ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
PROVINCIAL CONSTABLE WILLIAM CROZIER
Appellant
-and-
WATERLOO REGIONAL POLICE SERVICE
Respondent
DECISION
Panel: Mary L. Dietz, Member
Raymond G. Leclair, Member
Hearing Date: March 8, l993
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:
Mary L. Dietz, Member
Raymond G. Leclair, Member
Appearances:
Eric Hafemann for the Appellant
P.C. William Crozier in Person
Brian R. Law, assisted by Virginia Torrance for
the Waterloo Regional Police Service
Inspector H. Heuchert, Prosecuting Officer
Hearing Date: March 8, l993
This is an appeal from the conviction imposed uponP.C. Crozier when he pleaded not guilty to disciplineoffences heard before Superintendent Larry Gravill of theWaterloo Regional Police Force in hearings conducted betweenJanuary 2l and February l0, l993.
Further, this is an appeal from the penalty imposedupon P.C. Crozier in a separate and subsequent hearing.Constable Crozier had been found guilty of common assault inthe Ontario Court Provincial Division and granted a conditional discharge. This offence occurred at a time when Crozier and his wife were separated. It was an assault on a male friend of his wife.
The Facts:
William Crozier, at the time a First Class Constable with the Waterloo Regional Police Service, wascharged with and plead not guilty to l5 counts of discreditable conduct and neglect of duty which flowed from a"sexual relationship" with a female member of the public. He was found guilty on l3 counts.
The Penalty:
In the first appeal, on the discreditable conductcharges number 2 to l0, his penalty was a reduction in rankto Third Class Constable. On charge number l3 to l5, hispenalty was forfeiture of l5 hours per neglect of dutycharge.
In the second appeal Constable Crozier had pleadedguilty to a charge of discreditable conduct under Sectionl(a)(i) of the Code of Offences and was sentenced to a six-month reduction in rank from Third Class Constable to Fourth Class (High).
In considering this appeal we have read the transcripts of the hearing before the presiding officer andhave also had the benefit of oral arguments and a detailedfactum from each of the parties' counsel.
Duplicity:
Counsel for the appellant argued that the findingof guilt on both charges #2 and #l3 and also #8 and #l5amounted to duplicity, because the evidence relied upon tosupport a finding of guilt is the same for both charges.
Charge #2 alleged discreditable conduct in thatbetween approximately February 25, l985 and June l, l985shortly after midnight, the officer is purported to haveconvinced the complainant to meet him at a determined location and there directed her to follow in her car to a secluded area in his patrol zone where they engaged in sexualactivity. Charge #l3 deals with the same time period andadmittedly meeting, but charges that the officer, while onduty, had coffee and idle conversation with the complainantunrelated to the performance of his professional duties.
We were referred to a decision of this Commission in Constable David Dempsey and the Waterloo Regional PoliceService wherein the Commission granted the appealand reversed the conviction based upon the duplicityprinciple. In that instance the officer was charged with twocounts of discreditable conduct in that he used profane,abusive or insulting language towards another member of thepolice force and acted in a disorderly manner or in a mannerlikely to bring discredit upon the reputation of the policeforce by the above conduct in the presence of members of thepublic. The Commission stated that the offences in both counts were committed at the same time and by the same acts.
The counts were not separated by location or by time. The only distinction is that one count alleged the language inquestion was directed to a member of a police force and theother count alleged that the disorderly conduct was the useof the same language in the presence of members of thepublic. Based upon the rules of natural justice the panelthen concluded that one cannot be convicted twice based uponthe same delict and being unable to see any distinction inthe conduct supporting both charges reversed the convictionon one of the charges.
Counsel for the police service invited us to recognize the distinction in this case necessary to supportthe two separate charges. Charge #2 related to the discreditable conduct of engaging in sexual activity while onduty and charge #l3 relates to the neglect of the officer'sduties by engaging in idle conversation and having a coffeewith the complainant other than for reasons of policebusiness. The Commission recognizes that there may becircumstances when officers have coffee and conversations with members of the public while they are on duty for avariety of reasons including establishing better police/community relations, obtaining information, etc. In this case there was no evidence presented by the officer thathis conduct was to fulfill a professional responsibility andin fact the officer admitted in his testimony that he had nolegitimate police business reason to engage in this activity.
If the charge of neglect related to the time he wasaway from his duties while he engaged in the sexual activitywe would have concurred with counsel's argument. However, wefind that the conduct in support of these two charges isseparated by time and are distinguishable acts. Having heardthe evidence, the presiding officer found that ConstableCrozier had neglected his duty by engaging in idle conversation and further had discredited the police force inengaging in the alleged sexual activity. We find that the evidence supports the presiding officer's conclusion anduphold his decision.
We find the same applies to charges #8 and #l5 anduphold the presiding officer's decision. Although not argued, the same would apply to charges #7 and #l4.
Lack of Evidence to Support Convictions:
The officer's counsel argued that the evidence onthe record does not support a conviction. His argument isnot that the conduct did not occur. In fact the constable has admitted that sexual contact did occur between himself and the complainant. There was a question of whether thiscontact was consensual or forced, and this was resolved bythe presiding officer in favour of the officer, on which wewill comment later in this decision.
Counsel further argued that a critical element ofthe charge is that the sexual contact occurred while theconstable was on duty and it is this aspect of the evidencewhich he maintains was not proven. A considerable amount of time was expended to attempt to narrow the time element ofthe individual incidents in order that proof could be advanced by the constable that in fact at all material timehe was not on duty. However, the constable does provideinsight as to why the complainant would think that he was onduty. His testimony was that he often told her when he visited that he was on duty in order that he would not haveto stay too long when he visited and have a convenient excuseto leave.
The charge however reads "that you did act in amanner likely to bring discredit upon the reputation of thepolice force". Although the conduct is obviously moreserious if it occurred while the officer was on duty, webelieve that the evidence to prove the offence need not infact prove that the conduct did bring discredit but whetherthe likelihood of it has been demonstrated if viewed in the eyes of a reasonable person. What the officer is asking usto accept is that he engaged in this sexual contact, whileoff duty, but while leading the complainant to believe thathe was on duty. The result we feel is the same. The complainant was led to believe and obviously from her evidence did believe that she was engaging in sexual contactwith an officer while he was on duty. That is the perceptionshe would take away and possibly relate to others. This we accept is likely to bring discredit to the police force.
The transcript reveals evidence to invite one todetermine whether or not this constable was on duty duringthe material times and in fact the presiding officer didconclude that the constable was actually on duty for severalof these incidents. We find that it is unnecessary to drawthis conclusion as the evidence clearly demonstrates that thecomplainant was led to believe, rightly or wrongly, that shewas engaging in these sexual contacts with an officer whilehe was on duty.
The constable's counsel referred us to the wordingof the charges and argued that they were deficient in thatthey did not allege that the officer was on duty whileengaging in the sexual contact. A review of the wording ofthe charges shows that all of them include the words "whileyou were on duty" or "while on duty" except for charge #l0,which is silent as to this aspect. Charges #5 and #9 onlyallege that the sexual conduct occurred "while in policeuniform". We note that a copy of the charge sheets wereserved on the constable on the llth day of July, l99l. The disciplinary hearing commenced on the 2lst day of January,l992 and the prosecution continued to present its case on the22nd, 24th and 28th of January. The Defence opened its caseon the 3lst of January and continued on the 7th and l0th ofFebruary. A conviction was entered on the 23rd day of April,l992. The prosecution's case relied at all times in demonstrating that the constable engaged in the activity inquestion while on duty. The defence although admitting thatthe sexual contact occurred continually attempted to showthat it did not occur while the officer was on duty.Although the three charges outlined above may not have beendrafted as precisely as they could have been, we are of the
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- view that the constable and his counsel had plenty of timefor proper disclosure before the hearing commenced and duringthe hearing to ascertain the exact nature of the charge andto properly defend against the charge. No element of surprise was argued or demonstrated by the transcript. The defence knew at all times the case it had to meet. Again wedo not determine this element of the charge as critical as wediscussed above because the charge is the likelihood that theactivity complained of will bring discredit to the policeforce. The evidence clearly demonstrates that the complainant thought she was engaging in sexual contact withthe officer while he was on duty and it is immaterial whetheror not he was on duty. Was it possible for a reasonableperson to conclude in the circumstances that the officer wason duty at the time in question. The evidence supports thisconclusion and therefor the offence is substantiated.
Vagueness of the Time of Occurrence of the Charges:
We were invited to find that the charges did notcomply with Regulations 79l/80, Section 5(l0) in that theydid not specify the date and time of the offence alleged.The regulations specifically set out that the date and timeare to be included if practicable. The intent of the regulation is to ensure that the officer knows the incidentthat the offence relates to and that he knows the case that he must answer. In view of our earlier ruling, we believe,even if only time periods were provided in the charges, theofficer knew the case to meet and was not unduly prejudicedby the lack of specificity.
Defence counsel argued that the lack of specificityas to the time of the occurrence of the alleged activity wasa denial of natural justice as the constable was unable tospecifically demonstrate that the activity did not occurwhile he was on duty as alleged. Again we do not see this ascritical because of our earlier finding. However, thisargument has been raised in various hearings, especially inthe criminal context, when dealing with, for example, warcrimes and indecent sexual conduct experienced years earlier.
The matter is rife with difficulty in that the personcharged has a fundamental right to know what specific conductis in question, what case he or she has to meet and beentitled to fully respond with the necessary facts to denyany culpability. Notwithstanding these difficulties thereare numerous reported cases of convictions where the prosecution was unable to clearly demonstrate to the trier offact the exact date or specific time of day that the allegedoffence occurred, but did prove to the trier of fact'ssatisfaction that the offence did occur and that the personcharged was legally responsible or at fault.
The officer further argued that if the prosecution could point to the exact date and time when the activitywhich is the basis of these charges is alleged to haveoccurred, the constable could refer to his notes and specifically demonstrate that the activity could not haveoccurred at that time or in that fashion. Although that maybe the case because of the police members record keepingtraining and requirement, it is patently unfair to holdordinary members of the public and complainants to that samestandard. The officers' notes are required to assist them torecollect facts and incidents relating to their policingduties and investigations and do not necessarily relatematters of their personal activities during or outside ofoffice hours. Further, the notes are only as accurate as theofficer preparing them. Even if notes existed, it would be amatter of credibility for the presiding officer to assesswhether the notes reflected the events of the time. In fact,in this case, the transcript reveals that when the chargesspecifically related the date and time of the allegedoffence, the constables notes were of no assistance to denyor support either the theory of the prosecution or defence.Finally, if the presiding officer and this panel were toaccept the officer's defence, that the sexual contact didoccur while he was not on duty, but while he led thecomplainant to believe he was on duty, and the notes didconfirm that he was not on duty at all material times, weconclude that the charges would still be proven and theconviction upheld.
Lack of Particulars to Reasons:
- The appellant's counsel argued that the lack ofparticulars in the reasons of the presiding officer is aground to reverse his decision. It was alleged that the onlywitnesses to these activities were the constable and the complainant and that credibility therefore played a veryimportant role in the decision. Counsel argued that thedecision is conflicting in that the presiding officer seemedto believe the complainant in some circumstances and theofficer in others, without clearly establishing in his reasons why he came to this conclusion. Questions ofcredibility are not always settled entirely in favour of onewitness and in complete opposition of the other. Although itwould certainly be illuminating to see what specificdetail(s) or factor(s) led the presiding officer to concludeas he has done, it is clearly established law that matters ofcredibility are within the presiding officers jurisdictionhaving had the opportunity to see the witness, his or herdemeanour and expressions when delivering the evidence andthe witness' composure under cross examination and that anappellate body such as ours should not disturb the presidingofficers ruling in such matters unless the transcript revealsextraordinary reasons to do so. Our review of the transcriptconfirms that there is evidence, if accepted, to support the charges and it being a matter of credibility we cannotconclude that the presiding officer was without reason todecide as was done.
Evidence of Forced Sexual Activity:
The panel takes this opportunity to express itsconcern about the possible coercive effects of the power Of authority.The panel was not impressed with the testimony ofP.C. Crozier in his own defence as reported in the trialtranscripts. The narrow view of sexual aggressivenessbrought out in the proceedings focused on the use of force orthreat rather than other forms of sexual intimidation that have been so clearly outlined in recent studies of date rape.It is clear from his evidence that the officer had no intention of maintaining a personal friendship or a mutualsexual relationship with the complainant. By his own admission he treated her as a prostitute and presentedhimself to her as a police officer. He did not, however,either pay her or engage in any reciprocal sexual behaviour.
The panel was surprised that the Presiding Officer did notfind Officer Crozier's conduct to be sexually coercive sinceby his own testimony he "used her" without regard to herwishes. There is no question that he did indeed make surethat the complainant was aware at all times that he was apolice officer with all of the authority that is implied bythat position. As in any case, where a person in a positionof authority, interacts with someone who does not haveidentical authority there is the potential for coercionimplied in the imbalance of power in the relationship. As Kamini Maraj Grahame wrote in an article "Sexual Harassment"in l985,
"Power is in part the ability to subvert anotherperson's will to one's own. To exercise such poweris to do violence to that other person. Men who have economic power or the power to assign gradesmay use these forms of power to gain sexual accessto women. (Thus men who are in a position of powermay use this power to subvert a woman's will totheirs.) He has violated her right to decidewhether she wants to be sexually accessible and towhom."
- To the question of what constitutes force in these cases,Grahame in the same article stated,
- "Physical force is only one expression of power andis also only one expression of violence on acontinuum of coercive practices."
The complainant is not charging rape, nor assault, rather she is charging that the officer used his position tocoerce her into engaging in sexual behaviour in which sheclearly did not want to participate. She further indicated that she was reluctant to make charges regarding the sexualbehaviour of a police officer to the police because she wouldnot be believed and, indeed, that proved to be the case.From the testimony of both the complainant and the officer,there was no suggestion of sexual satisfaction for thecomplainant nor any favours received. It is difficult to understand what motivation was imputed in the suggestion thatshe engaged in this conduct willingly. Although there isobviously a moral question in regard to how human beingstreat each other that is not the consideration of this body.
It is our consideration, however, how members of the police,when they are recognized as police officers, treat others.At any level this type of conduct is reprehensible andcertainly never more than when it is engaged in by personswho are sworn to safeguard and protect. Within this framework and recognizing the authority vested in policeofficers, they must be expected to engage in a higherstandard of conduct than is required of the citizenry atlarge. It is clear from current research that there is a difference in the perceptions of some men and women as towhat constitutes consent and with that in mind P.C. Crozier has been given the benefit of the doubt for his pastbehaviour but his attitude does not bode well for his future behaviour. However, since the trier of fact is in a betterposition to evaluate the evidence of the parties, we will notinterfere with the Presiding Officer's ruling but, commendall triers of fact in similar situations to be particularlysensitive to the interaction of complainant and officer andthe effect of the imbalance of power on this relationship.
Decision:
- For the above reasons the appeals against allconvictions are denied.
Penalty:
- Although the Notice of Appeal raised the questionof the appropriateness of the penalties imposed, the matterwas not seriously argued before us. We have reviewed the reasons given by the reducing the and can find no justification for Hearing Officer penaltiesAccordingly, this branch of the appeal is dismissed. imposed.
Effect of Outstanding Appeal on Second Conviction:
There is a second appeal regarding this officer,questioning the penalty imposed in a subsequent hearing whichrelied upon the progressive discipline principlenotwithstanding that the present conviction and penalty were under appeal at the time. Counsel referred us to the rule established in the criminal law context under which a conviction and penalty operates from the time of impositionregardless of the existence of an impending appeal. We endorse such a principle for Police Act charges and agreethat should any convictions or penalties be modified onappeal, the body hearing that appeal, on motion by theofficer's counsel, could then decide if the second sentenceought to be altered.
The appellant argued that the Presiding Officer, inimposing this subsequent penalty, took into account theprevious convictions and penalties. Since we have denied those appeals, this appeal is also denied.
DATED THIS 29TH DAY OF JUNE, 1993.
per W.D. Drinkwalter, Q.C.,