ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
PROVINCIAL CONSTABLE T.J. CLARKE
Appellant
-and-
ONTARIO PROVINCIAL POLICE
Respondent
DECISION
Panel: Dean E. Peachey, Member Bob Saracino, Member
Hearing Date: October 5, 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: Dean E. Peachey, Member Bob Saracino, Member
Appearances: Heather Hutchison, Ontario Provincial Police Association, Counsel for the Appellant Inspector Michael Shard, OPP, Counsel for the Respondent
Hearing Date: October 5, 1995
Summary of Facts:
This is an appeal of a conviction of Discreditable Conduct, dated October 4, 1994, of Constable Todd J. Clarke by the Ontario Provincial Police, and an appeal of the penalty of loss of eight hours time.
On November 4, 1993, Constable Clarke was present at the sentencing of a friend and fellow officer, Brandon Weir, who had been found guilty of a sexual assault against a woman with whom Mr. Weir had lived common-law for a number of years. After the sentencing proceeding, Constable Clarke stood outside the courtroom doors discussing the sentence with a group comprised of his wife Carol Moore-Clarke, William Weir the father of Brandon Weir, Kim Snow a sister of Brandon Weir, and Millie Thomas the girlfriend of Brandon Weir.
Accompanied by a victim witness assistant, the assault victim arrived late for the sentencing. She arrived at the courtroom doors while the group that included Constable Clarke was standing there. She would later testify at the disciplinary hearing that while she was standing there facing the empty courtroom Constable Clarke said to her, "He's not in there, honey." Her further testimony was that she turned to walk away and said "Ridiculous person" in response to Constable Clarke. She then heard a male voice say "You're a bitch." Her back was to the group when the "You're a bitch" comment was made, and she did not observe who made the comment. She said the comment was made in an angry tone and that the voice making the comment sounded like Constable Clarke, who had just spoken to her. She said that the voice did not sound like the voice of the other male in the group, William Weir, with whom she was also familiar. She would testify that the was "99% certain" that Constable Clarke made the comment, and that the only thing that prevented her from 100% certainly was the fact that she was not looking at him when the comment was made.
Based on this allegation, Constable Clarke was charged with Discreditable Conduct contrary to the Code of Conduct contained at R.R.O. l990, Reg. 927. He denied making the comment in question. At the disciplinary hearing for Constable Clarke, William Weir admitted to saying "There's goes that lying bitch" as the victim and the victim witness assistant were walking away.
In his decision, the Hearing Officer found that it was Constable Clarke who called the victim a bitch. In his comments at sentencing, the Hearing Officer indicated that this decision was based on the congruence between the testimony of the victim and that of Mary-Lou Ferretto, the victim witness assistant. The Hearing Officer also found discrepancies in the testimonies of Constable Clarke and William Weir, and noted that neither of them had acknowledged Mr. Weir as the author of the offending comment to the investigating officer during the course of the investigation, yet both of them did so at trial.
Arguments:
Representing the Appellant, Heather Hutchison noted that in this matter the testimony of the prosecution and defense witnesses were in direct conflict. She acknowledged that it is not the role of the Commission, as an appellant body, to assess the credibility of witnesses, however she argued that the Commission has a role in deciding whether sufficient evidence was presented at trial to support a conviction, and that the onus is on the prosecution to establish such evidence.
She argued that in this matter the prosecution had failed to provide clear and convincing evidence, given that: William Weir admitted to using the term "bitch" in the presence of the assault victim, neither the victim nor Mary Lou Ferretto observed directly who made the offending comment, and all of the defense witnesses denied hearing Constable Clarke use the offending term in the presence of the victim.
The Appellant also argued that the victim was not a reliable witness, given her stated negative feelings toward Constable Clarke, and her stated assumption that William Weir (the only other male identified as being in the area) would not speak about her in a derogatory manner. Ms. Hutchison noted that the Hearing Officer had given weight to the testimony of the victim-witness assistant, Mary-Lou Ferretto, as a supposed independent witness, yet Mary-Lou Ferretto was at a disadvantage in identifying the source of the comments, as she was unfamiliar with the voice of either William Weir or Constable Clarke. She also noted that Ms. Ferretto and the assault victim had differing recollections of exactly what was said.
Finally, with regard to penalty, Ms. Hutchison argued that the loss of eight hour's time was excessive, given the officer's clear record.
Responding to the appeal, Inspector Michael Shard argued that it is not appropriate for the Commission to reconsider whether the evidence that was presented to the Hearing Officer was clear and convincing, based solely on a transcript of that evidence. He asserted that the issue on appeal is whether the factual findings of the Hearing Officer are either self-evidently wrong or contain a clear error such that they are void of evidentiary foundation. He cited J.A. Ciotka, O.C.C.P.S., November 1994 (unreported), where this Commission recently ruled that it was not in a position to independently assess the credibility of witnesses. The Respondent also cited College of Physicians and Surgeons of Ontario v. Petrie, 1989 CanLII 4276 (ON HCJ), 37 Admin. L. R. 119 (Ont. Div. Ct.) as an example where the courts have similarly declined to substitute their judgement of credibility for the decision of disciplinary bodies where such decisions are made in good faith, and supported by the evidence and a reasonable construction of the constituent statute.
We agree with the Appellant that the Commission can review whether there has been clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of witnesses. In the matter before us, the question of whether the evidence is clear and convincing hinges largely on the credibility given to the testimony of the various witnesses. The Commission therefore has a very limited role in reviewing this matter. In our view, the decision of the Hearing Officer thoroughly reviewed the evidence, and dealt with the evidence before him in a logical and reasonable manner. His determination of credibility includes a careful review of the consistencies and inconsistencies of the various testimonies. The Appellant did not demonstrate any significant failure of the Hearing Officer to deal with the evidence before him.
We therefore decline to interfere with the finding of the Hearing Officer with respect to conviction.
With respect to penalty, we have not been presented with evidence that the penalty given is excessive or disproportionate in the circumstances, and therefore accept the statement of the Hearing Officer that in determining penalty he has taken into consideration the officer's positive employment record.
The Appeal is dismissed.
DATED THIS 23RD DAY OF NOVEMBER, 1995
Dean E. Peachey, Member Bob Saracino, Member
per Murray W. Chitra, Chair