there was no difference between the penalty imposed on Pugh and the penalty imposed on Trumbley we cannot find that the Trials Officer misused his finding with respect to the evidence given by Constable Pugh.

63. With respect to the appropriateness of the penalty

64. imposed on both officers, we note the trust imposed in police officers by the public and the expectation that people in distress can turn to police officers for help and assistance. A police officer holds a position of public trust and must be held to a high standard in the execution of such office. People in distress must be able to turn to the police with confidence. They must be able to trust that police officers will not take advantage of their distress. We find the conduct of the two officers awful. Their conduct on the night in question, standing alone, justifies dismissal.

65. The only mitigating factor in the record is the outstanding performance records of these two men. The Trials Officer, however, finds a significant lack of evidence of remorse. There is no indication in the record suggesting that the officers regret what they did or that they will not do such a thing again.

66. Apart from the argument that the Trials Officer may have misused his finding with respect to the evidence given by Constable Pugh, we can find no error in the way he reached his decision. We have earlier found that the Trials Officer did not misuse his finding with respect to the evidence given by Pugh. Weighing the conduct of these two officers against their outstanding records, we conclude that the appropriate penalty is not mitigated.

The appeals from penalty are dismissed.

DATED THIS 23RD DAY OF MAY, 1991.

per ______________________________________

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