ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
PROVINCIAL CONSTABLE D.E. WILLIAMS
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: Murray W. Chitra, Chair Bob Saracino, Member
Hearing Date: Friday, May 26, 1995
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 Bob Saracino, Member
Appearances: Harry G. Black, Q.C., Counsel for the Appellant John Zarudny, Counsel for the Respondent
Hearing Date: Friday, May 26, 1995
Background:
On May 4, 1994 Constable D. E. Williams filed a Notice of Appeal with the Ontario Civilian Commission on Police Services (the "Commission") pursuant to section 65 of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the "Act").
This appeal was with respect to a finding of Discreditable Conduct made against Constable Williams on April 27, 1994 by Superintendent R. J. Fitches, Ontario Provincial Police Adjudicator (the "Adjudicator"). In addition, Constable Williams appealed the disciplinary penalty imposed on April 28, 1994. The penalty was that Constable Williams resign within seven days or be dismissed.
The Motions:
On March 3, 1995 Mr. Black filed a Notice of Motion with the Commission. The purpose of this motion was twofold. The first was to have the Commission receive additional documentary evidence with respect to Constable Williams' work performance. The second was to have the Commission hear viva voce evidence from certain individuals with respect to Constable Williams' character.
On May 4, 1995 Mr. Zarudny also filed a Notice of Motion with the Commission. He has requested an Order directing that Constable Williams hold any future salary received by him from the Ontario Provincial Police, in trust, pending the outcome of his appeal. Both motions were argued on May 26, 1995.
Introduction of New Evidence:
Mr. Black seeks leave to introduce two documents. The first is a letter from Assistant Crown Attorney Richard Garwood-Jones dated May 20, 1994. It commends Constable Williams for his work as an investigator in a Careless Driving case. The second document is entitled "Anniversary Performance Evaluation Report". It is dated September 19, 1994 and is the formal Ontario Provincial Police assessment of Constable Williams' work performance for the period from June of 1993 to May of 1994.
In support of his Motion, Mr. Black submits an affidavit from Constable Williams detailing how these documents came into his possession and his view of their significance.
Mr. Black argues that neither of these documents were available or could have been produced at the time of Constable Williams' conviction and sentencing. He asserts that this evidence is credible, will have an important influence on the outcome of the appeal and is relevant to the issue of penalty. He further argues that the receipt of such evidence would be just in the circumstances and assist the Commission in determining the appeal.
Mr. Black also seeks to have the Commission hear certain viva voce evidence. Following conviction, counsel for Constable Williams filed with the Adjudicator a number of letters attesting to his good character and work habits. The authors of these letters were neither called nor cross-examined.
Mr. Black asserts that the penalty imposed on Constable Williams was excessive and that the Commission would benefit from hearing these witnesses. He argues that they are credible, impressive, worthy of consideration and can expand on their written comments over a greater period of time.
In support of his argument, Mr. Black cites section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 as amended. It reads in part:
"15(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in court
(a) any oral testimony; and
(b) any document or other thing, relevant to the subject matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious."
He also brings to our attention cases where the Commission has permitted new evidence and the decision of the Supreme Court of Canada in Palmer v. Her Majesty The Queen (1980) 1979 CanLII 8 (SCC), 1 S.C.R. 759 with respect to the governing principles for the admission of fresh evidence on criminal appeals. Finally, Mr. Black cites a number of cases for the propositions that the rules of admissibility for tribunals should be less formal, that a lack of "due diligence" should not be a bar to the admission of fresh evidence where such evidence is essential to obtaining a just result, and that each case must be considered in the context of the overall legislative scheme.
In response, Mr. Zarudny argues against the admission of the two documents in question and the hearing of viva voce evidence from witnesses who were not called at the original disciplinary proceedings. He cites subsection 63(2) of the Act, which provides:
"63(2) The board shall hear the appeal on the record, but may receive new or additional evidence as it considers just."
Section 63 is deemed by section 67 of the Act to apply to appeals heard by the Commission.
Mr. Zarudny asserts that in the normal course of events that appeals to the Commission should be heard on the record. New or fresh evidence should be received in only the most compelling situations. In the case at hand he asserts that the information in question could have been obtained with "due diligence", would not have made any difference if adduced at first instance, that the introduction of such evidence at this late date would prejudice the employer, and for policy reasons a convicted officer should not be permitted to retry his or her case on appeal. Finally, he argues that the information in question goes to the issue of character or general reputation in the community and therefore should not be admissible. A number of cases were cited in support of these propositions.
Withholding of Salary:
The original Notice of Hearing was served on Constable Williams on April 22, 1992. He remained on duty throughout the disciplinary process. We are advised that on May 3, 1994 following his conviction and sentencing he was suspended with pay. He has collected a salary since that time.
Mr. Zarudny requests that we direct that Constable Williams hold any further pay cheques in trust pending the final outcome of the appeal. He argues that it is not in the public interest to permit an officer, who has in effect been fired, to continue to collect a salary.
In support of this proposition he cites section 16.1 of the Statutory Powers Procedures Act which authorizes a tribunal to make interim orders and subsection 25(2) which allows a tribunal to direct that an original order stayed pending the outcome of an appeal. He also draws our attention to the decision of the Ontario Court of Appeal in Myllynen v. Board of Police Commissioners of City of Peterborough (1978), 1978 CanLII 1372 (ON CA), 20 O.R. (2d) 254. This case concerned the entitlement of a dismissed officer to collect salary pending the outcome of an appeal.
In response, Mr. Black cities subsection 63(3) of the Act. He argues that the Commission's only authority on appeal is to confirm, alter, revoke or order a rehearing of an earlier decision. He states that the normal rule as reflected in both the Act and regulations, is that a constable continues to collect his or her salary pending an appeal. He argues that the facts in Myllynen can be distinguished from the case at hand and suggests to us that the decision of the Ontario Court of Appeal in Mahood v. Hamilton-Wentworth Regional Board of Police Commissioners (1977), 1977 CanLII 1405 (ON CA), 14 O.R. (2d) 708 more accurately reflects the present situation. He cites a number of other cases in support of this proposition.
Decision:
19.
We have reviewed the submissions of counsel, the record of the original proceedings and the transcript of the trial and sentencing.
Certain facts are clear. Constable Williams was represented by legal counsel throughout the course of his disciplinary proceedings. Upon being found guilty, Constable Williams' lawyer made extensive submissions as to sentence. Instead of calling witnesses, he elected to submit a detailed brief to the Adjudicator and make an oral presentation. The brief included five "Personnel Evaluation Reports" which detail Constable Williams' work performance from the period of June 5, 1989 to June 30, 1993. The tenor of all these reports is positive. As well, Constable Williams' lawyer made a specific point of noting at page 41 of the transcript:
“Probably the most important point of my entire submission today, sir, will be that Devon Williams was charged, served the 22nd of April, 1992. He was charged, he had to answer the charge on the 13th of April, 1992, about the incident that happened on October the 20th, 1991. And as I've indicated I feel that this is probably my most important submission throughout the entire process and that is, sir, that this young officer who is now 27 years of age has had this over his head for sometime now, and in spite of having a charge of discreditable conduct he has been kept on duty, he has been kept serving the public, and I submit, sir, he has served the public with credit and with honour."
This point was clearly made.
In addition to the Evaluation Reports, Constable Williams' lawyers submitted various certificates, awards, and newspaper clippings in support of his client. He provided 17 letters dated between November 6, 1989 and April 11, 1994 from both members of the public and Ontario Provincial Police. They all spoke well of Constable Williams' character and work. A number of these letters were highlighted in oral presentation.
Subsection 62(3) of the Act provides that appeals to the Commission are normally to be heard on the record. However, the Commission is also vested with the authority to "receive new or additional evidence as it considers just". This has been done in past.
The Act does not set out what factors we are to take into account when attempting to assess whether or not it would be "just" to receive either new or fresh evidence. In this respect the decision of the Supreme Court of Canada in Palmer is useful. While it deals with the issue of the admission of new evidence in criminal appeals, it enunciates certain helpful principles.
At page 775 of the decision, Mr. Justice McIntyre sets out the following four part test:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result."
These obviously must be considered in light of the function of the Commission as set out in the Act.
With this in mind, it is clear to us that Constable Williams could have called witnesses at sentencing, but chose not to do so. He elected to rely on letters of reference and oral submission. It is evident that with due diligence some or all of these individuals could have been produced. Further, it is obvious that the seventeen letters were introduced to make a point about Constable William's work and character. The point was made.
To permit viva voce evidence from these individuals would in essence be allowing a rehearing of the sentencing portion of the original proceedings. That would not be proper. Further, to allow the introduction of one additional positive letter in addition to the seventeen already presented, would seem to us to add very little. Certainly, we are not convinced that there is anything in this particular letter which might reasonably be expected to have affected the result at trial.
Accordingly, we are not prepared to receive the letter of Assistant Crown Attorney Richard Garwood-Jones dated May 20, 1994 or allow the taking of viva voce evidence from other persons whose letters were provided to the Adjudicator.
The "Anniversary Performance Evaluation Report" dated September 19, 1994 is more difficult. It was not available at the time of sentencing. It is not clear to us that it could have been produced with due diligence. The document is both relevant and credible. However, given the five similar reports provided to the Adjudicator and the specific remarks of the Constable Williams' trial counsel, we have some difficulty with the notion that its admission could have reasonably affected the result of the disciplinary process. That being said, this document is part of the formal Ontario Provincial Police record of the performance of Constable Williams. Under the circumstances, given the penalty in question, we feel it would be "just" for the panel hearing the appeal to have the benefit of his full performance record from June, 1989 to May of 1994. Accordingly, we are prepared to admit the two page document dated September 19, 1994.
The second issue to be considered is the matter of salary pending the outcome of the appeal.
Subsection 71(1) of the Act provides that a police officer who is "suspected of misconduct" may be suspended from duty. This suspension however, can only be "with pay". The one exception to this is when an officer is "convicted of an offence and sentenced to a term of imprisonment". In such situations, subsection 71(5) provides that a suspension may be "without pay".
According to subsection 71(3) a suspension, unless revoked, continues "until the final disposition of the proceedings in which the officer's conduct is at issue." The question then becomes: When does the final disposition of a proceeding occur?
Some guidance on this issue can be found at section 36 of R.R.O. 1990, Reg. 927. Under the heading "When Penalty to Take Effect", it reads:
"36. No member of the Force is subject to any penalty under this Part except after a hearing and final disposition of a charge on appeal as provided by this Part, or after the time for appeal has expired."
Thus, it would appear that a final disposition occurs either when the appeal period has expired or appeal has been concluded.
Mr. Zarudny argues that section 36 is no longer in effect given the many changes to the Act made in 1990. In support of this proposition he cites section 15(a) of the Interpretation Act, R.S.O. 1990, c. I. 11 as amended. Section 15 provides that regulations continue good and valid so long as they are not inconsistent with a substituted Act. Section 36 of the regulation is not inconsistent with subsection 71(3) of the Act. Even assuming that Mr. Zarudny is correct, it is our view that the general rule has been and continues to be that a penalty imposed under the Act cannot take place until the appeal period has expired or an appeal has concluded.
However, it is evident that dismissal cases present some difficulty in the application of this general rule. This is reflected in the decision of the Ontario Court of Appeal in Myllynen. That case involved an officer seeking to recover wages from the date of dismissal until the final ruling on his appeal by the Commission.
The Court concluded at page 256 of its judgement that "once the respondent in the present case was dismissed he did not, in fact, have the status of a constable between the time of his dismissal and its ultimate confirmation on appeal." The Court went on to note that while the respondent was thus not entitled to remuneration from the date of dismissal, that the local Board could elect not to suspend a dismissed officer pending the disposition of appeal and continue to pay wages. It concluded by stating at page 257 that "The choice of alternatives regarding suspension is one to be made by a policy decision of the appropriate Board."
The case at hand is slightly different. On April 28, 1994 the Adjudicator ordered that "Devon Williams be given seven days in which to resign from the Ontario Provincial Police.
Should he fail to do so within that period, he will be dismissed." Six days later Constable Williams filed his appeal with the Commission. He was suspended with pay, but never dismissed.
The facts in this case are more akin to those in the Ontario Court of Appeal decision in Mahood. In that case, the officer was charged with a number of serious disciplinary offenses and suspended with pay. He was tried and found guilty and ordered to resign within seven days or be dismissed. He filed his appeal with the Commission five days later. The local Board then altered his suspension to one without pay. The officer subsequently was unsuccessful with his appeal and resigned. He brought civil action seeking payment of wages from the date of suspension without pay until resignation.
The Court considered the wording of subsections 26(1) and 26(3) of R.R.O. 1970, Reg. 680. These are the predecessor provisions to subsections 71(1) and 71(5) of the current Act. While there are some differences in wording, the import of the provisions are the same.
The Court concluded that there was no power to suspend without pay except in the case of a sentence of imprisonment. It went on to note at page 710 of its judgement:
"A police officer, in contrast to an employee or a party to a contract, is the holder of a public office and while a municipality is obliged to pay the officer's salary, the relationship of master and servant does not exist between them ... In my opinion, it follows that a police officer is entitled to be paid his salary, not in exchange or in consideration for the duties performed, but rather as a result of holding the office."
- In response to the argument that it would be manifestly wrong to continue paying a constable who was simply awaiting the determination of an appeal after a finding of guilt, the Court stated at page 711 of its decision:
".... I have difficulty saying that it would be contrary to public policy to extend the pay of a police officer pending his appeal to the Ontario Police Commission. A police officer in the position of the appellant has already served a substantial probationary period before being appointed to the Force as a constable. The probationary period has given his superiors sufficient time to pass some judgement on his qualifications
before his status is confirmed. Is it therefore so offensive to the public good that a police officer should continue to be paid until his right to hold office has been finally determined? Depriving him of remuneration until his right to hold the office is finally determined may be an equally offensive concept."
The Court then directed that the officer be paid for the period in question.
Based on our reading of the Act, given the fact that Constable Williams was not outright dismissed, and in light of the logic of Mahood, we hereby deny the Motion to direct that future wages be held in trust pending the outcome of the appeal.
DATED THIS 5TH DAY OF JUNE, 1995.
Murray W. Chitra, Chair
Bob Saracino per Murray W. Chitra, Chair