Constable J.R. Carmichael v. Ontario Provincial Police, 1998 CanLII 27137

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

BETWEEN:

CONSTABLE J.R. CARMICHAEL

Appellant

-and-

ONTARIO PROVINCIAL POLICE

Respondent

DECISION

Panel: Raymond J. Silenzi, Member Diana A. Jardine, Member

Hearing Date: Friday, October 31, 1997, Tuesday, January 13, 1998 and Friday, February 13, 1998

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:

Raymond J. Silenzi, Member Diana A. Jardine, Member

Appearances:

Ms. Heather Hutchison, Counsel for the Appellant Inspector Michael Shard, Counsel for the Respondent

Hearing Dates: Friday, October 31, 1997, Tuesday, January 13, 1998 and Friday, February 13, 1998

This is an appeal from a conviction of discreditable conduct made against Provincial Constable J.R. Carmichael contrary to section 1(a)(i) of the Code of Conduct contained in Regulation 927 R.R.O. 1990 as amended (the “Code”).
Constable Carmichael was convicted of discreditable conduct as a result of treating his son Matthew Carmichael in an unnecessarily forceful manner on two occasions. Constable Carmichael also appeals the penalty of dismissal imposed by Hearing Officer Superintendent R.J. Fitches (the “Hearing Officer”) on August 7, 1996.

Background:

Rob and Mary Carmichael were married January 28, 1989 and had three children. Kaylee born December 2, 1989, Matthew born February 28, 1992 and, Brandon born August 15, 1993. The charges against the Appellant concern his treatment of Matthew and Brandon Carmichael.
On April 29, 1994 Mary Carmichael took Brandon to see Dr. Burke to have his right ankle examined. The ankle was x-rayed and blood tests were taken and found to be negative. An appointment was made at the Children’s Hospital of Eastern Ontario (CHEO) for a bone scan. The bone scan revealed two broken ribs and a sprained ankle. Dr. Burke reported the injury to the Children’s Aid Society (CAS) as suspicious.
The CAS assigned Marilyn Lambert to investigate the injuries to Brandon. Detective Burch and Constable Thomas were assigned by Detective Cook to conduct an investigation into the incident.
All three visited the Carmichael home on the afternoon of April 29, 1994. The Appellant was home and was requested to give a statement. He agreed.
In his statement to the detectives the Appellant told them that when he picked Brandon up from the baby sitter, he was told that Brandon was fussy and felt tender. When the Appellant examined Brandon he found no marks or bruises, however, when he picked Brandon up by the legs to slip a diaper under him he cried. When he let go of Brandon’s leg he stopped crying.
The Appellant told Mary Carmichael about Brandon’s leg when she came home from work and the next day an appointment was made for x-rays and blood tests.
On Monday, May 2, 1994 Detective Burch and Constable Thomas arranged to meet with Mary Carmichael at her home at six p.m. Prior to this meeting Constable Thomas reported to Detective Burch that a C.T. Scan done on Brandon had revealed several additional bone fractures.
Mary Carmichael was informed of the additional injuries to Brandon and was requested to make a statement. It was during the course of this statement that Mary Carmichael first mentioned two incidents that involved Matthew.
The first incident involving Matthew happened in 1992 when they were living in White River. Matthew was approximately six or seven months old when the Appellant picked him up from the floor with one hand. Mary Carmichael asked the Appellant what caused the red marks on Matthew’s stomach and he replied, nothing.
She did not find out what caused the red marks on Matthew’s stomach until early 1994 when the Appellant told her he had picked Matthew up by the stomach
The second incident happened between January and March of 1994. The Appellant had the three children with him in his car. While pulling into his driveway his car became stuck in the snow. He left the car and carried Brandon into the house. Matthew refused and the Appellant had to go back and carry Matthew into the house. He then spanked Matthew on the bare bum.
On May 3, 1994 the Appellant was brought in to the Ottawa Detachment office for an interview. He was informed that he was suspected of causing the injuries to Brandon. He was told at this time that the children’s safety had to be insured and the Appellant was requested to vacate his home. He agreed. He was then asked to give a caution statement and volunteered to do so.
In this statement the Appellant admitted to being angry when he picked Matthew up from the floor with one hand and leaving red marks on his left side and approximately two years later having spanked Matthew on the bum.
The Appellant also described two incidents where Matthew may have injured Brandon accidentally by falling on Brandon and later possibly striking him with a baton and causing the broken ribs.
On May 6 and 7, 1994 Mary Carmichael was again interviewed by Detective Burch. During this interview Mary Carmichael described injuries to Brandon’s lip and a bump on the side of his head.
The Appellant had taken Brandon from his bed and put him in his bouncy chair and put a rattle in each hand and went out to the car. When Mary Carmichael went into the house she noticed that Brandon had a fat lip and there was a trace of blood. She also noticed a bump on the side of his head. When Mary Carmichael questioned the Appellant, he said he didn’t know what happened to Brandon. The Appellant explained that Brandon may have hit himself with a rattle and that earlier that day, Matthew had fallen against Brandon and that could have caused the bump on his head.
On October 12, 1994 the Appellant was charged with two counts of discreditable conduct, contrary to section 1(a)(i) of the Code.
The Particulars of Allegation in the Notice of Hearing were later amended by the prosecutor, Inspector Shard. In a letter to Ms. Hutchison dated October 24, 1995, the Particulars were amended to read as follows:

Count 1: Between March 1, 1994 and May 3, 1994, while off duty at your residence, you were unnecessarily forceful in dealing with Brandon Carmichael, born August 15, 1993, in that:

your actions resulted in a bruise on his head and cut lip, in early April 1994; and you spanked Brandon in an unnecessarily forceful manner, in April 1994.

Count 2: Between April 1992 and March 1994, while off duty, you were unnecessarily forceful in dealing with Matthew Carmichael, born February 28, 1992. This included, but was not necessarily limited to:grabbing and picking up Matthew by the stomach at your residence, in April or May of 1992; forcing Matthew to the ground at your residence in an unnecessarily forceful manner, in the summer of 1993; spanking Matthew in an unnecessarily forceful manner at your residence, sometime between January and March, 1994; putting Matthew into the car in an unnecessarily forceful manner at 15 Lemaistre Street in Carleton Place, Ontario, in the summer of 1993.

Assistant Crown Attorney, Douglas Brown, in his letter dated October 26, 1994 requested that the Police Services Act charges be stayed until the criminal charges were completed.
The criminal charges against the Appellant were heard in April and May of 1995 and lasted three weeks. Medical evidence heard at the trial revealed that Brandon had a calcium and mineral deficiency. Dr. Glorieux stated “To explain medically the short lived episode of fractures between March and May 1994, one may invoke a transient phase of increased bone fragility, consequence of a mineral deficiency at the time.” As a result of the medical evidence the charges against the Appellant related to Brandon Carmichael were dismissed.
The Appellant pleaded guilty to excessively spanking Matthew Carmichael and was given a conditional discharge.
Charges pursuant to the Police Services Act were resumed September 25, 1995 and continued till August 7, 1996.

Arguments:

Counsel for the Appellant propounded that there was not clear and convincing evidence presented at the hearing sufficient to convict Constable Carmichael and that in his decision the Hearing Officer failed to provide sufficient reasons for the finding of misconduct.
With respect to penalty, the Appellant contends that the penalty of dismissal is too excessive, particularly considering that the Appellant has obtained the benefit of appropriate counselling.
In a Supplementary Factum the Appellant further submitted that the Hearing Officer erred in basing his decision to convict Constable Carmichael of the two allegations involving Matthew on the two statements taken from the interviews of Mary Carmichael on May 2, 6 and 7, 1994. Specifically, it was argued that the Hearing Officer erred in admitting these statements:

a) on the basis that anything that is relevant is admissible. The Appellant asserts that while the Statutory Powers Procedures Act allows hearsay evidence, such evidence is not admissible where the result would be a denial of natural justice; and

b) without requiring a voir dire to determine if this evidence met the tests of necessity and reliability. It was submitted that if a voir dire had been held this evidence would not have met the test of necessity and reliability and would not have been admitted into evidence.

It was submitted by the Respondent that it is not appropriate on appeal to attempt to re-weigh the testimony presented at the hearing and re-assess whether the evidence was clear and convincing, particularly as the factual findings in this case depended so heavily upon the assessment of credibility. Inspector Shard maintains that the issue on appeal should be limited to whether the Hearing Officer’s reasoning is self-evidently wrong or contains a clear error such that it is void of evidentiary foundation.
It was also submitted that the Hearing Officer’s conclusions with respect to penalty should not be overturned unless they are decidedly unfair. The Respondent contends that the Hearing Officer is the most appropriate person to assess penalty due to the force-specific issues involved in assessing the need for general deterrence and/or protecting the image of the Ontario Provincial Police.
With regard to the admissibility of Mary Carmichael’s statements in a Supplementary Factum, the Respondent advances that the rules of procedural fairness which govern these proceedings are less stringent and that hearsay evidence is generally admissible in a Police Services Act hearing if it is relevant and that the evidence contained in the statements was clearly relevant to the charge. Furthermore, the admission of the statements was entirely “fair” in the specific circumstances of this case, in that there was clearly a strong public interest in the admission of the statements, and the defence was able to test them fully and completely, in that Mary Carmichael was available to testify in relation to the statements and did in fact do so. It was argued that the Hearing Officer needed to hear all the evidence, including Mary Carmichael’s statements, if he was to properly weigh the evidence and determine the issues in this case.
Ms. Hutchison further responded that the admission of these statements is not a breach of natural justice and that the statements would meet the “Reliable and Necessary” test. However, the Respondent also argued that the Appellant was incorrect in applying the “Reliable and Necessary” test, which is an exception to the criminal hearsay rule, to these proceedings, in the same form as it is applied in the criminal courts. While these are relevant concepts and deserve to be considered, they are criminal notions and the more formal and restrictive criminal approach to admissibility should not be determinative in this case.

Decision:

Admission of Statements

At issue during the hearing were the statements of Mary Carmichael. In her statements dated May 2 and 7, 1994, Detective Burch wrote; “I took his diaper off and that’s when I noticed that on his bum there wasn’t an inch without a bruise on it” and “That’s when I noticed his whole bum was bruised.”
Counsel for the Appellant argued that before the statements could be ruled as admissible a voir dire should be held. The Hearing Officer denied the request for a voir dire and admitted Mary Carmichael’s statements.
Subsection 15(1)(b) of the Statutory Powers Procedures Act states:

15(1) Subject to subsection (2) and (3), a tribunal may admit at a hearing, whether or not given or proven under oath or affirmative as admissible in a court ...

(b) any document or other thing. relevant to the subject matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

relevant to the subject matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

The evidence contained in the statements is clearly relevant to the charge. This would appear to provide the necessary authority for the action taken.
However, relevance is not the only test. Statutory tribunals like the Commission are not courts of competent jurisdiction and the rules of procedural fairness which govern these proceedings are less stringent. Nevertheless, common law requirements of natural justice and procedural fairness attach to disciplinary proceedings arising from the Police Services Act. We accede that the evidence would not be admissible where the result would be a denial of procedural fairness.
We have examined the circumstances and methods used by detectives when taking Mary Carmichael’s statements and found the following:

a) no oath was administered prior to taking the statements;

b) the statements were not tape recorded or video taped;

c) the statements were not taken verbatim and in the May 2, 1994 statement the questions were not recorded;

d) the statements were paraphrased and hand written;

e) the hand writing was legible, but had unique features that had to be studied to be understood;

f) there was other evidence consistent with the statements;

g) Mary Carmichael first mentioned the two relevant incidents when there was no investigation specifically dealing with those incidents;

h) Mary Carmichael was available to testify and did testify; and

i) two separate and detailed statements were given by Mary Carmichael, with different persons present.

Some aspects of methodology employed and circumstances surrounding the taking of the statements are problematic. The statements should probably have been read to Mary Carmichael and then given to her to read. It may also have been improper to advise her that if she failed to tell everything that happened to the children, the children would be taken from her.
However, taking this into account in light of all the circumstances and methods utilized, we find that the admission of these statements was “fair” in the specific circumstances of this case, in that there was clearly a strong public interest in the admission of the statements, and the defence was able to test them fully and completely, in that Mary Carmichael was available to testify in relation to the statements and did in fact do so.

Sufficiency of Evidence:

It is submitted by the Respondent that it is not appropriate on appeal to attempt to re-weigh the testimony presented at the hearing and re-assess whether the evidence was clear and convincing, particularly as the factual findings in this case depended so heavily upon the assessment of credibility. They maintain that the issue on appeal should be limited to whether the Hearing Officer’s reasoning is self-evidently wrong or contains a clear error such that it is void of evidentiary foundation.
Concerns have been expressed to us about the sufficiency of the evidence which was before Hearing Officer Fitches and the conclusions which he drew from it. The Appellant believes that the Hearing Officer erred in assigning the weight that he did to the evidence of Mary Carmichael’s statements and that without them there was not a proper basis for a finding of clear and convincing evidence to convict.
Counsel for the Appellant notes that they were not adopted by Mary Carmichael when she testified for the defence and the prosecution did not impeach her credibility in cross examining her with respect to them.
Representing the Appellant, Heather Hutchison noted that the viva voce testimony of Mary Carmichael and those of her statements dated May 2 and 7, 1994 were in direct conflict. She acknowledges that it is not the role of the Commission, as an appellant body, to assess the credibility of witnesses, however she argued that the Commission has a role in deciding whether sufficient evidence was presented to support a conviction.
The applicable burden of proof in this case is that of “clear and convincing” evidence. There must be weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to a reasonable conclusion that the officer is guilty of misconduct. We agree with the Appellant that the Commission can review whether there has been clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of the witnesses. In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight or value.
The Hearing Officer needed to hear all the evidence, including Mary Carmichael’s statements. Having done so, the Hearing Officer accepted the statements of Mary Carmichael. He clearly felt that her version of events as expressed in the statements was sufficiently detailed and convincing, and was supported by subsequent testimony. Hearing Officer Fitches was in the best position to assess credibility, and to decide what weight should be given to the many pieces of evidence, in that he observed all the witnesses testify and observed such one time events as Constable Carmichael’s demonstration of how he picked up Matthew.
In our view there was sufficient evidence for a reasonable person to conclude that discredit to the force was likely to result from the conduct of Constable Carmichael. For the above reasons we find that the charge against the Appellant is proven and the conviction is confirmed.

Penalty:

With respect to penalty, the Appellant contends that dismissal is excessive, particularly considering that the Appellant has obtained the benefit of appropriate counselling.
It is submitted by the Respondent that the Hearing Officer’s conclusions with respect to penalty should not be overturned unless they are decidedly unfair. The Respondent contends that the Hearing Officer is the most appropriate person to assess penalty due to the force-specific issues involved in assessing the need for general deterrence and/or protecting the image of the Ontario Province Police.
There are several elements which should be considered when assessing the appropriate penalty in disciplinary proceedings. They have been articulated in many Commission decisions. These include:

a) the nature and seriousness of the misconduct

b) the ability to reform or rehabilitate the officer

c) the damage to the reputation of the police force that would occur should the officer remain on the force

d) employment history and experience

e) recognition of the seriousness of the transgression

f) handicap or other relevant personal circumstances

g) the officer’s usefulness to remain as a police officer

The leading decision on such matters is Williams and Ontario Provincial Police (December 4, 1995, OCCPS).
In assessing penalty, the Hearing Officer relied on this precedent. The Hearing Officer quoted the following passage from Page 9 of Williams:

“To the issue of the ability to reform or rehabilitate the officer, it has been found that the Appellant had the time and opportunity to report the crime long after it occurred but failed to do so. He further compounded his misconduct by failing to provide fellow officers conducting an investigation with correct information. These actions, afforded the opportunity of reasoning, indicate a serious lack of moral and judgmental qualities required in a police officer. It is doubtful that an opportunity for rehabilitation would correct what would appear to be a fundamental character flaw ...

It is however, the cumulative effect of these actions which is the most disturbing. While each of Constable Williams’ actions taken in isolation is serious enough to warrant penalty, taken together as a sequence of actions, they demonstrate a willingness to continue long after the initial incident, a pattern of behaviour which surely demands a correspondingly more severe penalty.”

We believe that the Hearing Officer erred in applying this rationale to the case before us. In upholding the penalty of dismissal in the absence of any prior disciplinary history by the Hearing Officer in Williams, three key elements were present which formed the basis of concluding that the officer could be of no further use to the Ontario Province Police:

I. The offense committed by the officer (or in Williams’ case committed by others in his presence) was the most serious in nature, and was of such a degree and nature that rehabilitation was not an acceptable option; and

II. The officer knowingly lied about the offense committed; and

III. The officer subsequently in a sequence of events, and in a deliberate manner, attempted to protect this lie by misleading police during the course of their investigation; actions which intimated intent to subvert justice.

It was the presence of these three elements in Williams, which together formed the basis for his dismissal. While the rationale used in Williams highlighted the need for a “correspondingly more severe penalty”, without the presence of these three elements, dismissal may not have been within the realm of appropriate possible penalties.
The Hearing Officer’s application of the rationale in Williams to the actions of Constable Carmichael was done so without establishing the requisite elements necessary for the application of the penalty applied in Williams, namely that of dismissal.
With regard to the first requisite element, we agree with the Hearing Officer that the actions which brought the charges against Constable Carmichael were serious and reprehensible. The Appellant spanked Matthew on the bare bum and, while society has mixed feelings on this, it is still lawful to use spanking as a means of discipline. It is the degree of force used in spanking that is the determining factor and it was ruled that he used excessive force and we agree.
In 1992 the Appellant picked Matthew up by the stomach when he was six or seven months old and left red marks on him. This was not an act of discipline but, a thoughtless, careless, and unthinkable act totally unacceptable in the treatment of an infant.
However, we also find that Constable Carmichael’s actions are of a nature which allows for rehabilitation. In particular, the Judge in the criminal court decision stated that, “Mr. Carmichael has learned from these procedures and that he is not likely to re-offend. The public need not fear him and it is not in his best interest that he be given a criminal record for this offense.” The Appellant also has recognized that he has an anger problem and took positive actions to deal with this by successfully completing courses on anger management and parenting. The family has been reunited for a year or more without incident and have adopted a time out system for disciplining the children.
With regard to the second requisite element, we do not agree with the Hearing Officer that Constable Carmichael did not “offer up the truth” during the investigation. The Appellant did not at any time impede the investigations by the police and the CAS and told the truth as he saw it. This may not be the same as what others perceived as being the truth, but in his mind it was the truth.
In fact, there was evidence presented to attest to the opposite being true. The Appellant admitted in his caution statement that he had a temper and that he had picked Matthew up by the stomach in 1992 and, spanked him on the bum in 1994. The Appellant was convicted in criminal court and in this hearing of those incidents he willingly and voluntarily admitted his actions. This must be taken into account when assessing the potential for the rehabilitation of this officer.
With regard to this third requisite element, we do not find any evidence whatsoever that Constable Carmichael subsequently in a sequence of events, and in a deliberate manner, took any actions which subverted justice.
In his decision, Hearing Officer R.J. Fitches stated:

“Constable Carmichael has either convinced his wife to change her original statements, which I accept as being the truth, or at the very least, allowed it to occur”.

However, there was no evidence presented to either substantiate or repudiate this conclusion by the Hearing Officer. It is speculation without foundation. If evidence had been presented that Constable Carmichael had, as the Hearing Officer alluded to in the penalty decision, either convinced his wife to change her original statements or at the very least, allowed it to occur, we might find differently.
We have also noted the personal circumstances of the Appellant. In this regard, we have considered the testimony on his behalf by friends, neighbours and fellow officers, also that the Appellant has had to declare bankruptcy as a result of his legal expenses. Mary Carmichael lost her job with the bank and the family lost their home. Notwithstanding that the people in charge of the investigation had to deal with the known facts available and protect the children, the Appellant was separated from his family for thirteen months. This was extremely stressful not only for him but for the family as a whole.
The case of Konkle (January 4, 1992, OCCPS) highlights a similar situation involving the use of excessive force in imposing discipline upon a child. Here the officer was charged with the disciplinary offence of discreditable conduct, having been convicted of the Criminal Code offence of assault causing bodily harm. In this case the child was beaten with a belt. Constable Konkle expounded in his argument that in two other cases police officers were disciplined for assault and their sentences were much less severe than dismissal. As a result, the penalty was varied from dismissal to a reduction in rank from First Class Constable to Second Class Constable for a period of twelve months.
We feel a more appropriate penalty is one which reflects on the seriousness of the offense, the opportunity for rehabilitation, and takes into account his personal circumstances.

As such, we substitute the penalty of dismissal to that of Second Class Constable.

DATED THIS 21ST DAY OF MAY 1998.

Raymond J. Silenzi Diana A. Jardine Member, OCCPS Member, OCCPS