P.C. J.A. Ciotka v. Ontario Provincial Police, 1994 CanLII 16017

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

P.C. J.A. CIOTKA

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Murray W. Chitra, Chair Alok Mukherjee, Member

Hearing Date: Friday, October 21, 1994

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: Murray W. Chitra, Chair Alok Mukherjee, Member

Appearances: W. Michael Temple, Q.C., Counsel for the Appellant Inspector Michael Shard, Professional Standards Branch, Ontario Provincial Police

Hearing Date: Friday, October 21, 1994

1. This is an appeal from a conviction dated June 8, 1993 of discreditable conduct for acting in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police. The specific allegations relate to an altercation which occurred during off duty hours at a bar in Owen Sound. The penalty imposed by Superintendent Taylor was forfeiture of two days or 16 hours pay.

The Facts:

2. The facts in this case are not without confusion.

3. To start, it is clear that on the evening of May 14, 1992 Provincial Constable Ciotka and several fellow officers, while off duty, decided to patronize a bar in Owen Sound. All were either members of, or candidates for the Ontario Provincial Police Tactical Response Unit (TRU) who were in the city for an orientation course.

4. The officers arrived around 2030 hours. Liquor was consumed. The establishment filled to its capacity of 261 patrons. The officers were located at a stand-up bar near the dance floor. The music was loud and lights were flashing.

5. Shortly after midnight, a fight broke out between Constable Evans and Mr. Gregory Lang, a civilian. This occurred in the middle of a group of 25 to 30 people. Provincial Constable Ciotka pulled Mr. Lang away and told him to "break it up" and "go get a drink". At about the same time, Mr. William Farmer, one of the establishment's "bouncers" attempted to intervene by pulling Constable Evans away by the shirt.

6. Provincial Constable Ciotka then approached Mr. Farmer from behind and put his arm around his neck. It is at this point that the various witnesses' stories appear to diverge in a number of different directions. Rather than repeat all of the different versions, we would concentrate on the versions of Mr. Farmer and Provincial Constable Ciotka.

7. In testimony, Mr. Farmer asserted that:

1. he was wearing a black t-shirt clearly identifying himself as a member of the bar staff; and

2. while he was trying to restrain Constable Evans that Provincial Constable Ciotka put him in a "choke hold"; and

3. just about the same time, Constable Evans took advantage of this situation to punch him in the face; and

4. he shouted to Provincial Constable Ciotka that he was a "bouncer" and that he should "let him go". At some point in time Provincial Constable Ciotka said "it's OK, we're cops"; and

5. Povincial Constable Ciotka did not release him and a second bouncer "pulled" him off; and

6. in his view, while Provincial Constable Ciotka may have been a "peacemaker" at the start of the altercation "when things got hot, he went with his friend"; and

7. he was upset with Constable Evans for striking him, and might have hit him back, but did not.

8. In his testimony, Provincial Constable Ciotka asserted that:

1. he had only taken one partial alcoholic drink that evening; and

2. he saw a man in a black t-shirt throwing punches toward Constable Evans. He did not know that this man was a "bouncer" and assumed that he was a friend of Mr. Lang; and

3. he put Mr. Farmer in a "restrain hold" in order to defuse the situation and remove him from the scene; and

4. he did not see Constable Evans strike Mr. Farmer; and

5. he did not hear Mr. Farmer tell him that he was a "bouncer" at any point while he had him restrained; and

6. he did not at any point while he restrained Mr. Farmer tell him that he was a police officer; and

7. he was concerned that Mr. Farmer was aggressive and that if he did not grab him that another fight would take place.

9. Two other officers testified concerning these events. As well, two statements were read into evidence. One was from Mr. Lang and the other from a further officer who was in the bar. These were not of great help.

The Arguments:

10. Mr. Temple, on behalf of Provincial Constable Ciotka, asks that the conviction be set aside. He asserts that the conviction is not supported by clear and convincing evidence. As well, he indicates that the Adjudicator ruling on the matter did not make the necessary findings of fact (i.e. that Ciotka knew that Farmer was a bouncer or that Evans struck Mr. Farmer while he was restrained) to support such a conviction.

11. He indicates that in the absence of specific findings the evidence supports the notion that Constable Farmer was acting as a sober peace maker and cannot be sanctioned for his conduct.

12. In the alternative, he requests that, given Provincial Constable Ciotka's record, the penalty be reduced to one of reprimand.

13. Inspector Shard, forthrightly acknowledged that the Adjudicator's decision in this case did not contain many specific findings of fact. As well, he acknowledged some difficulties with the "timing of events". However, he asks that we consider the evidence as a whole and not focus on discrete events. He asserts that the actions of Provincial Constable Ciotka "in totality" brings the reputation of the force into disrepute.

14. He argues that the conviction and penalty must stand.

Decision:

15. Our decision in this case has not been an easy one.

16. The facts are less than clear. As well, the Adjudicator has made few directly expressed findings of fact or credibility.

17. In the normal course of events, it is the Adjudicator who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight or value. It is not our role or function to substitute our opinion as to the reliability of evidence given unless such evidence is self-evidently wrong or there is clear error.

18. In certain limited cases, it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest of grounds. In other words, there can be no other determination than that the conclusion of the Adjudicator as to the credibility of a witness cannot be reasonably accepted.

19. The question then to be asked in this case is, are the conclusions of the Adjudicator void of evidentiary foundation? Our answer must be no.

20. It is clear from the Adjudicator's finding that he accepted Mr. Farmer's versions of events. He describes Mr. Farmer's role as "being police officer in the bar". Provincial Constable Ciotka should not have interfered. While perhaps he was a "peace keeper" at the beginning of the fight in his dealing with Mr. Lang, he turned his attention on one of the establishment's employees rather than his fellow officer and team member. Implicit in this is a finding that Provincial Constable Ciotka either knew Mr. Farmer was a "bouncer" or, having been told, should have discontinued his intervention.

Penalty:

21. It is self evident that police officers should not be brawling in bars. That is particularly the case for highly trained members of Tactical Response Units.

22. We note however, in this case that Provincial Constable Ciotka has a fine record and has not been the subject of any disciplinary action since his appointment to the O.P.P. in 1988. Constable Evans, the other officer in this matter pled guilty and received a penalty of forfeiture of three days' or 24 hours' pay.

23. We see Constable Evans' role in these events as being more serious than Provincial Constable Ciotka's. The disparity between three and two days' forfeiture does not appear to reflect that difference.

24. Accordingly, we reduce Provincial Constable Ciotka's penalty to one day's or eight hours' forfeiture.

DATED THIS 14TH DAY OF NOVEMBER, 1994.

Murray W. Chitra, Chair

Alok Mukherjee, Member