ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
PROVINCIAL CONSTABLE W.G. NOTHING 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
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: Karlene J. Hussey, Member Raymond G. Leclair, Member
Appearances: W. Michael Temple, Q.C., Counsel for the Appellant Inspector Michael Shard, Counsel for the Respondent
Hearing Date: January 22, 1996
1This is an appeal from a finding of Discreditable Conduct made contrary to subsection 1(a)(i) of the Code of Conduct contained in Regulation 927 of the Revised Regulations of Ontario (the "Code") against Constable W.G. Nothing. The appellant was convicted on November 25, 1994. In addition, it is an appeal against the penalty of dismissal imposed.
Background:
2On May 8, 1993 Constable Nothing and his partner worked the 4:00 p.m. to midnight shift and remained on call until 4:00 a.m. Some time after 4:00 a.m. Constable Harwood joined Constable Nothing at his residence on the Grassy Narrows First Nations Territory.
3Both officers played Yahtzee and consumed alcohol. At about 8:00 a.m., officer Nothing's cousin's wife (Mrs. T.), a guest in his home, went to the kitchen and found that the officers were still engaged in these activities. Her husband (Mr. T.) was also present. The officers were dressed in uniform. Their service revolvers were on the table with two piles of bullets. Constable Nothing's gunbelt was on the living room couch. She felt that Constable Nothing was quite intoxicated and Constable Harwood appeared to be intoxicated as he was slurring his words.
4Mrs. T. testified that while she was preparing breakfast for her son, the officers' conversation became less friendly. In response to certain comments made by Constable Nothing, Constable Harwood picked up his gun, and pointed it at Constable Nothing. Constable Nothing then picked up his gun and pointed his service revolver at Constable Harwood. Both remained seated at the table. Mrs. T. testified that she asked the officers to stop and both returned the guns to the table. Constable Nothing then picked up his gun, placed a bullet in it, pointed it at Constable Harwood, and pulled the trigger. He then pointed it at his own head, and pulled the trigger twice. Constable Nothing then removed the bullet and replaced the gun on the table. He told Mrs. T. that nothing could have happened.
5Shortly after that exchange Constable Harwood left for his home. Later that morning, Mrs. T. hid Constable Nothing's revolver and bullets in various places around the kitchen. Constable Nothing fell asleep and Mrs. T. and her family left the residence.
6Constable Harwood and Mr. T. also testified as to events of that morning. Constable Harwood's testimony differed substantially from Mrs. T.'s. He maintained that at no time did he point his weapon or even unholster it. He observed Constable Nothing withdraw his service revolver from its holster, empty the cartridges from the revolver, close the cylinder and place the gun on the table. Constable Nothing then placed a single bullet into one of the empty chambers, spun the cylinder and closed it. He then pointed the gun towards the floor in the direction of the refrigerator. Constable Harwood further testified that at no time did Constable Nothing point the gun at him or at his own head.
7Mr. T. stated that he did not see many of the events as he was so often absent from the room.
8Two weeks after the incident, Mrs. T. spoke with Constable Nothing's commanding officer in the hope that the service would obtain help for what she felt was an alcohol problem. Constable Nothing was advised by his superior officer to seek counselling and to see a medical doctor, which he did. He subsequently took time-off and attended a recovery clinic for chemical dependency and alcoholism in the State of Minnesota. Constable Nothing resumed his duties in the fall of 1993. An investingation into the May 9, 1993 incident was initiated.
9Constable Nothing was charged on November 9, 1993 with "acting in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force". On February 8, 1994 notice of potential dismissal under subsection 61(4) of the Act was served on Constable Nothing.
Preliminary Motion:
10At the commencement of this appeal, counsel for the Appellant sought leave to introduce further evidence from Mr. T. He 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.
11In 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.
12Counsel 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.
13Section 67 of the Act, provides that section 63 applies to appeals heard by the Commission.
14The 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.
15In 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.
16The 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.
17The 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.
18Leaving 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 Arguments:
19The Appellant argues that there was insufficient clear and convincing evidence presented at the hearing to support the conviction. The Appellant further argued that the Adjudicator failed to give adequate consideration to Constable Harwood's testimony in order to determine what had occurred at Constable Nothing's residence on the morning in question.
20Counsel for the Respondent argues that in general, evidence fails to be clear and convincing only when it is shown that the factual findings are either self-evidently wrong or are clear errors such that they are void of evidentiary foundation.
21Specifically, Counsel for the Appellant refers the Commission to discrepancies in Mrs. T.'s evidence, and urged the Commission to find that the discrepancies undermined her version of the facts to the extent that her evidence should have been rejected. However, counsel for the Respondent contends that it was only Mrs. T.'s evidence which provides a comprehensive version and explanation of events. Further, certain aspects of Mrs. T.'s evidence are corroborated by Constable Harwood.
22Counsel for the Appellant urges the Commission to consider Mrs. T.'s motivation for reporting Constable Nothing. The respondent noted that the Adjudicator reviewed this matter and found that her motivation was to obtain help for the officer in question.
23Counsel for the Appellant argues that the Adjudicator placed excessive weight on the responsible position of employment held by Mrs. T., and insufficient weight on that held by Constable Harwood.
Decision:
24The Commission is unable to conclude that the factual findings of the Adjudicator lack evidentiary foundation. The findings of the Adjudicator clearly rest on the acceptance of the version of the evidence of one of the witnesses. The Adjudicator assessed the credibility of the witnesses before him, found one to be more credible than the others and clearly indicated why he so determined.
25The evidence of this witness as set out in the transcript is sufficient to prove the charge. The evidence of the other witnesses did in part confirm and support her evidence thereby increasing its credibility. Mrs. T.'s evidence is described by the Adjudicator as "graphic, unswerving and convincing". He determined her to be "by far the most convincing witness" whose motivation for reporting the incident was out of concern for the well being of Constable Nothing.
26The Adjudicator's conclusion that there was credible evidence to support his findings may not be overturned unless it is demonstrated that there is a manifest error in his assessment. We are unable to find sufficient reason to alter his findings of fact with respect to the events of the morning in question. The Commission, furthermore, is not convinced that the Adjudicator was in error in his decisions based on credibility. While it is conceded that a position of responsibility may enhance the credibility of witnesses in general, the Commission has not been convinced that the Adjudicator gave inequitable consideration to the respective positions of Mrs. T. and Constable Harwood. The fact that Mrs. T.'s position was noted in the Decision did not undermine the responsible position of Constable Harwood, which was self-evident.
27Accordingly, the conviction must stand.
28The Appellant argued that the penalty imposed was harsh and excessive given Constable Nothing's rehabilitation from alcoholism.
29Constable Nothing did not testify at the original disciplinary proceeding. A witness was called by the Appellant to establish both treatment and cure of alcoholism. The transcript of the evidence of this witness reveals little more than a lack of familiarity with the details of the officer's stay and treatment. Furthermore, the witness indicated that he was unable to disclose information about Constable Nothing, in the absence of a release. Such release was not provided.
30Consequently, there is no clear evidence of either alcoholism or successful treatment.
31Counsel for the Appellant requested that the penalty be reduced from dismissal to a demotion to third class constable given Constable Nothing's previous good employment record and character. The Commission has struggled with the penalty imposed by the Adjudicator. This is a case in which an otherwise satisfactory officer places a promising career in serious jeopardy as a result of one incident. The Commission is, however, of the view that in certain cases, one event, or one instance of a lack of judgment justifies termination.
32The public places great value on an orderly state, and empowers the police to infringe upon individual rights and freedoms in order to ensure observance of laws by the public. The ultimate symbol of the power vested in officers is the license to carry lethal firearms. Officer Nothing treated his firearm in a careless and dangerous fashion, under the influence of alcohol, and in the presence of a member of the public. This was a clear abuse of the power vested in him, and in direct contravention of the rules respecting the use and handling of firearms, the necessity to uphold the image of the police service, and indeed, common sense. The concern of the Adjudicator is fully justified.
33The Ontario Provincial Police has invested significantly in this officer, in the provision of firearms training and handling. Even the least damaging version of the facts shows a flagrant lack of appreciation for this investment, and of Constable Nothing's responsibility. Considering the combination of alcohol and the dangerousness of a firearm, the fact that no one was injured in this incident was merely fortuitous. Constable Nothing showed a wanton and reckless disregard for the life and safety of his partner and himself. While Constable Nothing was sober, he failed to secure his firearm. While impaired, he mishandled it in the presence of others. Even worse, he pulled the trigger of a loaded firearm.
34The Commission can find nothing in the evidence or submissions to indicate that the penalty is out of the realm of penalties to be imposed in this situation. The misconduct on the part of the officer goes to the very heart of his duties and responsibilities, and could gravely discredit the service if these facts were to be disclosed to the public and decisive action was not taken.
35The appeal against both conviction and penalty is therefore dismissed.
DATED THE 15th DAY OF MARCH, 1996
Karlene J. Hussey, Member Raymond G. Leclair, Member
per Murray W. Chitra, Chair