Constable Adam Cate v. Peel Regional Police Service, 1998 CanLII 27134

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

CONSTABLE ADAM CATE

Appellant

-and-

PEEL REGIONAL POLICE SERVICE

Respondent

DECISION

Panel: Murray W. Chitra, Chair Karlene J. Hussey, Member

Hearing Date: December 12, 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:

Murray W. Chitra, Chair Karlene J. Hussey, Member

Appearances:

Harry G. Black, Q.C., and Joanne E. Mulcahy, Counsel for the Appellant Paul S. Jarvis, Counsel for the Respondent

Hearing Date: December 12, 1997

1. Constable Adam Cate appeals three findings of discreditable conduct, contrary to section 1(a)(i) of the Code of Conduct (the “Code”) found at R.R.O. 1990, Reg. 927 by Superintendent G. Crowell (the “Hearing Officer”) on May 2, 1996.

2. As well, Constable Cate appeals the penalties of forfeiture of five days pay, demotion from first to second class constable and dismissal imposed upon him.

Background:

3. Constable Adam Cate, originally from Iran, left that country at the age of 17 without family. He went to England and supported himself, learned to speak English and eventually went to the United States where he studied zoology at the University of Alabama for two years. His studies there were curtailed, because while he was on vacation in Canada in August 1979, the political uprising in Iran occurred and he was unable to return to the United States. He successfully obtained landed immigrant status in Canada and supported himself by working his way from a dishwasher to the assistant general manager of the Holiday Inn in Calgary.

4. In 1986, Adam Cate worked as a correctional officer in Calgary and in 1987, he joined the Peel Regional Police Service (the “Service”) where he was assigned to 11 Division. He was transferred to 22 Division in 1993 after he filed a complaint that his locker had been vandalized. He completed both the intermediate and advanced level police training, the special investigative training course as well as examinations for promotion to the rank of sergeant.

5. In August 1994, the Service received a complaint alleging that Constable Cate had made sexually explicit comments to a young woman. This complaint prompted an investigation, which led to the creation of a list of 2,047 women between the ages of 15 and 64 with whom Constable Cate had come in contact during the course of his employment. This information was generated from Constable Cate’s notebooks and computer records.

6. An interview sheet was developed and four detectives were assigned to this investigation. The lead investigator was Detective Barton. The officers began a telephone survey of the 2,047 women. They were asked whether they remembered a contact with the Peel Regional Police on a particular day, with respect to an identified incident, whether they were satisfied with the service and whether there were comments they wished to make. They were also asked whether they remember the police officer’s name, badge number or a description of the officer and whether there was any subsequent contact. All answers made were recorded on the interview sheets.

7. In addition to this list, the investigators made direct inquiries of female employees of about forty gas stations in the Brampton city limits.

8. During the course of the investigation there were comments made to Constable Cate by some of the women surveyed that the questions were not neutral. Specifically one woman advised Constable Cate that she had been asked whether she remembered being stopped by a male officer on a particular date for a traffic violation and whether she was harassed in any way. Constable Cate spoke to Staff Sergeant Dwyer about these comments and he passed on the concern to the investigators.

9. The investigation generated four new complaints. Forty to fifty women offered complimentary comments on the manner in which Constable Cate had conducted himself. On January 9, 1995, charges of misconduct were laid for the original complaint, which prompted the investigations, and for the other four complaints arising from the telephone inquiries.

10. During the second week of January, Detective Barton, who by then had been transferred, was asked to return to deal with a space problem caused by banker’s boxes that contained the results of the telephone inquiries. He did so by destroying the interview sheets and kept only the names and addresses of the persons contacted.

The Motion:

11. Prior to the commencement of the disciplinary hearing, Counsel for Constable Cate, Mr. Harry Black, requested disclosure. In a letter dated September 19, 1995 to Mr. Paul Jarvis, Counsel for the prosecution, Mr. Black noted that the disclosure he received appeared to be deficient. Among other things, he requested that he be provided with the statements taken and/or interview notes from the 2,047 women contacted in the course of the investigation.

12. The disciplinary hearing commenced on September 25, 1995. On September 28th, during the cross-examination of Detective Barton, the defence learned for the first time that the interview sheets had been destroyed. There was an ajournment to November 3, 1995. On that day, Mr. Black brought a motion to stay the proceeding on the basis that the Service had, on the eve of the hearing, destroyed key records made during the course of the investigation. Mr. Black alleged that this adversely affected Constable Cate’s right to make full answer and defence, that he suffered prejudice from the destruction and that it breached the obligation of natural justice and fairness which the respondents owed the Appellant.

13. On November 29, 1995 the Hearing Officer advised both Counsel by letter that he had obtained legal advice from Mr. L. Thomas Forbes of McCarthy Tetrault. He provided Counsel with a copy of the advice he received and invited further argument by way of written submissions. This was done and Mr. Black took issue with the independence of the legal advice having regard to the fact that McCarthy Tetrault had been retained by the Service in the past.

14. On December 8, 1995, Superintendent Crowell dismissed the motion. On March 21, 1996, Mr. Black made further submissions to stay the proceedings. On May 2, 1996, the motion was also dismissed and Constable Cate was found guilty of three of the five charges.

The Facts:

I.The particulars of the charge giving rise to the first conviction read:

During the month of January 1993, Constable Adam Cate #1336, a member of the Peel Regional Police while on duty, met with K.W. during a threatening investigation. Constable Cate arranged the meeting at a parking lot located at Hurontario Street and Highway 401. During this meeting Constable Cate made sexually explicit remarks to Ms. W. These remarks were known to be, or ought reasonably have been known to be inappropriate and unwelcome. Constable Cate’s actions have brought discredit upon the reputation of the Police Service.

15. K.W. was contacted as part of the telephone survey. She informed the detective of one encounter with Constable Cate. As a result K.W. was interviewed approximately four times both in person and over the telephone.

16. At the disciplinary hearing Constable Cate testified that in January 1993, he was investigating an incident in which threats were made on someone’s life. K.W. was a suspect. Constable Cate telephoned K.W. and told her that he wanted to interview her. She was then living in Port Stanley. He testified that she was very aggressive on the telephone and wanted to have nothing to do with him. He agreed to meet her the following day en route to her parent’s home at the car pool lot located at the intersection of Highways 401 and 10. He received permission to do so from his supervisor.

17. Constable Cate testified that he discussed with K.W. her former boyfriend (whose current girlfriend was the target of the threats) and K.W. volunteered that she was a lesbian and had no interest in men. Constable Cate stated that he was skeptical of her claim and when he expressed this she became hostile.

18. In contrast, K.W. testified that Constable Cate spoke about her sexuality and that he was aware that she was living with a woman. He asked her ‘what a woman could do for her that a man could not’. She felt frightened and unsafe with Constable Cate because of her fear of authority and because he kept crossing the line, suggesting that she should meet with him in Port Stanley or elsewhere on his days off, and that he could help her to forget about women. He did not touch her but his words made her feel unsafe. When she returned to Port Stanley she asked her landlord to put in a security system as she did not know what Constable Cate was going to do.

19. Constable Cate testified that he may have asked K.W. ‘what could a woman do that a man could not do’ as a challenge to her claim that she was a lesbian. He strongly denies that he suggested that he would go to Port Stanley on his days off to help her to forget about women. The only reference to Port Stanley that he made was with respect to her reluctance to meet him in Brampton and prior to her leaving the interview, he told her she was still a suspect and if he could prove her responsible he would go to Port Stanley to arrest her. Constable Cate testified that after his interview with K.W. the threats stopped.

20. Constable Cate’s penalty for this conviction was forfeiture of five days or forty hours off.

II. The particulars of the charge giving rise to the second conviction read:

During the month of August 1991, Constable Adam Cate #1336, a member of the Peel Regional Police Service, while on duty investigating a Break and Enter, met with N.W. During this meeting Constable Cate made sexual advances toward Ms. W. and made comments of a personal nature. These remarks constituted acts that were known or ought reasonably to have been known to be inappropriate and unwelcome. Constable Cate’s actions have brought discredit upon the Peel Regional Police.

21. At the disciplinary hearing N.W. testified that her neighbour’s house had been broken into and she was approached by Constable Cate with questions about her tenant. He returned to his cruiser to check the tenant’s name on his computer. He informed her that her tenant had an assault conviction and asked if he could look around his apartment. She agreed and Constable Cate did what she considered a cursory search while he constantly engaged her in conversation.

22. N.W. testified that in the course of the search Constable Cate commented that she looked “very fit” and that “she must be working out because she had very well toned legs”. She responded that she worked out and that she taught a squash clinic. While going up the stairs from the basement, he commented from behind her that by the “look of her legs and her butt that she was very well toned”. She told him that she played on the Toronto District and House league and he asked if it was possible to arrange a game with her. She told him she did not bring guests or novices to play.

23. Constable Cate told N.W. that he was getting out of a relationship and was living in a condominium with squash courts and that “nobody would know if you are there or not and you could do anything on the courts”. N.W. testified that this comment made her a little nervous and she thought he was propositioning her. He later asked her to write her name and telephone number in the back of his black book and again stressed his availability to play squash.

24. N.W. later told her neighbour that she was being “hit on by a cop”. She felt that way because of his comments on her physical appearance, his insistence on playing squash with her and the long and unnecessary conversation that he had with her. Later that day she called Peel Regional Police to complain and two officers came and spoke with her but nothing came of the complaint. N.W. testified that Constable Cate never contacted her after that.

25. Detective Barton testified that the two officers who attended N.W.'s house in 1991 did not file a report.

26. Constable Cate testified that he had no recollection of meeting N.W. He said that he investigated the break and enter and because of comments made by the neighbours about her tenant he attended at N.W.’s house. He conceded that he might have made the comments to N.W. to “develop a rapport with her ... making a friend ... she’s opened her house to let me look around”.

27. Constable Cate’s penalty for conviction on this charge was demotion from First Class to Second Class Constable for a period of six months.

III. The particulars of the charge giving rise to the final conviction read:

During the months of June 1994, Constable Adam Cate #1336, a member of the Peel Regional Police, while on duty, attended a Shell Service Station in Brampton, where C.M. is employed. Constable Cate entered the kiosk and began massaging Ms. M’s neck, shoulders and then down her arms and doing so touched the sides of her breasts. The physical contact by Constable Cate constituted acts that were known to be or ought to be reasonably be known as inappropriate and unwelcome. Constable Cate’s actions have brought discredit upon the Peel Regional Police.

28. The complaint leading to this charge was obtained through the direct inquiries of female employees in forty gas stations in the surrounding area.

29. In September 1994, two detectives contacted C.M. She arranged to meet them at a coffee shop and they told her it was important that she tell them everything. C.M. was asked to come in and make a statement approximately a week later, which she did on September 7, 1994. C.M. was at the police station for about two hours and signed a typewritten statement of four-and-a-half pages in length. She was told to read her statement over carefully to make sure it was accurate. She confirmed that fact.

30. On October 31, 1994, C.M. made a further statement that differed from the first. In particular, C.M. in her second statement revealed that Constable Cate

“ ... started to rub the side of my shoulder and down my arms which were by my side. I felt his arms on either side touch the side of my breast on the way down my arms ... “

31. At the disciplinary hearing Constable Cate stated that at about 3:00 a.m. on the night in question he drove into a Shell gas station on Highway 10 as a routine check on the attendant (C.M.). She acknowledged his presence and opened the door. She was friendly and welcoming. He made a comment on the romance novel in her hand and observed she had a large bruise on her neck as though she had been struck. He may have touched her neck or pushed back her hair to look at the bruise. She explained that it was an allergic reaction and he went to his cruiser to see whether he had anything in his first aid kit that would be helpful. He found nothing, parked the cruiser away from the pumps and returned to the kiosk.

32. He said he had a discussion about the security system, other officers she knew and about the contents of a lingerie magazine. The conversation was friendly, light-hearted, and at no time did she indicate that she found his presence unwelcome.

33. Constable Cate testified that they had a conversation about her sore neck and neck rubs. He began to massage her shoulders for about two minutes while she sat on a chair. He stated that at no time did she tell him to stop or that what he was doing was unwelcome. He was emphatic that at no time did he touch her breast or push her down when she made an attempt to stand. He testified that they switched places and she massaged his neck. While doing so, she observed that he was not wearing body armor.

34. Constable Cate testified that he continued to joke with C.M. about lingerie. She might have told him that her boss was coming and he left. The following night he returned. He wanted to smooth things over with her as he thought he had been out of line and flirtatious.

35. C.M. testified that she was uncomfortable with the officer massaging her neck and with his discussion of lingerie magazines. She also testified that he “skimmed” her breast while performing the massage, she did not know whether or not it was deliberate, and that she attempted to get up from the chair. She did not mention this in her first statement nor did she report the incident at the time because in her experience “cops all stick together”.

36. She stated that she poked his back and noticed that he was not wearing a bullet-proof vest. The following night when he returned, she told him that the alarm was on so that he would not enter the store.

37. Constable Cate’s penalty for conviction on this count was immediate dismissal.

Appellant’s Position:

Mr. Black, on behalf of Constable Cate, asserted that the events surrounding the investigation that led to the charges, as well as the conduct of the hearing itself, were such as to totally vitiate the fairness of the hearing and any appearances thereof. The issues are numerous and appear to fall under four general categories

The Investigation

The Appellant challenged the legitimacy of the investigation. He argued that:

a) the Service adopted an unprecedented survey method of investigation, which broadened from a complaint by an individual to an investigation into every female between the ages of 15 and 64 whom Constable Cate had come in contact in the course of his duties. This caused four additional women to be made “complainants”. At no time was Constable Cate given an opportunity to respond to the new allegations; and

b) the four detectives assigned to the investigation carried out a survey which was not neutral. Apart from the fact that the questions were suggestive, there was evidence that a woman, who had written a letter of commendation, was excluded from the survey.

Destruction of the Record

38. Counsel for the Appellant also asserted that the destruction of the record was contrary to the laws concerning these matters including the following:

Municipal Act, R.S.O. 1990 c. M. 45, s. 116

Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 s. 30

Sections 3 and 5 of Regulation 853 to the Municipal Freedom of Information and Protection of Privacy ActRecords Retention Bylaw of the Regional Municipality of Peel governing Peel Regional Police Service Regina v. Stinchcombe (1991), 1991 CanLII 45 (SCC), 68 C.C.C. (3^rd) 1 (S.C.C.) Regina v. Carosella (1997), 1997 CanLII 402 (SCC), 112 C.C.C. (3^rd) 289 (S.C.C.) Nrecaj v. Canada (1993), 14 Admin L.R. (2d) 161 (F.T.D.) Regina v. Livingstone (1990), 1990 CanLII 10960 (BC SC), 57 C.C.C. (3^rd) 449 (B.C.S.C.) Ontario Human Rights Commission v. House (1993), 67 O.A.C. 72 (Div. Ct.) Regina v. Mattingly (1994), O.J. No. 694, affirmed (1995) O.J. No. 1821 (C.A.)

39. Mr. Black argued that the effect of the destruction of the records would undermine the confidence that Officers and members of the public would have in the disciplinary process under the Police Services Act, R.S.O. 1990, c. P. 15 as amended (“the Act”). In addition, a high standard of justice is required when the right to continue one’s profession or employment is at stake.

40. The requirement that justice must be seen to be done is an essential requirement of the principles of natural justice and in this regard he referred to the following:

Spence and Spencer (1987), 1987 CanLII 985 (SK CA), 25 Admin. L.R. 90 (Sask. C.A.) R. v. McClevis (1971), 1970 CanLII 1100 (ON HCJ), 1 O.R. 42 (H.C.) Committee for Justice v. National Energy Board [1987], 1 S.C.R. 369 Dulmage and Sommer and Board of Inquiry (1994), 1994 CanLII 8773 (ON CTGDDC), 21 O.R. 356 (Ont. Div. Ct.) R. v. Sussex exp. McCarthy [1924], 1 K.B. 256

41. Without conceding the necessity to show actual prejudice, it was the Appellant’s position that the destruction of the records did actually prejudice the officer throughout the hearing. Mr. Black argued that the records may have been relevant to the following:

• the probability or likelihood that he would have committed the offences alleged;

• support his position that his comments were misinterpreted;

• rebut similar fact evidence;

• assess the bona fide nature of the questions asked in the survey;

• evidence of good character;

• counter the findings by the Hearing Officer that Constable Cate had lost the confidence of the public; and

• the issue of penalty.

The Rulings of the Hearing Officer

42. The Appellant argues that the legal advice received by the Hearing Officer is contrary to section 60(9) of the Act [now 69(13)] which provides:

“However, the person conducting the hearing may seek legal advise from an advisor independent of the police officer and the prosecutor, and in that case the nature of the advise shall be communicated to them so that they make submissions as to the law.”

43. In support of this argument counsel referred to Giles and Halton Regional Police Force (1981), 33 O.R. (2nd) 66 (Div. Crt.).

44. As well, Mr. Black submitted that the Hearing Officer did not refer to the fact that the prosecution broke the law by destroying the record, taking into consideration that in addition to the disciplinary charges, the investigation was carried out also for the purpose of laying criminal charges.

45. Mr. Black took issue with the findings of the Hearing Officer as being unsupportable on the evidence. He asserted that the Hearing Officer engaged in speculation and conjecture to support adverse comments on the conduct of Constable Cate.

Unfit Penalty

46. The Appellant submitted that the Hearing Officer erred in imposing a penalty of dismissal that was harsh, excessive, and unwarranted by the particular circumstances of the case. The facts he found were not as improper as those in similar cases where dismissal was not imposed and that there is disregard to the principle that consistency is the hallmark of fairness: Scholfield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (OPC).

47. The Appellant has submitted 39 police disciplinary cases demonstrating the unprecedented nature of the penalty for similar disciplinary infractions.

48. The Appellant also submits that the principle of progressive discipline was not properly applied and that the Hearing Officer failed to consider that Constable Cate’s usefulness to the service was not annulled by these incidents. Further, these incidents dated back to 1991 and the Service’s sensitivity course only became available to employees in 1994 and Constable Cate was only able to take this course in March 1995, after the charges were laid. He therefore had neither the benefit of the course nor a warning of the penalty consequences of such conduct.

49. Finally, Counsel for Constable Cate avers that a second set of reasons were issued after the Notice of Appeal brought to the attention of the Chief of Police that the Hearing Officer did not consider Constable Cate’s good record of service to the community and his prior good antecedents.

Respondents Arguments:

50. The Respondents oppose the appeal. Mr. Jarvis argued that the Commission ought to defer to the Hearing Officer on issues on credibility unless his or her findings are void of any evidentiary foundation. In addition, the conclusions reached by the Hearing Officer should stand absent a manifest error in principle. In deciding, the Hearing Officer is free to interpret the evidence and make factual findings using the benefit of his experience.

51. The Hearing Officer in this case made no unsupported findings of fact. There was ample evidence to support his conclusions.

Destruction of the Evidence

52. The Respondent argued that:

1. no lack of fairness existed in the case so as to vitiate the hearing; and

2. the evidence lost by the destruction of the documents was neither relevant nor admissible. It would be hearsay but in any event, the substantive content was made known to the Hearing Officer. Further, there are no allegations that Constable Cate engaged in misconduct with over 2000 women and therefore the contact sheets had no probative value in assessing whether he engaged in the specific acts of the misconduct alleged. There was also no reliance on similar fact evidence but rather on the specific testimony of the witness regarding her individual experience.

3. the destruction of the documents occurred for no improper purpose and even if the destruction was contrary to statute, the breach was a technical one with impact. The identity of the individual and their last known addresses were disclosed and it remained possible for the defence to recreate the contacts from that list.

Independence of the Legal Advice

53. Counsel for the Respondent argued that the Act specifically contemplates the Chief of Police as both Hearing Officer and designator of the prosecutor. The Act further authorizes the Hearing Officer (the Chief, if he or she chooses to hear the case) to obtain legal advice. The Act does not require that the legal advice be obtained from an advisor independent of the Hearing Officer (the Chief). The Act requires that that the advisor be independent of the police officer and the prosecutor and that the resultant advice shared for comment. He stated that the Hearing Officer committed no errors in his rulings, which were proper, and within his discretion.

Penalty

54. The Respondent submits that the Hearing Officer gave his reason for penalty orally on the record on August 2, 1996 and noted specifically that he had taken into account the submissions of both Counsels. On the same day, he provided the Chief of Police with internal correspondence reporting on the trial and his disposition in which he elaborated what those submissions had been. This, in the Respondent’s view, does not evidence impropriety.

55. The Respondent argued that there is no absolute standard by which to measure the penalty and that the Hearing Officer is best placed to assess what is appropriate. The Commission ought not to substitute its thoughts where relevant matters were fairly and impartially considered and the penalty was within the realm of those which he could have considered in support of this. The Respondent cites the following police disciplinary cases:

Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (OPC) Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) Howat and Ontario Provincial Police (1990), 2 O.P.R. 876 (OPC) Trumbley and Pugh and Metropolitan Toronto Police Service (1991), 2 O.P.R. 894 (OCCPS) Ashby and Brockville Police Service (1990), 2 O.P.R. 882 (OPC) Crozier and Waterloo Regional Police Service (1993), 2 O.P.R. 948 (OCCPS)

56. Counsel for the Respondent argued that Constable Cate was aware of Force rules, which provided the following:

No member of the Peel Regional Police Force shall exhibit or express to any person, either a member of the public or a fellow member of this force, any form of sexual harassment, including but not restricted to sexual advances, request for sexual favours, and/or verbal/physical conduct of a physical nature.

57. Further, the fact that he had not taken a sensitivity course is irrelevant to explain or mitigate his conduct.

Decision:

58. The circumstances giving rise to this appeal are extraordinary. In the Fall of 1994 Constable Cate was the subject of a complaint by a young woman. This related to comments that he was alleged to have made of a sexually explicit nature. An investigation was initiated. For some reason, it quickly expanded beyond the scope of this single incident.

59. Four experienced investigators were assigned full-time to examine every documented official contact that Constable Cate had with female members of the public during the course of his seven-year career. This resulted in over two thousand telephone interviews.

60. It would appear that the vast majority of the women contacted did not identify any concerns with Constable Cate’s conduct. Indeed, many were complimentary. The exact number or details will never be known because the original survey forms were destroyed by the lead investigator.

61. The result of this exercise was three further complaints of inappropriate comments.

62. As an added measure, the investigators interviewed the female staff of every gas station in the City of Brampton open at night. This survey of the employees of over 40 businesses resulted in one additional complaint of inappropriate comments. This complaint also involved a suggestion of unwelcome physical contact.

63. At the disciplinary hearings which followed, the original complaint and one of the complaints generated by the telephone survey were dismissed. Three convictions were registered.

64. Two of those convictions flowed from the telephone survey. They related to events which allegedly occurred in 1991 and 1993. The event in 1991 had been reported the same year to the Peel Regional Police and no action taken. The third conviction flowed from a single incident which was alleged to have taken place at a gas station in June of 1994.

65. Counsel for the Appellant has urged upon us a number of grounds of appeal. His 80-page factum contains over two hundred statements of fact and allegations of error. In essence, they deal with concerns about the investigation, destruction of records, various rulings by the Hearing Officer and the appropriateness of the penalties imposed.

66. There seems to be little doubt that extraordinary efforts were undertaken to investigate Constable Cate’s dealings with women. More individuals were interviewed or contacted than in many criminal investigations.

67. That being said, we have no difficulty with the reasonable use of surveys when serious allegations of misconduct are concerned and there are grounds to believe that there may be other victims or individuals with relevant evidence to offer. Any survey adopted must not only be fair in terms of its questions, but also must be applied in a consistent manner. There is some suggestion that the latter did not take place in this case. There is uncontradicted evidence that one of the women surveyed was asked a leading question about whether or not Constable Cate harassed her.

68. It is difficult to determine whether or not there were other examples of such error given that all of the original records of the survey results were destroyed prior to the disciplinary hearing. We find this troubling.

69. There was an obligation on the part of the Service to retain the information obtained through contact sheets. Article 1(f) of the Record Retention Bylaw of the Service defines record as:

(f) Any Record of information however recorded whether in printed form, on film, by electronic means or otherwise and includes:

1. Correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or graphic work, a photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record, any other documentary material, regardless of form or characteristics and any copy thereof; and

2. Any record that is capable of being produced from a machine readable record under the control of the Police by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the Police.

70. Schedule “B” to the Bylaw states that:

Evidence “Any record required for a Court proceeding will be retained until the proceeding and appeal period have been completed.

Working Papers consist of rough notes and preliminary drafts, calculations, typewriter ribbons and correction tapes used in the preparation of other records. These become of little value once the finished record has been produced and shall be destroyed as soon as practical.

71. It is our view that the preliminary drafts of the contact sheets would fall in the category of “working papers” used in preparation of “other records” namely, the contact sheets, and therefore subject to the retention schedule of the by-law.

72. Counsel for the Appellant argues that the destruction of these records denied his client a fair trial and adversely affected his right to make full answer and defence. In support of this position, he cites a number of cases dealing with disclosure in the context of criminal proceedings( Stichcombe, Carosella, Livingstone and Mattingly, supra).

73. We found these cases useful in determining the principles of rights and fairness but we are of the opinion that the threshold is not as high for what is essentially a labour relations matter as it is for criminal cases in which individual liberty is at stake. We are, however, mindful of the necessity that an employer, acting both as prosecutor and judge, should exercise utmost caution to see to a fair hearing for the employee and we consider the test in this instance to be whether Constable Cate was prejudiced by the absence of this evidence.

74. Counsel for the Appellant argues that the records would have been relevant to assess the likelihood of Constable Cate committing the offences and his manner of communicating. In addition, those records would have served to demonstrate that Constable Cate had not lost the confidence of the public and to assess the bona fide nature of the questions asked.

75. There was ample evidence presented at the disciplinary proceeding that Constable Cate was well regarded by a number of people with whom he had contact in the course of his duties. There was also testimony to the effect that his approach to his employment was aggressive. This was noted in his evaluation records.

76. It is clear that the Hearing Officer’s findings with respect to each charge were based on the facts presented by each complainant. The fact that there were some fifty women who had a completely different experience with Constable Cate is not probative to the material issues in this case. Further, Counsel extensively examined each complainant for Constable Cate on the nature of the survey contact and the questions asked.

77. While it is clear that the survey records should not have been destroyed, we are not convinced that their complete presence would have assisted Constable Cate in any material way in his defence. That being said, we have difficulty with the value of the results obtained by this elaborate and labor intensive process - two dated complaints essentially turning on credibility.

78. The incidents giving rise to these complaints occurred in August of 1991 and January of 1993. The hearing commenced in September 1995. The Act contemplates that complaints will be made within six months of an incident and disposed of in a timely manner. Section 69(18) of the Act specifically contemplates that a Notice of Hearing shall be served on an officer within six months of the event coming to the attention of the Service. A local municipal police services board has the discretion to extend this period if such an extension is reasonable and the public interest is served.

79. N.W. testified that she reported the incident that took place in August 1991 immediately to the Peel Regional Police Service and two officers attended at her home to receive her complaint. No disciplinary proceedings were commenced. No extension to the laying of a Notice of Hearing has ever been granted.

80. On his part, Constable Cate testified that he does not even remember the complainant nor does he recall the incident except for the notes he made on that day. This is no doubt because of the passage of time. In our view, it is neither fair nor in accordance with the Act for the Service to change its mind about acting on a complaint four years after it first came to its attention. For this reason, in our view this conviction cannot stand.

81. Similarly, there was a delay of two years and eight months from the time of the alleged misconduct giving rise to the first conviction to the time of the hearing. Notwithstanding this delay, we acknowledge that the seriousness of this allegation warranted investigation in the absence of any prior complaint. We agree with the Hearing Officer that the type of behavior in question if proven would be a “ ... violation of the basic trust placed by the public in police which results in a personal and general deterioration of that public trust”.

82. However, we are of the opinion that where credibility is at issue, as in this case, the delay is sufficient to draw an inference of prejudice: Lang v. Ramsey (1992) 1992 CanLII 7567 (ON CTGD), 11 O.R. (3d) 190 (Div. Crt.). Given this and other factors (i.e. the destruction of the initial telephone interview sheet for K.W., the manner in which some complaints were solicited and the confrontative nature of interview) we are not satisfied that the evidence presented at the hearing was sufficiently clear and convincing to establish misconduct. Accordingly, this conviction cannot stand either.

83. This leaves the event of June 1994 at the gas station with C.M. It did not arise from the telephone survey. The complaint related to a recent event. While there were different interpretations of what occurred, both Constable Cate and C.M. essentially agreed on the chronology of events.

84. By Constable Cate’s own admission, he was out of line in the incident involving C.M. The Hearing Officer gave significant weight to her and we find no errors in the conclusions that he drew from the evidence. We therefore dismiss the appeal with respect to this conviction.

85. Mr. Black also took issue with the fact that the Hearing Officer sought legal advice from a law firm previously retained by the Service and the manner in which he presented his reasons. At the time of the hearing, section 60(9) of the Act permitted the Hearing Officer to obtain legal advice from a person “independent of the police officer and prosecutor”. The assertion in this case is that the law firm used was not independent. The Commission recently considered such a claim in McClory and Hamilton Wentworth Regional Police Force (May 22, 1998, OCCPS). Simply put, unlike that case, we do not find sufficient factual foundation to take issue with the Hearing Officer’s choice of legal advisers.

86. As well, we see no error in the manner in which the Hearing Officer communicated his findings to the parties. We see nothing wrong with a Hearing Officer giving oral judgment and then subsequently preparing a written report on his or her conclusions for the Chief of Police.

87. That then leaves the matter of penalty. In the case of the incident involving C.M. the penalty imposed was immediate dismissal.

88. In Williams and OPP (December 4, 1995, OCCPS), the Commission identified three key elements to be taken into account when imposing penalty. These included the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the police force that would occur if the officer remained on the force.

89. There are other factors which can be relevant, either mitigating or aggravating the penalty depending on the particular conduct in question. They include the officer’s:

• employment history and experience,

• recognition of the seriousness of the transgression, and

• handicap or other relevant personal circumstances.

90. Other considerations could include provocation, the need for deterrence and concerns arising from management’s approach to the misconduct in question.

91. Finally, when imposing penalty it is also important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency (Schofield and Metropolitan Toronto Police).

92. The nature of the misconduct in this case is self evident. While on duty and in uniform, Constable Cate initiated an unwelcome sexually suggestive conversation with a young woman working alone at 3:00 o’clock in the morning. Constable Cate then initiated unwelcome physical contact in the guise of a “back rub”. The young woman in question was shocked, frightened and uncomfortable. When Constable Cate returned the following evening, she kept the door locked.

93. The conduct in question was inappropriate, unwarranted and a violation of proper ethical behavior. It was clearly discreditable, brought disrepute to the Peel Regional Police Service and warrants discipline.

94. At the time of the incident Constable Cate was a married 36 year old man with seven years experience as a police officer. His work record was generally satisfactory and contained seven letters of commendation. It also included one reprimand for failing to properly retain and store property and counseling for failing to notify witnesses for court.

95. Staff Sergeant Leonard Dwyer, Constable Cate’s supervisor described him as a hardworking, proactive officer with a good knowledge of the law. He identified some deficiencies in Constable Cate’s communication style which he indicated had improved. Sergeant Robert Ewles, Constable Cate’s previous supervisor described him as a capable, competent, reliable, well versed individual who required very little supervision and was generally an above average officer. He indicated that sometimes he could be a little overzealous. Retired Superintendent Joseph Terdik described Constable Cate as a hard worker and an asset to the Peel Regional Police Service.

96. Two female employees of the Peel Regional Police Service testified on Constable Cate’s behalf. They described his conduct towards themselves as always correct and professional. As well, two female citizens who had contact with Constable Cate during the course of his duties testified to both his good work and proper conduct towards them.

97. During the course of the hearing Constable Cate acknowledged that his behavior towards C.M. had been out of line. At the conclusion of the proceedings his lawyer indicated on his behalf that he wished to apologize.

98. The penalty of immediate dismissal is usually reserved for the most egregious offences, which nullifies the usefulness of the officer and causes serious damage to the reputation of the police service.

99. An example of this would be Ashby and Brockville Police Service. That case concerned a constable with six years employment who was found guilty of six counts of discreditable conduct arising from the sexual harassment of six different women. He had previously been reprimanded for two similar incidents.

100. The Commission supported the conclusion of the Hearing Officer that “It is quite clear that Ashby, although a good and useful policeman in other areas cannot be trusted to behave in a professional manner around women”. A penalty of resignation within seven days or dismissal was upheld.

101. Other cases involving less egregious behaviour have resulted in demotion. In Brayshaw and OPP (1992), 2 O.P.R. 937 (OCCPS) a sergeant, who was a detachment commander was found guilty of two counts of discreditable conduct arising from a number of unwanted sexual comments, advances and contacts with a female dispatcher and co-op student. The Commission upheld a penalty of reduction in rank to first class constable stating that “It is our conclusion that any lesser penalty than the one imposed in this case would have been inappropriate”.

102. Finally, some cases have resulted in forfeiture of time off. In Drennan and Hamilton -Wentworth Police Service (August 6, 1996, OCCPS), the case concerned an experienced constable who plead guilty to one count of discreditable conduct arising from crude and offensive remarks of a sexual nature made to a female officer. The penalty imposed on appeal was forfeiture of 45 hours time off.

103. To our mind, the circumstances of the case before us while serious, do not fall under the category of the most egregious offence. Further, while this incident has no doubt brought discredit to the Service, we are not satisfied that it establishes that Constable Cate cannot be trusted to behave in a professional manner towards women. Further given his work history and the testimony of Staff Sergeant Dwyer, Sergeant Ewles and retired Superintendent Terdik we do not believe it correct to conclude that his usefulness as a police officer is exhausted.

104. Accordingly, the penalty of immediate dismissal is overturned. We hereby substitute a penalty of demotion to the rank of second class constable for a minimum of six months. As well, we direct that as a precondition of returning to rank of first class constable that Constable Cate successfully complete a suitable training program on prevention of sexual harassment to be selected by his Chief of Police.

DATED THIS 17TH OF JULY 1998.

Murray W. Chitra Karlene J. Hussey, Chair, OCCPS Member, OCCPS