Constable Roelof Vos v. Peel Regional Police Service, 1993 CanLII 14137

Ontario Civilian Police Commission

In the matter of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Between:

Constable Roelof Vos Appellant

-and-

Peel Regional Police Service Respondent

Decision

Panel: Karl R. Fuller, Member Dean E. Peachey, Member

Hearing Date: Friday, October 15, 1993 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: Karl R. Fuller, Member Dean E. Peachey, Member

Appearances: Eugene J. Bhattacharya, Counsel for the Appellant Inspector Tom Hughes, Peel Regional Police Inspector Blair Foley, Peel Regional Police

Hearing Date: Friday, October 15, 1993

1This is an appeal pursuant to Section 63(8) of the Police Services Act from a finding of discreditable conduct and a penalty of dismissal imposed by a Hearing Officer and subsequently confirmed by the Peel Regional Police Services Board.

The Facts:

2On June 22, 1991 at about 2:00 a.m., Constable Vos, while off duty was involved in a driving altercation with another vehicle on the Queen Elizabeth Way near the Hurontario exit. Constable Vos stopped his car on the exit ramp in a position that blocked the other vehicle, bringing it to a stop. A verbal dispute ensued during which Vos assaulted the driver of the other vehicle, a Mr. Todd Shannon. Mr. Shannon suffered extensive facial damage which included a broken nose, bruises to his inner mouth, broken bonding to his teeth, marks and scrapes on his face and a swollen right eye. An amount of blood was splattered on Shannon’s clothes as well as on his car and on the ground. Shannon continues to receive chiropractic treatment for injuries to his neck.

3As a result of a complaint made to Peel Regional Police, Constable Vos was arrested and charged with assault upon Todd Shannon causing bodily harm, contrary to Section 267(i)(b) of the Criminal Code. He was convicted, fined $1500.00, and in default, six months imprisonment, and 18 months probation.

4Constable Vos subsequently faced a disciplinary hearing under Part V of the Police Services Act. At the time of this hearing Mr. Vos held the rank of Second Class Constable, with approximately four years service. There were no commendations or previous Police Act charges in his file but it did contain a conduct report relating to his failure to report for paid duty.

5At the time of the hearing Constable Vos was on probation after pleading guilty to a charge of failing to comply with the conditions of a firearm’s permit contrary to the Criminal Code.

6Constable Vos was an expert in martial arts. He held a black belt in karate and was a self-defence instructor for the Peel Regional Police Force. The hearing officer found him guilty of discreditable conduct and recommended dismissal. An appeal of the order to the Police Services Board was dismissed.

Counsel for the Appellant argued the following points:

1. The penalty was harsh and out of proportion with the offence.
2. The Hearing Officer failed to take into consideration other similar charges against police officers wherein penalties less than dismissal were imposed and thereby created a disparate penalty.
3. The Hearing Officer and the Board erred in finding no remorse.
4. The Hearing Officer and the Board erred in finding a propensity for violence given that this was the first episode of such a nature involving the Appellant.
5. The Hearing Officer and the Board erred in finding that the record disclosed no factors in mitigation.

Credibility:

7The Appellant also argued that when the trial judge accepted the testimony of Mr. Shannon over the testimony of Constable Vos, the court did not suggest that Constable Vos had perjured himself or that his evidence was “uncredible”. Therefore the judge’s finding should not be seen as discrediting any future testimony by Constable Vos in the course of his work as a police officer.

8In our view, the fact that the judge accepted the evidence of a civilian over the evidence of a police officer is a cause for some concern, but is hardly sufficient grounds to conclude that the officer’s future testimony could never be credible. However, we find another series of events that seriously undermines Constable Vos’ credibility. The Appellant had submitted to the hearing officer evidence that he was under personal stress at the time of the assault incident, having just learned that his father had been in a serious automobile accident. The Appellant provided the hearing officer with a physician’s letter stating the doctor’s opinion that the accident “likely resulted in the problems Mr. Vos experienced the following day, June 22, 1991 …” In his presentation to us, Appellant’s counsel conceded that the father’s accident had in fact occurred six days after the assault, and that this discrepancy provides some difficulty for the Appellant’s case. We believe counsel is understating the matter considerably; this discrepancy seriously undermines the officer’s credibility.

Proportionality and Disparity:

9The Appellant’s counsel provided the Commission with a “Book of Authorities” containing previous cases, and argued that those penalties were less severe than dismissal. In reviewing these cases we do not find them of equivalent import to the assault for which Constable Vos was convicted in criminal court.

10The cases of Koresec and Canapini give us some concern. These cases involve off-duty Peel Regional Police officers who became involved in an altercation in a nightclub in Niagara Falls, New York. Canapini was arrested for Disorderly Conduct and Koresec interfered with the arresting officer and was charged with Obstructing a Police Officer and Resisting Arrest. The similarities with the Vos case are that these officers were members of the same police force as Constable Vos and that their conduct occurred off-duty and was indeed discreditable. However, what distinguishes the case which is before us is the character of the assault coupled with the serious credibility problem.

Remorse:

11Counsel for the Appellant argued that in fact Constable Vos had indirectly demonstrated remorse by not electing trial in a higher court by a jury (thereby saving public time and expense), by not appealing the Court’s conviction, and by pleading guilty to the subsequent charge under the Police Services Act. We find these arguments of no merit. The type of trial one elects can hardly be viewed as an indicator of remorse. We consider the finding of guilt in the criminal court is a realistic basis for a plea of guilty to the discipline charge. We also note that when Constable Vos was representing himself in his appeal to the Police Services board he indicated to the Board that his decision not to appeal the assault conviction was based largely upon financial considerations.

12We note that Constable Vos did not report the assault incident to his superiors. There is no indication to us that Constable Vos ever apologized to the victim or demonstrated any concern for his well being or recovery. The letter presented by his physician indicates that Constable Vos’ account to his doctor minimized his own responsibility for the incident. We find no evidence that the Board erred in finding no remorse.

Propensity for Violence:

13The Appellant argued that a single violent episode does not constitute sufficient evidence to justify a finding of a propensity for violence. The violent behaviour was extreme and unnecessary, and when coupled Constable Vos’ proficiency in the martial arts the behaviour becomes all the more discreditable. If any one should have been able to deal with the situation without inflicting injury, by virtue of his special training, Constable Vos should have been able to. We hesitate to infer a propensity for violence from this one incident standing alone, notwithstanding the severity of the violence and the injuries caused.

Mitigating Factors:

14The Appellant argued that Constable Vos voluntarily sought a doctor’s treatment to deal with emotional stress and made appropriate progress in such treatment. The fact that the officer was off-duty at the time was also presented to us as a mitigating factor. At the time of the hearing Constable Vos was facing a charge of dangerous driving arising from a subsequent unrelated incident, and the hearing officer used that charge as evidence that Constable Vos had not been rehabilitated. Counsel pointed out that Constable Vos was acquitted of that charge prior to his appeal to the Board but the Board appeared not to take that acquittal into account

15We are not sure that being off-duty provides any mitigation. Evidence from the sentencing transcript indicates the victim had some reason to believe that he was dealing one or more police officers. According to the submissions on sentence Mr. Shannon asked Constable Vos if he was a “cop”. We do not know what answer was given but what we do know is that Constable Vos delivered a beating and then got into his car and drove away. If the testimony of the victim is accepted Constable Vos either identified himself as a police officer or declined to identify himself when asked. We do not find that the Board erred in finding of the record disclosed no significant mitigating factors.

Conclusion:

16Part V of the Police Services Act provides a range of penalties for the offence of Discreditable Conduct. The choice of penalty will, naturally, depend upon the seriousness of the circumstances. This assault on a member of the public was so severe and unnecessary as to raise questions about whether Constable Vos can continue to serve the public as a police officer. Further, we find that the claim of emotional duress due to an automobile accident involving the Appellant’s father ostensibly on a day before the assault, when in fact the accident occurred several days after the assault, irreparably damages the Appellant’s credibility as a police officer.

17This case is distinguished from the cases Koresec and Canapini by the severity of violence and the credibility of the officer.

18For the above reasons the appeal is dismissed.