ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE VIKTOR JUTASI
Appellant
-and-
KINGSTON POLICE FORCE
Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman Raymond G. Leclair, Member
Hearing Date: Wednesday, November 27, 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 Raymond G. Leclair, Member
Appearances: John Scheulderman, Solicitor for the Appellant Norman Jackson, Solicitor for the Force Staff Inspector McCullough
Hearing Date: Wednesday, November 27, l99l
Constable Jutasi had been convicted of the minor offence of discreditable conduct and an admonition was imposed. He appealed to the Board and his appeal wasdismissed.
Mr. Scheulderman argued that the charge as wordedwas a nullity; that the signing of the Charge Sheet was anullity; and that the Board did not deal with the question ofcredibility appropriately and did not apply the properstandard of proof.
Because this was a minor offence the appeal beforethe Board was by way of trial de novo and there is atranscript of that hearing but not a transcript of theoriginal hearing.
The Charge:
- It is alleged that Constable Jutasi acted in amanner likely to bring discredit upon the reputation of theForce. The Statement of Particulars reads as follows:
"Being a Constable with the City of Kingston PoliceForce you on Friday, 07 July l989 (on or aboutll:00 a.m.) were working uniform patrol. In a conversation on that date in the lobby of ll QueenStreet (in the City of Kingston) with one PaulMollis, whose vehicle you had towed from the areaof l006 Portsmouth Avenue. Mr. Mollis asked youwho had complained about the vehicle. You replied,"no one complained about it. I got tired oflooking at the fucking thing. I had it towed myself."
- Note - the words in brackets, underlined, wereadded by the Board by way of amendment to the Statement ofParticulars following Mr. Scheulderman's motion to quash thecharge as a nullity.
Sufficiency of the Charge:
- Section 5(l0) of Regulation 79l provides as follows:
"(l0)A statement of the particulars of anoffence shall, where practicable,include an allegation of the place,date and time of the allegedcommission of the offence."
Mr. Scheulderman argues that the Statement of Particularsdoes not allege the time of day or the municipality in whichthe events occurred. The Statement of Particulars refers to Constable Jutasi "working uniform patrol". He is a member of the City of Kingston Police Force and one would assume thathe is alleged to have been working in the City of Kingston.The "place" of the offence is alleged to be "ll QueenStreet." It turns out that ll Queen Street is the address ofPolice Headquarters in the City of Kingston. It seems reasonable to assume that Constable Jutasi would recognizethat address. In light of the facts in this case we find itwas unnecessary for the draftsman to allege the municipalityin which the events had occurred.
The time of the offence was not alleged in theStatement of Particulars as originally drafted but was addedby the Board following Mr. Scheulderman's motion. It is interesting that the time alleged in the amendment, "on orabout ll:00 a.m.", is inaccurate if it is intended to referto the time of the conversation.
In our view the reason for the existence of Subsection l0 of Section 5 is to require the prosecution togive to the officer accused sufficient information for thepreparation of a defence. The allegation in this caserelates to Constable Jutasi having had a motor vehicle towedfrom the street on the morning of the date in question andsubsequently having had a confrontation with the owner of themotor vehicle. The confrontation occurred at the Police Headquarters at ll Queen Street while Constable Jutasi was onhis lunch break. Constable Jutasi has testified that he had a motor vehicle towed, as in this case, approximately onceevery two weeks. Shortly after the events in question Mr.Jutasi left on vacation and was served with the charge uponhis return. We see no possibility that Constable Jutasicould have been misled or prejudiced in the preparation ofhis defence by this omission and, indeed, no such prejudiceis alleged.
While the Statement of Particulars, as originallydrafted, does not technically comply with the Section nevertheless there is compliance with the spirit of theSection. It is our opinion that the Statement of Particularsis not so deficient as to be a nullity, but that it is adeficiency which can be adequately cured by amendment andadjournment. In this case there was no request for anadjournment following the amendment because, of course, Mr.Jutasi had not been misled.
The appeal fails on this ground.
The Signing of the Charge Sheet:
Section 6 of Regulation 79l provides as follows:
"6. Any constable or other police officer may laya complaint before a chief of police or anyofficer designated by him under Section 3,alleging an offence in accordance with theCode and the chief of police or designatedofficer shall consider the allegations in thecomplaint and, where he considers that theallegations so warrant, he shall sign theCharge Sheet."
Mr. Scheulderman argues that Section 6 requiresthat the officer who signs the Charge Sheet "shall considerthe allegations in the complaint and, where he considers thatthe allegations so warrant, he shall sign the Charge Sheet"and thus requires that the signing officer give some consideration to the evidence or, put in another way, thestrength of the case.
In the case before us the complaint was investigated by Staff Sergeant Murphy who, at the conclusionof his investigation, drafted the Charge Sheet and took it toInspector Fowler. The evidence relating to the considerationgiven by Inspector Fowler to the allegation is in theevidence of Staff Sergeant Murphy who says "we talked alittle bit about it -about the particulars that were on it.I recall him inquiring if the vehicle had been towed. We also discussed minor/major application, which he had to fillout." We note that the Section does not refer to "evidence" but only to "allegations". Further, we note that in thiscase the allegation was put before the Inspector by a StaffSergeant who had conducted an investigation and had interviewed the witnesses. With respect to the foundationsubtending the allegation the Inspector did inquire as towhether the motor vehicle had in fact been towed. With respect to the seriousness of the allegation the Inspectordid discuss with the Staff Sergeant the question of whetherthe charge ought to be prosecuted as a major or a minormatter. In our view the intent of Section 6 has been met.
The appeal fails on this ground.
Credibility:
Mr. Scheulderman argued that the evidence presentedto the Board does not support their conclusions particularlysince the Board chose to decide the matter on the more stringent "criminal" test of "guilt beyond a reasonabledoubt". In fact, he pursues his argument to conclude thatthere is no clear and convincing evidence in this case tosupport a finding of guilt even if the less stringent testhad been applied.
We agree with counsel that as this is an internaldisciplinary matter between the officer and his superiors andthat the proceeding is essentially a matter of labour relations within the police force, the criminal standard ofproof is not the proper standard on which to decide thematter. Although the seriousness of the allegations and theseverity of the potential consequences may require a higherdegree of proof, the balance of probabilities is the properstandard in this instance. We are convinced that if the Board had applied the civil standard, their findings wouldhave been the same. We note in passing that the PoliceServices Act, which has replaced the Police Act, describesthe test as "clear and convincing evidence". This Act was not in force, however, at the time of the proceedings underappeal.
The trier of the fact is best suited to judge theparties' and witnesses' credibility. After two hearings,each trier of fact has upheld the allegation. We are loath to reverse such a decision unless a clear error is demonstrated. The Board has shown that it was aware of the criteria to properly assess credibility stating:
"The Board has looked to the demeanour, apparentcandour and the content of the testimony of each inlight of all the circumstances of the case."
We cannot conclude that they erred because they didnot particularize their decision or reasons for not acceptingthe officer's denial. They had the benefit of seeing theindividuals and drawing their conclusions from the answersgiven and the demeanour presented. We are not convinced that the fact that the Board may have exaggerated their findingregarding the officer's demeanour on the day in question orhypothecated on the reason for the officer's conduct negatesthe existence of sufficient evidence to reach their conclusion. To the contrary, they were so convinced of theirposition that they stated being satisfied beyond a reasonabledoubt. perception,We concur with the Board that the complainants'in view of the circumstances, their inconsistencies regarding estimated distances, time and wording, do not necessarily adversely effect the credibilityof the witnesses. Minor inconsistencies in the evidence given by different witnesses is very often the hallmark ofhonesty. Different people honestly trying to recollect anincident from the past can be expected to differ to someextent. It is equally true, however, that inconsistenciescan often destroy credibility but these inconsistencies arenot of that nature.
The question to be decided simply concerns whetherthe obscenity was uttered by the officer. We are satisfied that there was sufficient evidence before the Board for it to reach the conclusion which it did and that any errors thatmay have been committed in that process are not sufficient topermit us to interfere with that decision.
For the above reasons the appeal is dismissed.
DATED THIS 2 DAY OF JANUARY, 1992.
per W.D. Drinkwalter, Q.C., Chairman