Ontario Civilian Police Commission
In the Matter of The Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Provincial Constable Richard Harwood Appellant
-and-
Ontario Provincial Police Respondent
Decision
Panel: Karlene J. Hussey, Member Raymond G. Leclair, Member
Hearing Date: January 22, 1996 Hearing Location: Toronto, Ontario
Appearances: Ms. Heather A. Hutchinson, Counsel for the Appellant Inspector Michael Shard, Counsel for the Respondent
1This is an appeal from a finding of Discreditable Conduct made against Constable Richard Harwood contrary to Section 1(a)(i) of the Code of Conduct contained in Regulation 927 of the Revised Regulations of Ontario (the "Code"). The Appellant was convicted on November 25, 1994. In addition, it is an appeal against the penalty of demotion to Third Class Constable.
Background:
2On May 8, 1993, Provincial Constable Richard Harwood and his partner Constable Nothing worked the 4.00 p.m. to midnight shift and remained on call until 4:00 a.m. He left the detachment at 2:50 a.m. and went to Constable Nothing's residence where both officers played a game of Yahtzee until 3:20 a.m. when they responded to a call. At approximately 3:45 a.m. Constable Harwood went to his home for about 10 minutes where he picked up a bottle of rye to take with him to Constable Nothing's residence located approximately 30 feet from his home on the Grassy Narrows First Nations Territory. He arrived at Constable Nothing's residence in uniform and wearing his belt containing his service revolver. Both officers sat at the kitchen table, drank alcohol and played Yahtzee.
3At approximately 8:00 a.m. Mrs. T., the wife of Constable Nothing's cousin and a guest in his home, entered the kitchen. She testified that she observed the officers sitting at the kitchen table. Her husband (Mr. T.) was also present. There were two handguns and two piles of bullets on the table.
4As well, there was an empty bottle of alcohol and one which was partially empty. The officers were playing Yahtzee, laughing and talking. She asked them to put away the guns but her request was ignored. Her further observation was that Constable Nothing was quite intoxicated and Constable Harwood appeared to be intoxicated as he was slurring his words.
5She proceeded to the stove area of the kitchen where she could still observe the activities of the two officers. Some ten minutes later the conversation became less friendly. Constable Nothing made certain remarks to Constable Harwood about his wife which appeared to upset Constable Harwood. Constable Harwood picked up his gun, pointed it at Constable Nothing and said "Don't say that again". Constable Nothing picked up his gun and pointed it at Constable Harwood. Mrs. T. asked the officers to "stop". Both officers returned the guns to the table. Constable Nothing picked up his gun, placed a bullet in it, pointed it at Constable Harwood and pulled the trigger. Constable Nothing then pointed the gun at his own head and pulled the trigger twice. Mrs. T. screamed "stop for God's sake". Shortly after the incident at approximately 8:30 a.m. Constable Harwood left for his home.
6Constable Harwood's testimony differed substantially from Mrs. T's. He maintained that at no time did he point his weapon or even unholster it.
7Mr. T. also testified. However he stated that he did not see many of the events as he was often absent from the room.
8On May 25, 1993, Inspector Munn of the #17 District Headquarters was advised of the incident by Mrs. T. who explained that her purpose was to ensure that Constable Nothing received treatment for what she perceived to be an alcohol problem. At no time during this meeting did Mrs. T. mention that Constable Harwood also pointed a weapon.
9On June 2, 1993 Constable Harwood was asked by Inspector Munn to submit a report of the incident. He did so on June 27, 1993.
10On July 22, 1993 Inspector Munn requested of Mrs. T. a written statement on the incident. He received this on July 23rd and for the first time became aware of the nature of Constable Harwood's involvement.
11On November 9, 1993 Constable Harwood was charged with Discreditable Conduct.
Preliminary Motion:
12At the commencement of this appeal, counsel for the Appellant sought leave to introduce further evidence from Mr. T. She indicated that counsel for the Respondent had been advised of the possibility of this motion previously. Counsel for the Respondent objected to the presentation of this evidence because of the potential delay and the fact that the evidence had been available at the original hearing.
13In support of this application a letter was presented describing the proposed new evidence. It was dated August 14, 1995. The letter was received at the offices of the Ontario Provincial Police Association Legal Services on August 28, 1995. The Appellant's factum was received by the Commission on December 5, 1995 but without any reference to this new evidence. No reason was provided for the delay and unfortunately, no case law was submitted in support of the request.
14Counsel referred the Commission to subsection 63(2) of the Police Services Act (the "Act") which states:
The board shall hear the appeal on the record but may receive new or additional evidence as it considers just.
15Section 67 of the Act, provides that section 63 applies to appeals heard by the Commission.
16The Act does not set out the factors to be considered in determining whether or not it would be "just" to receive new or fresh evidence. However a similar question was considered by the Supreme Court of Canada in Palmer and Palmer v. R. 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Although the discretion of the Commission under subsection 63(2) of the Act, is somewhat wider than appellate courts under the Criminal Code the Commission believes that the decision in Palmer highlights the relevant principles.
17In particular at page 775 Mr. Justice McIntyre states:
(1) 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.
(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.
18The witness in question (Mr. T.) was asked to testify voluntarily at the original hearing, as to the events of the morning in question but was unwilling. This witness' first appearance was delayed in order that he could consult with a lawyer and obtain independent advice. His second appearance was also delayed so that he could consult with his doctor. He finally agreed to testify after a bench warrant was issued. Mr. T. now claims that his original evidence was guarded and a recent change in personal circumstances permits him to offer evidence freely.
19The Adjudicator found the original evidence of Mr. T. to be incapable of belief and in fact concocted. Rather, he accepted the version of Mrs. T. a witness whom he found to be completely credible and convincing.
20Leaving aside the question of due diligence and accepting the potential relevance of the "new" evidence in question we believe the Adjudicator was in the best position, having received the original viva voce evidence and having seen all other witnesses, to determine the credibility of Mr. T. We find no reason to alter his findings. Further, Mr. T. was cross-examined at some length. Re-opening a portion of the original proceedings by admitting this evidence is neither just nor is it in the interest of justice. It would not affect the status of the Appellant. The evidence therefore is not admitted.
The Appeal:
21Constable Harwood appeals the disciplinary decision on the following grounds:
There was not clear and convincing evidence presented at the hearing sufficient to convict the Appellant.
The Adjudicator failed to give sufficient consideration to the evidence given at the hearing by Constable Harwood in determining what had occurred at the residence of Constable Nothing which contradicted the evidence of Mrs. T. on many important evidentiary issues.
The Adjudicator appears to have erred in giving undue weight to the evidence of Mrs. T. for the reason that she held a responsible employment position.
The penalty of a demotion to third class constable is harsh and excessive when adequate consideration is given to his previous good employment record, the character evidence submitted on his behalf and the evidence presented as to the duties performed by him following his conviction.
The Arguments:
22In her oral submissions, counsel for the Appellant argued that Mrs. T. was not a neutral observer. She further argued that Mrs. T.'s version of what took place on the morning in question differs substantially to that of Constable Harwood's who maintained throughout the hearing that he did not point his gun. There was also doubt in Mrs. T.'s testimony as to the sequence of who pointed the gun first and counsel argued that if this evidence is not clear then it should not be accepted.
23Further, it is submitted that the fact that the allegations against Constable Harwood surfaced two months after the event indicates that this evidence is not reliable. This should have been brought to the attention of the Ontario Provincial Police at the time of the original complaint.
24Counsel submitted that the officers were tired after being up all night and under a tremendous amount of stress working in a difficult environment.
25Counsel for the Respondent argued that Mrs. T.'s reason for reporting the incident was clear. Help for Constable Nothing was her only motive. She was asked to submit a written account of the incidents after two months had transpired and she felt obliged to include all the details of the occurrences of the morning of May 9th, including the participation of Constable Harwood.
Decision:
26The Commission recognizes that the Adjudicator is best placed to assess the credibility of the witnesses. Unless the findings of the Adjudicator are either self-evidently wrong or contain a clear error so that they are void of evidentiary foundation the decision made should stand. It is clear that in this case the Adjudicator made his decision based on the weight of Mrs. T.'s evidence which he expressly considered to be the most credible. He stated in his decision that she gave graphic, unswerving and convincing evidence relative to what she heard on the day in question.
27This is in stark contrast to his assessment of Constable Harwood's testimony, which he says he found disturbing. He observed that there were significant details which were either omitted or altered by Constable Harwood and that he failed to come clean when he was given the opportunity to do so. The Commission therefore rejects the Appellant's argument that the Adjudicator failed to give sufficient weight to Constable Harwood's testimony. In fact, he considered it and rejected it based on his findings of credibility and assessment of the totality of the evidence.
28Accordingly, the conviction must stand.
29The Appellant requests that his penalty of demotion from a first class to a third class constable be reduced.
30Constable Harwood's behaviour during early morning of May 9th demonstrated a course of thoughtless and irresponsible conduct commencing with his failure to secure his firearm when he first returned home to get liquor. As well, he has breached the first undertakings of a police officer to cause the peace to be kept and prevent all offenses against the person. The firearm which is issued by the service is explicitly provided to protect the public and the officer if he perceives that his life or someone else's is in danger. Section 9 of Regulation 926 of The Revised Regulation of Ontario provides:
A member of the police force shall not draw a handgun or discharge a firearm unless he or she believes, on reasonable grounds, that to do so is necessary to protect against loss of life or serious bodily harm.
31Constable Harwood has had a significant amount of effort and expense invested in him by the provision of firearms training and handling. There are very clear procedures and policies established by the service on the subject of firearms security. His action constitutes a careless disregard for his training and a very serious breach of these policies and procedures.
32Notwithstanding his performance record, his action is so incompatible with the duties of a police officer and so harmful to the integrity of the police service that it would be inappropriate to reduce an already lenient penalty. If the opportunity was available to us, we certainly would have increased it.
33The Appeal against both conviction and penalty is hereby dismissed.
DATED THIS 15th DAY OF MARCH, 1996
Karlene J. Hussey, Member Raymond G. Leclair, Member per Murray W. Chitra, Chair