ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
RICHARD A. BRAYSHAW
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman
Mary Lou Dietz, Member
Hearing Date: Monday, July l3 and l4, l992
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 Mary Lou Dietz, Member
Appearances:
Eric Hafemann, Solicitor for the Appellant John P. Zarudny, Solicitor for the Respondent
Hearing Date: Monday, July l3 and l4, l992
At the time of these events Mr. Brayshaw was a Detective Sergeant and was the commanding officer of the Guelph Detachment of the OPP. He was charged with five counts of discreditable conduct. He was tried on the five counts together, convicted on two, and the penalty imposed was a reduction in rank to that of First Class Constable. He appeals both the findings of guilt and the penalty imposed.
The allegation was that he had made unwelcome sexual comments, advances, and in some cases physical touching with respect to five female civilian members of the Detachment. Two of these were full-time radio dispatchers and the other three were Co-op Placement Students serving in a job experience as part of their courses. The two counts on which he was found guilty relate to Ms. Bethlene Fitzgerald, one of the students, and Ms. Denise Bendo, a civilian member of the Force.
In considering this appeal we have read the transcripts of the trial and have also had the benefit of lengthy argument and a detailed factum from each of the parties. In addition to that Mr. Hafemann filed copies of some twenty decisions of various courts.
Mr. Hafemann filed detailed grounds of appeal with respect to each of the two counts. The issues, however, are sufficiently similar that we feel comfortable dealing with the
grounds of appeal without specific reference to either count.
Grounds of Appeal
The Findings of guilt were "not supported by the evidence".
The appellant was tried on five counts of discreditable conduct and convicted on two. We are satisfied that the evidence put before the Presiding Officer was sufficient to justify that finding. The conduct described by the witnesses conforms to the pattern of sexual harassment described in both sociological and legal literature on sexual harassment, as does the conduct of the victims. We are satisfied that the Presiding Officer properly weighed the evidence that was before him. We note that with respect to two of the three counts which were dismissed he found that the conduct had in fact occurred but that the evidence fell "short of clear and convincing".
"The Presiding Officer misdirected himself" ... with respect to the evidence of certain witnesses.
Having read the transcript we can find nothing to support the suggestion that the Presiding Officer did not properly comprehend his duty with respect to assessing and weighing the evidence.
"The Presiding Officer made findings of credibility, including that of the appellant, on insufficient, conflicting or no evidence".
An appellant body cannot assess credibility from reading a transcript unless that transcript discloses clear errors by the Presiding Officer. The Presiding Officer has the advantage of hearing the tone of voice, seeing facial expressions and body language and generally assessing the demeanour and personalities of the witnesses. We have found nothing in the transcript which would justify an appellant body in overturning the Presiding Officer's findings. We note again that the Presiding Officer refused to convict on three of the five counts while, with respect to two of them, commenting that the behaviour was inappropriate but nevertheless finding that the evidence fell "short of clear and convincing".
That the Presiding Officer displayed "an obvious bias" against the appellant.
We have read the transcript carefully with respect to this ground of appeal and can find no support for this proposition. It is true that the defence made very many objections and usually without success but it appears to us that the Presiding Officer's decisions dealt discreetly with each objection or motion. We refer again to the fact that with respect to two of the three counts on which the appellant was not convicted the Presiding Officer found that the conduct had in fact occurred but that the weight of evidence was not sufficient to justify a finding of guilt. It appears to us that the quality of response of the Presiding Officer did not differ with respect to applications by either side.
"The Presiding Officer erred in admitting the evidence of Ann Gervais, by way of reply ... ".
Mr. Hafemann argued that Mr. Zarudny ought not to have been permitted to call Anne Gervais in reply. The hearing was conducted over several days over a span of months. The prosecution closed its case on September l8th, l99l. The defence closed its case on November 27th, l99l and on December l7th the hearing re-commenced and Mr. Zarudny sought permission to call the witness Anne Gervais "in reply".
One of the complainants/victims was Denise Bendo. Amongst other things she testified that Brayshaw had touched her neck many times. The thrust of the evidence of Gervais is that she worked in the same general area as Bendo and had a clear view of Bendo and she confirmed that Brayshaw had touched Bendo's neck frequently.
Zarudny argued that this is proper reply evidence because Brayshaw had denied the touching. It is our understanding that reply evidence is permissible only with respect to an issue which has been raised for the first time in the evidence called by the defence. The issue here is whether or not Brayshaw touched Bendo's neck frequently. This allegation is part of the substance of the charge and accordingly the issue is raised, not by evidence given by the defence, but by the charge itself. The charge with respect to Bendo is particularized as follows:
"Between August 7, l987 and August l0, l988 while serving as Detachment Commander at Guelph Detachment, you made sexual comments towards Denise Bendo, a female civilian Radio Operator employed at your detachment. These remarks, as well as incidents where you physically touched Ms. Bendo constituted acts that were known to be or ought reasonably to have been known to be inappropriate and unwelcome."
It is our view, therefore, that the evidence of Gervais ought not to have been admitted as reply evidence.
This leaves open the question of whether the evidence of Gervais could properly be admitted under some head other than "reply evidence". At Pages 22, 23, 28 and 29 Gervais testified that she was first approached with respect to this evidence "about three weeks ago". She also indicated that the investigators were not even aware of her existence until that time. The prosecution had closed its case on September l7th, approximately three months before Gervais testified. The defence evidence was heard in September and November. The defence closed its case on November 27th which would have been just about the time that the existence of Bendo had been discovered.
Since Brayshaw's defence was, generally, a denial of the incidents alleged against him the evidence of Gervais becomes significant. Specifically he had denied the touching which Bendo testified to and Gervais' evidence serves to confirm that of Bendo in that she claims to have seen many of the touching incidents.
The proceeding appealed from was a discipline hearing not a criminal trial. The rules of
evidence applicable in criminal trials are not applicable in such proceedings. In our view the presiding officer had a discretion to permit the crown to re-open its case and to call Gervais. Having assessed the significance of the evidence and the fact that it was not known to the prosecution before the defence called evidence, we are satisfied that the evidence of Gervais was properly admitted although, in our opinion, it does not properly constitute "reply evidence".
That the Presiding Officer improperly refused to permit the defence to re-open its case.
One of Mr. Hafemann's grounds of appeal is that after the trial had concluded he brought a motion to re-open the case to present further evidence. This motion was heard on January l4th, l992. The Adjudicator denied the motion.
Mr. Hafemann had attempted to paint the witness/victim Fitzgerald as a temptress, as a woman who was in fact pursuing Mr. Brayshaw and that accordingly whatever conversation or physical contact there may have been was not unwelcome. He argues that Fitzgerald attempted to paint herself as an innocent l8-year old who was shocked by Brayshaw's conduct. He argues that she is not the innocent person she paints herself to be.
The evidence that he seeks to call is that of Carolyn and Brian Voisin. It is said that these persons are over 30 years of age, that Brian Voisin had a sexual affair with Fitzgerald, that this affair may have been going on at a time when Mrs. Voisin was pregnant, and that the affair was a major cause of the break up of the Voisin marriage.
Mr. Hafemann argues that this evidence goes to the credibility of Fitzgerald by way of establishing that she was not the l8-year old innocent that she allegedly portrayed herself to be.
Assuming the allegation of the Fitzgerald-Voisin affair to be fact, it does not necessarily follow that Fitzgerald would not be shocked by the conduct of Brayshaw who was the Detachment Commander where she was employed as a student. Neither does it necessarily follow that Brayshaw's marital status and age would not be factors in her lack of interest in or attraction to Brayshaw.
In our view this evidence, standing alone, is not admissible. In order to make it admissible Mr. Hafemann would have to put appropriate questions to Fitzgerald. If such questions had been put and the relationship denied then, of course, the evidence would become admissible as going directly to the credibility of Fitzgerald. The questions were not put to Fitzgerald nor was any application made to recall her in order that the questions could be put. Had the questions been put, Fitzgerald might well have answered them in such a way as to make the evidence of Brian Voisin and his wife Carolyn unnecessary and superfluous.
It is our opinion that the evidence which Mr. Hafemann sought to call by way of re-
opening his defence was not admissible.
- "The Presiding Officer ignored and/or failed to instruct himself as to the law with respect to disclosure.
Mr. Hafemann argues that the evidence of Gervais which was called to corroborate the evidence of Fitzgerald and which was called after the defence had closed its case, was not properly disclosed to the defence. In our view this argument fails. Clear disclosure requirements are not legislated; the witness in question was discovered serendipitiously after the defence evidence had begun, if not concluded; the Presiding Officer offered Mr. Hafemann time to prepare to deal with the evidence; and finally, the evidence given by this witness was nothing "new" she merely corroborated evidence previously given by Fitzgerald.
The Presiding Officer failed to instruct himself properly with respect to "collaboration".
Mr. Hafemann argued that there could well have been collaboration among the witnesses and that the Presiding Officer did not pay appropriate attention to this possibility.
There appears to be nothing of substance in the transcript to establish collaboration or a motive to collaborate. The evidence indicates that in spite of being in somewhat similar work at a common location at approximately the same time period there was minimal contact among the victims. We can find nothing in the transcript to support this ground of appeal and accordingly it fails.
"The Presiding Officer failed to recognize that the charges were so vague that the appellant was not able to properly make full answer and defence".
The particulars of the two counts on which Brayshaw was convicted are:
Between February 20, l990 and April 4, l990 while serving as Detachment Commander at Guelph Detachment, you made sexual comments towards Bethlene Robin Fitzgerald, a female high school co-operative student placed at your Detachment. These remarks, as well as incidents where you physically touched Ms. Fitzgerald constituted acts that were known to be or ought reasonably to have known to be inappropriate and unwelcome.
Between August 7, l987 and August l0, l988 while serving as Detachment Commander at Guelph Detachment, you made sexual comments towards Denise Bendo, a female civilian Radio Operator employed at your Detachment. These remarks, as well as incidents where you physically touched Ms. Bendo constituted acts that were known to be or ought reasonably to have been known to be inappropriate and unwelcome.
We understand Mr. Hafemann's concern but it must be tested against the facts and the principle. Some incidents are easier to particularize than others. The five incidents in question during this trial can be described generically as "sexual harassment". Incidents
of this kind, stretching over an extended period of time, are by their very nature difficult to describe with particularity. The principle involved is the prevention of surprise and the ability of the defence to prepare to meet the allegations. Both of these concerns can be adequately met by way of adjournment to give the defence an opportunity to prepare.
The prosecution closed its case at the end of the day on September l8th and Mr. Hafemann called his client to testify on the morning of the l9th. There was no application for adjournment and no indication that Mr. Hafemann needed time to prepare. With respect to the two counts in issue on this appeal we note that both Bendo and Fitzgerald testified on September l3th.
We are satisfied that the defence was not taken by surprise and had adequate opportunity to prepare.
For the above reasons the appeals from conviction are dismissed.
PENALTY
The Presiding Officer found Sergeant Brayshaw guilty of two counts of discreditable conduct. The conduct can be characterized as sexual harassment. One of the targets of Brayshaw's attention was a female dispatcher and the other a female co-op student. At the time Brayshaw was the Detachment Commander in the Guelph Detachment.
At trial the prosecution had sought to have Brayshaw dismissed. The Presiding Officer rejected that submission and demoted Brayshaw from Detective Sergeant to Constable for a period of at least one year with the stipulation that any promotion be in accordance with normal force rules and policies.
In his Notice of Appeal Mr. Hafemann sets out the following grounds:
The penalty imposed is excessive in light of all of the circumstances.
The Presiding Officer totally failed to appreciate the relevancy of remorse or the lack thereof in these particular circumstances.
The Presiding Officer was preoccupied with the press, and the reputation of the Ontario Provincial Police Service.
The Presiding Officer took into consideration the evidence of Dr. Stermac, when such evidence was totally lacking in evidentiary value.
The Presiding Officer was confused as to the relevant evidence to be considered when dealing with penalty in this case.
The Presiding Officer misdirected himself on the evidence as to the effect the alleged conduct had on the accusers.
The Presiding Officer failed to take into account penalties imposed in other similar cases and refused to be guided by previous decisions.
Ground #l - Penalty Excessive
In our opinion the penalty imposed was the lowest penalty that could be acceptable under all the circumstances. Sexual harassment in the workplace is totally unacceptable conduct and is particularly reprehensible when the harasser is a Detachment Commander and the target of his conduct is a junior employee.
Ground #2 - Remorse
Brayshaw's testimony was a denial of the incidents. While the Presiding Officer made reference to the fact that Brayshaw had not apologized, he did not, in our view, place any undue weight on the question of lack of remorse.
Ground # 3 - Preoccupation with the Press and the Reputation of the Force
We wish to point out that the Presiding Officer in this case was not a member of the Ontario Provincial Police; he was a senior officer brought in from a municipal police force specifically to conduct this proceeding. One of the factors weighed in the decision was the public perception of the Ontario Provincial Police Force. The reference to coverage by the news industry is no more than a reference to the fact that the public had some interest and some concern with respect to these allegations. This was a proper consideration and, in our view, the Presiding Officer did not give it undue weight.
Ground #4 - The evidence of Dr. Stermac
Dr. Stermac was called with respect to penalty; Mr. Hafemann had no objection to the doctor being called but, having heard the evidence, takes the position that it was of no value.
Dr. Stermac testified in cross-examination: "I don't see the issue as sexual deviation. I don't see that. I don't see that organic deficit to the brain as related to misconduct." Later the doctor assesses the conduct in question here at 6 on a scale of l to l0. The Presiding Officer clearly did not accept this position. In giving reasons for the penalty he assessed the conduct "at the lower end of a scale of l to l0".
Having read the evidence of Dr. Stermac we can find nothing particularly helpful or damaging in it and while the Presiding Officer did refer to that evidence, as well as the evidence of a crown attorney, it does not appear to have had any significant effect on his decision.
Ground #5 - Confused as to the relevant evidence
We can find nothing in the transcript to support this ground of appeal. In our view the Presiding Officer took into account all the appropriate considerations and gave each of them appropriate weight.
Ground #6 - The effect the alleged conduct had on the accusers
The effect of such behaviour on the victim is an appropriate consideration when imposing penalty. We cannot find that the Presiding Officer gave inappropriate weight to this consideration. Indeed, the penalty imposed is fully justified without any consideration of the damage done to the victims.
Ground # 7 - Penalties in similar cases
In l992 sexual harassment in the workplace is a particularly serious offence. This may not have been so some years ago but it is so today.
In his reasons for penalty the Presiding Officer said: "The mistaken belief that complaining of a superior's behaviour in the workplace will not be addressed, or worse still, lead to further hardship on the employee, has to be removed." We concur. We support the Presiding Officer in his attempt to send a clear message to the police and the public that this type of behaviour is indeed discreditable and will not be tolerated.
It is our conclusion that any lesser penalty than the one imposed in this case would have been inappropriate.
For the above reasons the appeals from penalty are dismissed.
DATED THIS 3RD DAY OF SEPTEMBER, 1992.
per ______________________________________ W.D. Drinkwalter, Q.C., Chairman