ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CONSTABLE W.D. SILVERMAN Appellant
-And-
ONTARIO PROVINCIAL POLICE Respondent
DECISION
Panel: Karlene J. Hussey, Member Raymond J. Silenzi, Member
Hearing Date: Wednesday, April 2, 1997 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 J. Silenzi, Member
Appearances: Heather Hutchison, Counsel for the Appellant Inspector Michael Shard, Counsel for the Respondent
Hearing Date: Wednesday, April 2, 1997
- Constable Silverman appeals from a conviction of discreditable conduct and the corresponding penalty of five days without pay, imposed by Hearing Officer Superintendent R.J. Fitches (the “Hearing Officer”) on January 12, 1996.
Background:
The facts upon which these disciplinary proceedings are based flow from the relationship between Constable Silverman and another Ontario Provincial Police officer - Constable Perry Johnson. The history and nature of this relationship is complex, but bears describing as it is central to this appeal.
Constable Johnson was transferred to the Forest Detachment in January of 1991. Constable Silverman, a member of the platoon to which he was assigned, was asked to assist in Constable Johnson’s orientation. Constable Silverman and Johnson were often on patrol together. They quickly developed an off-duty friendship and Constable Johnson was invited to the home of Constable Silverman, introduced to his family, and was made to feel welcome. On at least one occasion, Constable Johnson whose residence location required that he commute, stayed overnight at the Silverman home.
In April of 1991, Constable Johnson bought a home in Forest. Constable Silverman helped with the move and with work on the house. Constable Johnson and Silverman began to spend a considerable amount of time together cross-border shopping, golfing, and generally socializing. They became close friends, and were comfortable discussing all topics including graphic details of Constable Johnson’s sexual activities with his girlfriends and games of a sexual nature with his close male friends. Such discussions often took place when the officers were on patrol. Constable Johnson admitted that he was the primary contributor to such discussions.
Constable Johnson states that Constable Silverman began to touch him casually around July of 1991. Constable Johnson described this touching as mild and much like invading one’s space. This was his description of all touching which occurred on duty.
Constable Silverman had a swimming pool in which Constable Johnson spent much time. The officers often engaged in horse-play and wrestling around the pool during which time Constable Silverman sometimes grabbed Constable Johnson by the genitals. Constable Johnson on a couple of occasions did the same thing to Constable Silverman. Constable Johnson claims to have been uncomfortable with this grabbing, and tried to block the attempts, but did not verbally communicate this to Constable Silverman. He did, however, tell him that he was uncomfortable wrestling, not wanting to hurt Constable Silverman’s feelings. At this point Constable Johnson characterized Constable Silverman as a generally affectionate person, and did not consider the touching to be sexual in nature.
Constable Johnson recalls telling Constable Silverman at the golf course that he was “uncomfortable with the touching of the buttocks or the thigh” in order to get his attention.
Constable Johnson states that the casual touching continued throughout the fall and winter of 1991. Constable Johnson stated that when they were both on duty together he positioned himself in the patrol car to minimize contact, but he did not explicitly tell Constable Silverman that he objected to the touching.
The friendship between the officers and between Constable Johnson and the Silverman family continued. The officers shared meals, watched television and socialized, activities which often included Constable Johnson’s girlfriend. Constable Johnson and his girlfriend exchanged gifts with Constable Silverman and his family at Christmas.
The officers planned a three-day golf vacation in Myrtle Beach, South Carolina in March, 1992. They shared a hotel room. On the third night of the stay, Constable Silverman instigated a wresting match with Constable Johnson, during which he grabbed at Constable Johnson’s groin. Constable Johnson expressed some objections and the wrestling match continued for ten minutes, until Constable Silverman’s neck was injured. Constable Johnson massaged Constable Silverman’s neck, and that ended the incident.
The friendship continued, but over time Constable Johnson became noticeably cool towards Constable Silverman. When asked by third parties why Constable Johnson was changing in attitude towards Constable Silverman, he did not comment. However, he did relate the details of his relationship with Constable Silverman to his fiancee.
Over time, the off-duty social activities between the officers became limited to golfing and swimming occasionally at the Silverman pool. However, on one instance Constable Johnson accepted an invitation to attend a baseball game with Constable Silverman and his son. On the way back from the game, Constable Silverman reached over and tried to put his hand on Constable Johnson’s genitals. Constable Johnson grabbed Constable Silverman’s hand, bent it back, and let go. The rest of the trip continued without any comment on the incident.
Sometime after this event, the friendship began to noticeably deteriorate, and in November, 1992 Constable Silverman approached Constable Johnson’s mother to find out what was wrong. She advised Constable Silverman to talk to her son. Constable Silverman arranged a lunch with Constable Johnson. Before Constable Silverman could discuss the state of the friendship, Constable Johnson stated that there was no problem with Constable Silverman, and that he had simply been very busy planning his wedding. After driving Constable Johnson home, Constable Silverman was invited in for a cup of tea. Constable Johnson instigated a snowball fight which ended in a wrestling match, and laughter. The relationship, however, remained cool.
In April of 1993, Constable Silverman agreed to take the position of Acting Sergeant. Constable Johnson was on a different shift in another platoon. Constable Johnson had disclosed by this time some concerns about his relationship with Constable Silverman to his immediate supervisor, Sergeant McDonald. He indicated that he did not wish to hurt Constable Silverman’s feelings but he felt he could not work with or around him. This was done discreetly. Constable Silverman went to Constable Johnson’s home to watch a ball game and where he told him that he had accepted the position.
The relationship between the officers continued without any specific incident until late summer. On August 30, 1993, Constable Johnson was scheduled for boat duty. Constable Silverman volunteered to accompany him. Constable Johnson convinced the secretary to tell Constable Silverman that he was on patrol that day, and not on the boat. Apparently it was tradition that a marine student be thrown into the water at the year end. Constable Johnson indicated that he felt he had to lie, and to ask the secretary to lie in order that the marine student not be put in the position of being thrown out of the boat. Later that evening, Constable Silverman approached Constable Johnson to determine why Constable Johnson had asked him to accompany him on marine patrol, and then decided to avoid him. Constable Johnson explained that he did not want the student thrown in the water. Constable Silverman accepted this explanation.
Constable Johnson then related to Constable Silverman all of the incidents of touching over the past two and a half years, and stated that it had to stop because of the effect it was having on his life. Constable Silverman asked if the friendship would continue. Constable Johnson told him it had ended. Constable Silverman testified that had Constable Johnson said something like this earlier, the touching would not have continued. He further stated that except for the one occasion on which Constable Johnson indicated his discomfort with wrestling by the pool, this was the first time that Constable Silverman was told that this touching was a problem.
The following day Constable Silverman asked Constable Johnson to accompany him to the sergeant’s office where Constable Silverman apologized to Constable Johnson. Constable Johnson seemed to accept the apology, but reiterated that the friendship had ended.
Constable Silverman was notified by Sergeant Major Edginton on Friday, September 19 of 1993, that he was to report to the Chatham District Headquarters. There, he was given a written statement by Constable Johnson. This was the first time that Constable Silverman became aware that a formal complaint had been filed. Constable Silverman was removed immediately from his rank as Acting Sergeant, and was reassigned to a Chatham Crime Unit desk job.
On February 17, 1994 Constable Silverman’s request for a transfer to the Grand Bend detachment was accepted. He requested this transfer at the suggestion of Superintendent Randall. At this time, he was told that the matter in question was not disciplinary, and instead was a private matter going to mediation. It was Constable Silverman’s understanding that the transfer was the resolution to the complaint.
A mediation meeting was held in Toronto on April 20, 1994. Sergeant McDonald and Constable Johnson met with the mediators to review the statement, and then with Constable Silverman. A second day of mediation was scheduled, prior to which Constable Johnson withdrew his agreement to participate in the mediation, which was then cancelled.
On May 30, 1994 Constable Silverman was charged with the offence of discreditable conduct contrary to section 1(a)(i) of the Code of Conduct (the “Code”) contained in Regulation 927 made under the Police Services Act, R.S.O. c.P. 15 (the “Act”).
The particulars of the allegation against Constable Silverman was that:
From approximately January 1991 until approximately September 1993, while serving as a Provincial Constable at Forest Detachment, Constable Silverman had repeated contact with Perry Shawn Johnson, a Provincial Constable also serving at Forest Detachment. That physical contact occurred both on and off duty and included, but was not to limited to, touching on the thigh, buttocks and genitals. That physical contact was known to be, or ought reasonably have been known to be inappropriate or unwelcome.
- After a number of days of hearings, Constable Silverman was found guilty and assessed the penalty noted earlier.
Appellant’s Arguments:
In her submission on behalf of the Appellant, Ms. Hutchison requested that the Commission set aside the decision made by the Hearing Officer and reverse the finding of discreditable conduct. Her submissions were the following:
There was not clear and convincing evidence presented at the hearing to substantiate a finding of guilt and the Hearing Officer erred in that he characterized the acknowledged touching by Constable Silverman as sexual harassment.
(a) This touching occurred over a two and a half year period during an intense friendship between two consenting adults. Constable Johnson was a voluntary participant and an active contributor in maintaining the relationship. He actively engaged in sexual conversations and games with Constable Silverman and by his own admission he was a main contributor to those sexual conversations which took place while on duty in the police cruiser.
(b) There was no definitive assertion that the sexual touching was unwelcome until August 1993 whereupon Constable Silverman immediately ceased these actions. There was some obligation on the part of Constable Johnson to give clear indication or to verbalize his concerns with this relationship. Constable Silverman had no way of knowing that this was or was likely to be unwelcome as the consent or lack thereof could only have been apparent from Constable Johnson’s conduct. It is clear that Johnson was not coerced into accepting the situation and he could have terminated his very frequent off-duty activities with Silverman.
- The majority of the sexual touching incidents took place while the constables were off-duty and those incidents which occurred on-duty took place between two consenting adults and in circumstances where no one other than the two people involved had any possibility of observing them and so were not discreditable or likely to bring discredit upon the OPP.
(a)The Hearing Officer erred in attempting to link the off-duty activities with the on-duty activities and to conclude that as a result of these activities there was a poisoned work environment. There were only two incidents of on-duty touching; once in the patrol car and once in the office and the latter was not regarded by Constable Johnson as offensive as he described that incident as “Wayne’s way”.
(b) The Police Services Act has no jurisdiction in personal matters involving two consenting adults as part of the charge of discreditable conduct. Constable Johnson continued to voluntarily spend time with Constable Silverman off-duty while these incidents occurred. Under these circumstances the OPP ought not to have any interest in this matter.
The Respondent’s Argument:
In response to the Appellant’s argument, Inspector Shard submitted the following:
This is not an appropriate stage to attempt to re-weigh the testimony presented at the hearing and reassess whether the evidence was clear and convincing. The issue should be whether the adjudicator’s reasoning is self evidently wrong or contains a clear error.
The question of whether or not the conduct at issue is discreditable must be considered in the context of whether discredit is likely should the public become fully aware of the matter.
In making the determination the Officer’s conduct must be measured by a higher standard than that of the ordinary citizen.
The Police Services Act does not preclude the laying of a charge based on a Police Officers off-duty conduct if this conduct detrimentally affects the employer’s reputation and that the Police Services Act would not be effective in protecting the reputation of the OPP if the discipline provisions were restricted to on-duty conduct.
Constable Silverman ought reasonably to have known that this behaviour was unwelcome. That onus should not be on Constable Johnson. He was told by Constable Johnson at a golf course that he was uncomfortable with the touching. Constable Johnson was not confrontational and he preferred to avoid the situation rather than hurt Constable Silverman’s feelings. After the relationship changed this should have alerted Constable Silverman to Johnson’s discomfort.
In support of these arguments, Inspector Shard brings to our attention Williams and OPP (December 4, 1995, OCCPS), Trumbley and Flemming, (1986) 1986 CanLII 146 (ON CA), 55 O.R. (2nd) 570 (C.A.) p. 590. And Bowles and Post et al (1985) 1985 CanLII 755 (BC SC), 16 D.L.R. (4th) 591 (B.C.S.C.).
Decision:
The issue before the Commission is that of discreditable conduct which is defined by the Police Services Act as acting “in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force”.
The incidents which occurred off-duty were the focus of the Police Services Act charge. The contact which took place in the office while the Constables were on duty was described by Constable Johnson in his testimony as non-sexual and “more of an invasion of personal space”. The touching which occurred in the patrol vehicle were also described by Constable Johnson as casual touching although he was uncomfortable with it and did try to avoid the contact. However, he saw this as “Constable Silverman’s way” and he testified as follows:
I was uncomfortable with this but perhaps you know there are quirks about many people that you are friends with and you attempt to deal with them, ignore it and you know again I respected him as a Police Officer and his family ...
- The off-duty touching was the more troubling to Constable Johnson and the Hearing Officer in his decision concluded that the physical contact which occurred on-duty would have been inoffensive but for the off-duty contact. It was therefore because of the off-duty activities that the Adjudicator made the finding of sexual harassment. In his reasons for the decision the Adjudicator had this to say:
In light of Provincial Constable Silverman’s off-duty conduct and Provincial Constable Johnson’s attitude towards it, what would have been inoffensive behaviours in the workplace, prior to his sexual aggression, such as casual touching or his standing close to P.C. Johnson became unwelcome attention and/or behaviour in P.C. Johnson’s mind, thus harassment. The cumulative effect of Provincial Constable Silverman’s conduct was that it poisoned Provincial Constable Johnson’s work environment. Whereas he habitually attended at the detachment on his off-duty time his testimony indicates that as a result of his feelings toward Provincial Constable Silverman’s conduct, he avoided the detachment whenever he saw Provincial Constable Silverman’s vehicle parked there.
We agree with Counsel for the Appellant that the Adjudicator erred in attempting to link the off-duty activities with the on-duty activities and to conclude that the work-place environment was poisoned. The evidence indicates that it was Constable Silverman’s presence that offended Constable Johnson whether or not in the workplace. Constable Johnson testified that he would avoid meeting Constable Silverman by waiting outside of a grocery store until he came out and that passing him on the road was uncomfortable. This reaction is not unusual of a close friendship gone sour and the situation is merely exacerbated if the individuals share a work environment. The Police Service cannot be expected, nor does it have the jurisdiction, to accommodate for that situation. This does not, ipso facto, mean the work environment has been poisoned for the purposes of a finding of sexual harassment.
That being said, the jurisdiction of the Police Services Act is not limited to on-duty activities and any officer whose activities off-duty bring discredit upon the reputation of the Police Service is subject to discipline by the Service. The measure used to determine whether conduct has been discreditable is the extent of the potential damage to the reputation and image of the Service should the action become public knowledge.
Constable Johnson and Constable Silverman had a very close and personal friendship which extended to their partners and family members. It is clear that they were comfortable in each others’ company and they discussed the most private and personal of matters together. They chose to spend a great deal of time together pursuing a variety of recreational activities. Both Officers nurtured this intense off-duty relationship engaging in activities which were neither related to nor harmful to the reputation of the service. Both were willing participants in this relationship. The relationship between the officers was neither incidental to nor arising from workplace activities.
On the particular and peculiar facts of this case, it is our view that more harm would be done to the reputation of the Police Service were it to interfere with the private lives of consenting adults than would be done if the public were to be fully apprised of the private conduct of these individuals. The private off-duty conduct of Constable Silverman is not so damaging to the reputation and image of the service that discreditable conduct has been established/
This holding alone would be sufficient to dispose of the matter but, in addition, the Commission finds that there is not clear and convincing evidence to support a charge of sexual harassment.
Inspector Shard, in his submissions before the Adjudicator offered the following definition of harassment found in the Police Orders:
Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. Harassment may be verbal, physical, deliberate, unintended or unsolicited, and includes jokes, unwelcome remarks, innuendoes or teasing in such a manner to cause a person embarrassment, awkwardness or intimidation.
We accept this as a proper definition.
The Hearing Officer concluded that P.C. Silverman knew that his advances were unwelcome and as a result his actions amounted to sexual harassment. He came to this conclusion given:
The conversation at the golf course in which P.C. Johnson indicated he did not like to be touched on his buttocks to get his attention; and
The objection to the wrestling in the pool which he expressed to P.C. Silverman; and
His attempts to avoid physical contact with P.C. Silverman; and
The events at Myrtle Beach.
We have examined the evidence and have found that Constable Johnson acknowledged repeatedly that he never explicitly told Constable Silverman that he was uncomfortable with this touching. He was subtle in his suggestion of discomfort and his avoidance tactics. In an attempt to preserve Constable Silverman’s feelings, this approach, however sensitive, failed to send a clear message to Constable Silverman.
This would have been especially confusing to Constable Silverman with whom Constable Johnson was otherwise very open with discussing with him exceedingly personal matters of a sexually explicit nature. The Officers continued to spend off-duty time together even after the Myrtle Beach incident. In addition, Constable Johnson admitted that he touched Constable Silverman’s groin on two occasions in retaliation. There was no power structure which would have threatened Constable Johnson’s working conditions had he told Constable Silverman that he should stop touching him. The lack of intimidation by Constable Silverman is made more clear by the fact that Constable Johnson’s primary concern was for Constable Silverman’s feelings. Furthermore, Constable Johnson was under no obligation to be in Constable Silverman’s company off-duty.
Constable Silverman provided the opportunity for an open discussion after the incident following the ball game when he invited Constable Johnson to lunch to ask what was the reason for the change in their relationship. Constable Silverman testified that Constable Johnson pre-empted this conversation by stating that he was busy with his wedding plans and that was preventing them from getting together as often as before. Given these circumstances, the evidence is not clear and convincing that Constable Silverman knew or ought to have known that his actions were offensive to Constable Johnson.
We are unable to characterize Constable Silverman’s behaviour as vexatious because of the voluntary nature of the friendship. Furthermore, the first time that Constable Johnson honestly expressed his outrage with this behaviour Constable Silverman expressed his surprise, apologized and sought a voluntary transfer from that detachment. This event also indicates that there was no intimidation factor affecting Constable Johnson. In our view, the evidence presented is not clear and convincing that Constable Silverman’s conduct falls within the definition of sexual harassment provided by the respondent’s counsel.
While we do not advocate an approach to decisions on sexual harassment which places an unfair burden on the alleged victim, given the peculiar circumstances of this case which includes; a voluntary and intense off-duty relationship, the open forum for discussion provided by the Appellant, the admission by the respondent that the Appellant was an unusually affectionate and tactile person, the reciprocal nature of the touching and the fact that Constable Johnson admittedly failed to make a clear and explicit attempt to communicate to Constable Silverman that his conduct was unwelcome we are unable to find Constable Silverman guilty of discreditable conduct on a clear and convincing basis.
We therefore allow the Appeal, quash the finding of guilt and the penalty of five days’ pay.
DATED THIS 5TH DAY OF SEPTEMBER 1997.
Karlene J. Hussey Member, OCCPS
Raymond J. Silenzi Member, OCCPS