Gateman v. London Police Service, 1998 CanLII 27142

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE JEFFERY GATEMAN

Appellant

-and-

LONDON POLICE SERVICE

Respondent

DECISION

Panel: Murray W. Chitra, Chair

Karlene Hussey, Member

Hearing Date: Wednesday, April 29, 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:

Murray W. Chitra, Chair

Karlene Hussey, Member

Appearances:

D. Fletcher Dawson, Counsel for the Appellant

David S. Thompson, Counsel for the Respondent

Hearing Date: Wednesday, April 29, 1998

1Constable Jeffery Gateman appeals findings of discreditable conduct and corrupt practice, contrary to section 1(a)(i) and 1(f)(v) of the Code of Conduct (the “Code”) found at R.R.O. 1990, Reg. 927 by Superintendent D. Vickery (the “Hearing Officer”) on June 30, 1994.

2These findings arose following guilty pleas. Constable Gateman seeks to have these pleas either withdrawn or set aside and a new hearing ordered under what was until recently section 63(3) of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act").

3As well, Constable Gateman appeals the penalty of twelve months demotion to second class constable for discreditable conduct and twelve months concurrent demotion to third class constable for corrupt practice.

Background:

4The facts giving rise to this appeal are complex and cover the course of a number of years.

5In the spring of 1994 Jeffery Gateman was a 24-year-old first class constable employed by the London Police Service. He had joined the Service in February of 1990. He was married and the father of one child. His wife, also a London police officer, was expecting their second child.

The Alleged Sexual Assault:

6On June 6, 1994 the Appellant was at home, off duty. He was visited by two friends, MV and BE. Neither had any association with the London Police Service. During the course of the afternoon and the early part of the evening they drank, talked, ate and played pool.

7The Appellant’s wife was working the afternoon shift ending at midnight. At approximately 2030 hours he left to pick up his infant daughter from the baby sitter. He returned half an hour later and put her to bed upstairs.

8In the meanwhile, without the Appellant’s knowledge, MV had called an escort agency. At approximately 2145 hours, a seventeen-year old woman calling herself “Sabrina” arrived by car and went downstairs with MV. The driver from the escort agency was paid $135 dollars for a one-hour visit.

9The precise details of what occurred next are in dispute. It is clear however, that at some point during the following hour MV and the Appellant had sexual relations with Sabrina in the downstairs guest bedroom. While this took place, BE was asleep on the couch in the living room. When the various sexual acts were completed MV gave Sabrina $20.

The Complaint and Investigation:

10The driver returned at approximately 2245 hours. When Sabrina got into the car she told the driver that she had been raped and was bleeding. They drove to Victoria Hospital where Sabrina was seen by an emergency nurse at 2325 hours. She told the nurse that she had been sexually assaulted both vaginally and anally and forced to perform acts of fellatio by two men who said they were police officers and would charge her with prostitution if she failed to co-operate.

11The nurse contacted the London Police Service using a direct line from the hospital and asked a number of “hypothetical questions”. Based on the information received she advised Sabrina that if she had not been working as a prostitute she could not be charged, but could lay charges against the men in question. She was told that if she wished to do so she should see a physician and “have a rape kit done” at St. Joseph’s Hospital.

12Sabrina advised the nurse that she wished to think about it. She stated that she would see her family physician the next day and speak to a social worker. She signed a form indicating that she was leaving the hospital against medical advice and departed without being physically examined or receiving treatment.

13About this time three men arrived at the Gateman residence. This was shortly after Mrs. Gateman had returned home from her shift at London Police Service headquarters. The men yelled, screamed and made threats. The front door was smashed and objects thrown at a bay window. The Appellant called 911. By the time London police officers arrived the three men had left.

14Sabrina meanwhile, at the urging of her driver, went to St. Joseph’s Hospital. There she repeated her story. The London police were contacted and she was interviewed for 40 minutes by Sergeant Mayea starting at 0052 hours and gave a partial statement. She was then examined by a physician shortly after 0145 hours and evidence gathered.

15Sabrina left St. Joseph’s and went home. Sergeant Mayea and another officer picked her up at 0505 hours and took her to police headquarters where she completed her statement.

16Constable Gateman and MV were arrested early on June 7th. They were taken to police headquarters. Constable Gateman spoke to his lawyer and Mr. Robert Wilson, the Administrator of the London Police Association. During the course of the day, both Constable Gateman and MV gave statements to investigating officers. Essentially, while they acknowledged participating in various sexual acts with Sabrina, they insisted that what they had done was with Sabrina’s consent and no threats were involved.

17Constable Gateman was released from custody between 1800 and 1900 hours pending further investigation. On June 8th he was suspended from duty with pay.

The Crown’s Decision:

18Over the course of the next few weeks the investigation was concluded. A lengthy brief was prepared and forwarded to Mr. Bruce Long, the Regional Director of Crown Attorneys. After reviewing the brief Mr. Long wrote a letter to the Chief of Police in London on June 23, 1994. Certain aspects of that correspondence are worth repeating.

19He wrote:

I am aware that time is of the essence and therefore, I will forego a lengthy review of the expected evidence. Suffice it to state that from all the materials, I am convinced that some nonconsensual sexual activity occurred between the above captioned individuals [Constable Gateman and MV] and Ms. ... on June 6, 1994. Unfortunately, the exact details are somewhat obscured by a lack of accurate reporting by the parties involved.

The first legal issue is whether the sexual activity was consensual or otherwise. I do not see clear indications that Ms. … refused the advances and indeed she indicated that she, for the most part, cooperated with them because of her apprehension that they were Police Officers and would charge her. Mr. Gateman clearly has a defence of reasonable belief that she was consenting, if his version is accepted.

If the events, as described by Ms. …, are believed, then reasonable and probable grounds exist to believe that the offence of sexual assault occurred. However, her credibility is very suspect about significant details. Her lack of credibility would seriously undermine the reasonable prospect of conviction in this matter; therefore, even if you believe Ms. …’s description of the events, I would think it unlikely to be in the public interest to pursue this matter as a prosecution in court.

Nonetheless, Mr. Gateman has shown himself to be firstly, an adulterous individual with judgment poor enough to indulge in extra-marital activity with his wife only moments away and secondly, one who would hide the truth from his own wife. Given the moral trust put in Police Officers, such behaviour casts a very dark shadow over his credibility.

20As a result of the above, Constable Gateman was advised that no criminal charges would be brought against him.

The Disciplinary Hearing:

21The following day, Constable Gateman was served by his employer with documents alleging discreditable conduct and corrupt practice contrary to the Code. A statement of particulars was provided for both allegations. The relevant sections of the Code at that time read:

1. Any chief of police or other police officer commits an offence against discipline if he or she is guilty of,

(a) DISCREDITABLE CONDUCT, that is to say, if he or she …

(i) acts in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force …

(f) CORRUPT PRACTICE, that is to say, if he or she …

(v) improperly use his or her character and position as a member of the police force for private advantage …

22The matter was scheduled for first appearance on June 30, 1994.

23Constable Gateman met with Mr. Wilson on the afternoon of June 24th to discuss what to do. Over the course of the next few days he also discussed his situation with his father, wife and close friend on the London Police Service, Sergeant Ogg.

24On June 30 Constable Gateman appeared before the Hearing Officer. He was represented by Mr. Wilson. Both Sabrina and her mother were present. With the consent of the parties the hearing was held in-camera. The charges were placed on the record and Constable Gateman pled guilty to both. An agreed version of events drawn from the statements of particulars was read by the prosecutor, Inspector John Gale. It included the following information about events which occurred while Sabrina was at the Gateman residence on the evening of June 6th:

[MV] engaged in a conversation with the female, and together they went to the lower part of the residence. It is alleged that P.C. Jeffery Gateman joined them at this point, and the victim indicated that she wished to leave the residence. Threats were made by [MV], saying that they were police officers, that if she did not co-operate she would be charged with prostitution. The victim stated that the threats were repeated by P.C. Jeffery Gateman during the act of anal sex. Acts of fellatio and vaginal intercourse were also part of the alleged assault. While in P.C. Jeffery Gateman’s home, the victim observed part of a police uniform in the area where the assault took place. At the completion of the sexual acts, a disagreement took place regarding the amount of money to be paid. P.C. Jeffery Gateman admitted that he participated in sexual acts with the female, and that [MV] paid an additional amount of $20.00 to the victim in his presence.1

25A copy of Mr. Long’s letter of June 23rd was entered as an exhibit. Mr. Wilson agreed on behalf of Constable Gateman, that the facts as outlined by the prosecutor were correct.

26Constable Gateman expressed deep regret for his conduct and accepted full responsibility for it. He apologized for his actions and stated: “... I also want the complainant to understand that what I did I did as a person, and it’s inexcusable, but it should in no way reflect her opinion of the police force as a whole. I am proud to be a member of the London Police Force, and it – what I did is in no way – is any reflection of what I’ve been taught or trained or anything else, and – and it was a terrible, terrible mistake, and hopefully I can get over it.”2

27The prosecutor proposed a penalty of 6 months demotion to second class constable for the discreditable conduct. For the corrupt practice he proposed a further demotion to third class constable with any subsequent promotions being subject to the normal requirements. Mr. Wilson, on behalf of Constable Gateman, urged the Hearing Officer to accept the proposed penalty.

28The Hearing Officer imposed a penalty of an immediate one-year demotion to second class constable for the discreditable conduct and a concurrent one year immediate demotion to third class constable for corrupt practice. He made it clear that any promotion, after the one-year period, was contingent upon “successful completion of the prescribed examination, and upon the recommendation of your supervisor.”3

The Criminal Charges:

29Things may well have ended there, but for a number of events. The circumstances of this case received considerable media attention. There were public protests. Then on August 9, 1994 Sabrina appeared before a Justice of the Peace and swore a private information accusing Constable Gateman and MV of sexual assault, anal intercourse, paying for the sexual services of a minor and permitting sexual activity with a minor in a household. On August 17, 1994 the Justice of the Peace agreed to issue process.

30To complicate matters further on August 31, 1994 the Special Investigations Unit of the Ministry of the Attorney General (the “SIU”) indicated publicly that they would be conducting further investigation under section 113(5) of the Act into the events of June 4th. It would seem that this investigation consisted largely of a review of the existing police files and the record of the disciplinary proceedings of June 30th.

31On October 4, 1994 Constable Gateman filed an appeal with the London Police Services Board of both his disciplinary convictions and penalties. Given the passage of time, he requested an extension of the normal period for filing the appeal. The London Police Services Board was not inclined to deal with this matter. On October 25, 1994 it waived its right to hear Constable Gateman’s appeal and directed this proceeding to the Commission under former section 64 of the Act.

32On November 17, 1994 the SIU laid a second series of criminal charges against Constable Gateman. These included anal intercourse, sexual assault, being a householder permitting sexual activity with a minor and breach of trust. MV was also charged.

33On February 7, 1995 Counsel for the Appellant and Respondent appeared before the Commission in Toronto to deal with the matter of the request to extend the period of time for the filing of the disciplinary appeal. The panel consisted of Mr. Karl Fuller and Mr. Murray Chitra. Arguments were heard. Considering the length of delay, the reasons for it, the lack of prejudice to the parties and the serious arguments to be made, the panel granted the request for extension. The hearing of the appeal was deferred pending the outcome of criminal proceedings.

34In the meanwhile, Mr. Michael Code, Assistant Deputy Attorney General (Criminal Law) determined that Sabrina’s private information and SIU’s criminal charges should proceed. A key factor in this decision appears to have been the admissions made at the disciplinary proceedings.

35A lengthy preliminary inquiry was held over the course of nine days in April and August of 1995. The end result was that the private information was withdrawn. As well, Constable Gateman was discharged on all charges laid by the SIU except for sexual assault. Both Constable Gateman and MV were ordered to stand trial on that one matter.

The Criminal Trial:

36The criminal trial commenced on April 23, 1996 before Mr. Justice D.R. McDermid. Nine days of hearings in April, May and June were devoted to hearing evidence and arguments in pretrial motions. These motions requested that proceedings against Constable Gateman be stayed for alleged violations of his rights under section 7 and 11(d) of the Charter. The arguments focused on the circumstances leading up to Constable Gateman’s decision to plead guilty to the disciplinary charges, his reliance on the Crown’s initial decision not to prosecute, his lack of proper legal advice on the consequences of his plea, and the unfairness of allowing the Crown to reverse its decision not to prosecute based upon the subsequent details of the plea.

37Mr. Justice McDermid considered these issues and released a 29-page decision on September 6, 1996. The motion was denied. As part of his reasoning the Judge stated:

… I accept Mr. Dawson’s submission that it was what occurred at the hearing under the Police Services Act that caused Mr. Code to decide to prosecute, but I cannot accept his submission that it was unfair or improper for Mr. Code to take into account what happened at the hearing in reaching that decision. If Mr. Gateman had received proper advice, he would have admitted at the hearing of the Police Services Act only those facts consistent with his position that he engaged in consensual sex with the complainant. Had he done so, there would be no justification for Mr. Code’s determination to reverse Mr. Long’s decision not to prosecute. Therefore, the situation which Mr. Gateman now finds himself is attributable to actions and decisions he made that were not induced by any unfair or improper action on the part of the Crown. Nor did the police ever represent themselves as agents of the Crown in respect of the Crown’s decision not to prosecute. The fact that Mr. Gateman may not have turned his mind to the consequences of his actions or that Mr. Wilson failed to treat seriously Mr. Gateman’s concerns about the wording of the Statement of Particulars or to appreciate the consequences of accepting the complainant’s allegations, does not constitute any unfair or improper action by the Crown. In other words, in my opinion, Mr. Gateman is either the victim of Mr. Wilson’s inadequate representation or the author of his own misfortune. In neither case can the Crown be blamed for his present situation.4

38The charge of sexual assault proceeded to trial.

39It lasted a total of 26 days during the months of April and June 1997. Judge McDermid delivered a lengthy oral judgment on June 27, 1997. Put at its most basic he found Sabrina to be an untrustworthy witness. The Judge determined that while certain aspects of Constable Gateman’s conduct were not admirable or his testimony totally consistent he was generally more credible.

40As well, he found that Constable Gateman’s decision to plead guilty to the disciplinary charges, acknowledge the particulars and apologize to the complainant did not constitute an admission of criminal conduct.

41He concluded; “I accept as true the accuseds’ version of what transpired at the Gateman residence on June 6, 1994, and find that the sexual activity in which they engaged occurred with the consent of the complainant. Therefore, I find the accused not guilty and acquit them of the charge …”5

42The result seemed to confirm Mr. Long’s opinion of three years earlier.

The Disciplinary Appeal:

43Following the conclusion of the criminal proceedings, arguments for the disciplinary appeal were scheduled for April 29, 1998.

44We heard that Constable Gateman seeks to have his “guilty pleas” of June 30, 1994 set aside and a new disciplinary hearing ordered.

45The Appellant argued that he:

1. did not fully appreciate the effect of his plea of guilty to the charges of misconduct;
2. did not, and does not, admit the facts upon which the findings of misconduct were based;
3. had been advised during plea negotiations with respect to the charges of misconduct, that no criminal charges would be laid as a result of the same incident, and that if he entered a plea of guilty he would be demoted but that he would not lose his employment as a City of London police officer;
4. was not represented by legal counsel during the plea negotiations or at the time of entering his guilty pleas to the charges of misconduct; and
5. was charged subsequently with various criminal offences, contrary to representations made to him during the negotiations which induced him to plead guilty to the charges of misconduct.

46In support of the appeal Constable Gateman submitted a detailed affidavit dated November 18, 1997 with attached transcripts from the criminal proceedings “to establish that he was subjected to undue pressure by the Administrator of the London Police Association who appeared as his agent at the hearing, and to establish that when his agent admitted the facts the agent was fully aware that the Appellant did not accept them.”

47A summary of the salient statements contained in Constable Gateman’s affidavit are as follows:

• he thought Sabrina was a friend of MV who was over the age of 18;
• he acknowledges having sexual relations with her, but not anal intercourse;
• he was not aware that she was being paid and believed that the sexual activity was consensual;
• he never told Sabrina, nor did he hear MV tell her, that either or both of them were police officers;
• he never threatened Sabrina with criminal charges if she failed to co-operate or complained, nor did he hear MV do so.

48He also states that he pled guilty to the two disciplinary charges and apologized under great pressure and in reliance on Robert Wilson’s advice that it was necessary if he wished to keep his job. He asserts that this did not represent an admission of the truth of the allegations made by the complainant as reflected in the statements of particulars.

The Factual Foundation:

49In support of his position, the Appellant relies on 128 pages of transcript of testimony of Mr. Wilson on April 26 and 29, 1996 at the criminal proceedings.

50Mr. Wilson’s testimony indicates that between June 7th to June 30th Constable Gateman was emotional and under great stress. He was being pressured to resign but desperately wanted to keep his job. Mr. Wilson says that his instructions from Constable Gateman was: “Anything Bob. Just save my badge”.

51Mr. Wilson indicated that he had previously been involved in over 150 police disciplinary matters of which 50 went to hearings. He felt that the events which had taken place brought discredit upon the police force and as such represented misconduct. He believed that time was of the essence and that matters had to be dealt with quickly in order to obtain the best possible penalty. He was absolutely certain, given Mr. Long’s opinion that criminal charges would not take place. Also, he felt that if a private information was brought that it would not be permitted to proceed.

52Based on Constable Gateman’s instructions he entered into negotiations with the police force’s prosecutor and obtained an agreement that only a demotion would be sought. He felt under the circumstances that this was “a best case scenario”. Based on this belief, he advised Constable Gateman to plead guilty and apologize.

53Mr. Wilson was aware that Constable Gateman took issue with some of the descriptions of events contained in the statements of particulars. On this matter, he testified about a conversation he had with the Appellant on the afternoon of June 24, 1994 shortly after the statements were received:

54A. The two substantial concerns that upset him greatly was the reference to anal intercourse and the reference or references to the fact that either he or his friend had identified themselves as police officers. He also took offence to that part that indicated there would be some form of retribution if the complainant was to repeat her story outside of the room. I can’t remember the exact wording. It was in the body of the document, but there’s those three areas that he took great offence to.

Q. And what - what was your response to that?

A. My response to Mr. Gateman was quite simply that this was an administrative discipline. I was goal orientated. I told Mr. Gateman that from my conversations with Chief Fantino and from my conversations with Inspector Gale, I believed we had a possibility of negotiating a plea for these two misconducts. Clearly, two misconducts had taken place and that I could achieve a penalty that was inside the direction he’d given me. … Again, my concern was over the time. The exact language that was contained in the statement of particulars I did not see as important.

Q. Did you tell this to …

A. Yes.

Q. … Constable Gateman?

A. Yes, I did. I told him that traditionally that when there’s a complaint against an officer and Police Act allegations are laid, the statement of particulars usually depicts the complaint that the force received and they don’t water that information down. They don’t prejudge it. This was the complaint. The complaint’s written - written down there. I emphasize that the criminal aspect is out of the way. Again, Mr. Gateman clearly admitted to misconduct that evening.

55We - I believed that we had a penalty, had to be confirmed, but I believe I had this managed and I believed that we were going to come out of the process with a penalty that we wanted and I argued quite strongly with him that he shouldn’t concern himself with the language. That in a prosecution, they only had to prove misconduct and the technical aspect of it wasn’t important. I convinced him very reluctantly and I believed he accepted on faith what I was telling him and he left my office still extremely unhappy with the contents of the statement of particulars.

Q. Okay. How did he appear as you were telling him these things ...

A. Solemn. He was agitated. I was - I was pressuring him not to take those parts out of contents. They weren’t important. We weren’t - if - if I can go through this plea bargaining, there’ll be no evidence given in the hearing. The complainant would not be taking the box. He would not be taking the box. It would be a formality. If we can convince the hearings officer by joint presentation and if we‘re going to rock the boat at this stage, we’re going to start all again on Monday about having new allegations written up, he would have to be reserved and we would be pushing this process down the road another week or two at the very minimum. Again, I did not believe time was on our side with this type of allegation.

56Mr. Wilson also acknowledged that he did not know the true facts of the case, nor were they important to him. At a later part in his testimony, speaking of his acceptance of the facts presented at the disciplinary hearing Mr. Wilson indicated that: “If he [the Hearing Officer] was dependent on those facts, he was definitely misled by me.”

57Constable Gateman asserts that he agreed to accept Mr. Wilson’s advice very reluctantly because he viewed him as an expert on such matters and felt that he had no other choice if he wished to save his family further embarrassment and preserve his job. As he testified at the criminal trial: “The train was leaving and everyone was on board, and I was along for the ride.”

Appellant’s Arguments:

58Mr. Dawson, on behalf of Constable Gateman makes a series of submissions. First, he urges that we admit Constable Gateman’s affidavit of November 18, 1997 with its various attachments relating to the criminal proceedings against the Appellant.

59He argues that when an Appellant seeks to introduce material to challenge the validity of a hearing process the traditional criteria for the admission of fresh evidence do not apply. He suggests that the material in question goes directly to the issue of whether or not the guilty plea was valid or the Appellant ever properly acknowledged the facts on which the charges were based.

60He points out that the majority of the proposed new evidence arose during the course of a criminal proceeding where testimony was received under oath and tested by cross-examination.

61In support of these submissions he cites: R. v. W.W. (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.), R. v. Patterson (1996), 1996 CanLII 874 (ON CA), 106 C.C.C. (3d) 64 (Ont. C.A.), Lamb and Toronto Police Service (1976), 1 O.P.R. 273 (OPC), Wright and Toronto Police Service (1989), 2 O.P.R. 845 (OPC), Williams and Ontario Provincial Police (1995), 2 O.P.R. 1008 (OCCPS), section 15 of the Statutory Powers Procedures Act, R.S.O. 1990, Chap. S.22 as amended and section 63(2) of the Act.

62As to the guilty plea, Mr. Dawson asserts that for it to be valid it must be voluntary, unequivocal and informed. He argues that pressure, or inducement in the form of a plea bargain are factors which can affect the voluntariness of a guilty plea.

63He suggests that the Appellant’s affidavit and the material from the criminal proceedings demonstrate that Constable Gateman was subjected to improper pressure from Mr. Wilson, received incorrect advice and overall did not have effective representation on the Police Service Act charges. Mr. Dawson states that the Appellant has met the onus of showing that the plea was not valid.

64He argues that basic notions of due process, ethics and procedural fairness suggest that the plea should not stand. He suggests that this is particularly the case given that the Hearing Officer has been misled by statements of fact on the record which the accused officer did not accept.

65In support of these submissions he cites: R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 17 C.R. (4th) 247 (Ont. C.A.), R. v. Lamoureux (1994), 1984 CanLII 3492 (QC CA), 13 C.C.C. (3d) 101 (Que. C.A.), R. v. Newman (1993), 1993 CanLII 8592 (ON CA), 79 C.C.C. (3d) 394 (Ont. C.A.) and R. v. Sumbler [1997] O.J. 1953 (Gen. Div.). He also draws our attention to Rule 10 of the “Professional Conduct Handbook”, 1997 edition, Law Society of Upper Canada.

66Finally, Mr. Dawson suggests that if we were to permit the withdrawal of the guilty pleas it would be oppressive to proceed again on the original allegations. He requests that we dismiss the second count (corrupt practice) and impose a more modest penalty on the first count (discreditable conduct) which would accord with the facts that the Appellant has acknowledged with respect to his off-duty conduct. To this end he cites: Johnson and Barrie Police Service (1985), 2 O.P.R. 643 (OPC).

Respondent’s Arguments:

67Mr. Thompson argues that we should not admit Constable Gateman’s affidavit of November 18, 1997 with its various attachments.

68He asserts that it is not new or fresh evidence; rather, it is primarily self-serving information that was available to him at the time he pled guilty and does not raise new matters for consideration. He suggests that while the Commission may accept any additional evidence “as it considers just” it should not do so in these circumstances.

69To this end, he cites the four-part test in Palmer v. the Queen (1979), 1979 CanLII 8 (SCC), 106 D.L.R. 212 (S.C.C.). This test speaks to due diligence, relevance, credibility and the potential to alter the original result. He argues that these requirements are not met. He draws our attention to R. v. McAnespie 1993 CanLII 50 (SCC), [1993], 4 S.C.R. 501 (S.C.C.), R. v. Amours 1990 CanLII 154 (SCC), [1990], 1 S.C.R. 115 (S.C.C.) and Thomas v. Ontario (Police Complaints Commissioner) [1994], O.J. No. 2731 (Div. Crt.).

70Beyond that, Mr. Thompson asserts that there is no basis to allow Constable Gateman to withdraw his guilty pleas. He points out that it was the Appellant who chose not to be represented by legal counsel at the disciplinary proceedings. Instead, he elected to be represented by Mr. Wilson, an agent who was very experienced with administrative police disciplinary matters. The use of agents in such proceedings is authorized by section 10 of the Statutory Powers Procedures Act.

71He suggests that persons frequently complain that their convictions are not proper because of incompetent counsel. However, he suggests that in order to succeed on this ground it is necessary to show that the alleged incompetence resulted in a miscarriage of justice and that the verdict would have been different if the agent performed otherwise. To this end he draws our attention to R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.).

72He notes that Constable Gateman instructed his agent to do “anything” to save his badge. Further, he was aware of the advice to plead guilty and acknowledge the statement of particulars on June 24th - almost a week before his hearing. As such, he had several days to consider his position with his friends and family and thus knew exactly what he was doing when he appeared before the Hearing Officer.

73the police, crown or Hearing Officer to plead guilty or acknowledge any facts. He was aware of the possibility of a private information being laid by the complainant and he had never been promised immunity from criminal prosecution. He points out that even at this date, Constable Gateman does not challenge the Hearing Officer’s finding that his behaviour on June 6, 1994 constituted misconduct. He suggests that even if you were to remove the statements that were of concern to the Appellant from the particulars that misconduct would still exist.

74Constable Gateman acknowledges having sexual relations with the complainant and does not deny her allegations that she believed that he and MV were police officers based on the presence of a uniform shirt in the room where the sexual activity occurred. He also notes that the Hearing Officer had a copy of Mr. Long’s correspondence and was thus aware of concerns with the credibility of the complainant ( i.e., the general basis on which Constable Gateman now seeks to withdraw his guilty pleas).

75Finally, Mr. Thompson states that it is perfectly proper to discipline an officer for off-duty conduct. To make this point he draws our attention to Davidson and Durham Police Service (1976), 1 O.P.R. 276 (OPC) and Hewitson and Meaford Police Service (1994), 2 O.P.R. 995 (OCCPS).

Decision:

76The first issue to be considered is the admission of Constable Gateman’s affidavit of November 18, 1997 with its several transcript attachments.

77The relevant section of the Act is section 63(2). It provides that when considering an appeal the Commission “may receive new or additional evidence as it considers just”. In the past, when assessing such requests, the Commission has applied the four-part test in Palmer. As noted in Williams the Commission has found that while this case relates to criminal appeals it enunciates certain helpful principles.

78Generally, applications for the admission of new evidence are for the purpose of providing the Commission with additional material relevant to a factual or legal determination made by the original Hearing Officer. The situation here however, is somewhat different. The Appellant seeks to challenge the validity of his guilty plea. He asserts undue pressure and incompetent representation.

79In criminal cases where the conduct of counsel is at issue the Ontario Court of Appeal has found that the Palmer test cannot always be applied. This is particularly when the information tendered is not directed at a finding made at trial, but at the validity of the trial process itself. At page 233 of R. v. W.W., Doherty, J. states:

When a party tenders fresh evidence on appeal, a determination of “the interests of justice” requires an examination of the grounds of appeal raised, the material tendered and the remedy sought. Here the appellants allege that the conduct of their counsel in acting for both of them at trial led to a miscarriage of justice. The conduct of trial counsel, … can be raised for the first time on appeal … When such allegations are raised, the court must consider the conduct of counsel and determine whether it resulted in a miscarriage of justice. Since the court is charged with the responsibility of quashing convictions which, because of the conduct of counsel, constitute a miscarriage of justice, it must follow that the interests of justice may require that the court consider material extraneous to the trial record but relevant to counsel’s conduct.

If a conflict of interest is alleged, material outlining the full history of the client-solicitor relationships may be crucial in determining whether the conflict existed and resulted in a miscarriage of justice. This material may include discussions between counsel and the clients and other pertinent information not found within the trial record.

80The Court of Appeal went on to conclude: “Where the appellant contends that trial counsel’s conduct resulted in a miscarriage of justice, the interests of justice will generally require that this court receive otherwise admissible evidence relevant to that claim.”

81We find this statement of principle to be persuasive. Acknowledging the clear differences between criminal and administrative appeal functions, it is evident to us that the only fair and proper way to assess Constable Gateman’s allegations about the conduct of his agent and its impact of the Hearing officer’s decision is to receive his affidavit. In our view, it is “just” in the circumstances to do so. Accordingly, we admit the affidavit and its attachments.

82What facts does this material and the other portions of the record disclose?

83It demonstrates that on June 6, 1994 the Appellant indulged in 60 minutes of reckless and irresponsible conduct which set in motion an increasingly serious chain of events.

84Dealing with the allegations arising from his June 6th conduct consumed immense resources on the part of both the London Police Service and the local and regional crowns. At the end of a complex investigation, when criminal prosecution did not seem to be forthcoming, the Appellant was charged with two employment related disciplinary offences.

85To deal with these matters the Appellant chose to be represented by Mr. Robert Wilson, an experienced agent. At the strong urging of Mr. Wilson, Constable Gateman pled guilty to allegations of discreditable conduct and corrupt practice. In so doing, Mr. Wilson acknowledged certain facts about his conduct which he did not accept as true. Constable Gateman apologized, expressed regret and accepted responsibility.

86Mr. Wilson was clearly aware of his client’s reservations about the facts. It seems evident, however, that he set these concerns aside. His main interest was to ensure quick closure of matters, preserve the Appellant’s employment and save his family further embarrassment. For Mr. Wilson, this was a practical goal oriented exercise.

87Instead of putting things to rest, the admissions served as a new and key factor in a subsequent reconsideration of the crown’s decision not to prosecute. This gave rise to a substantial criminal prosecution with well over a month of motions and trial proceedings. The whole business was not resolved for almost three years.

88From our prospective the essential issue is not so much the events of June 6, 1994 or the subsequent criminal proceedings. The question is whether or not there was an error of sufficient magnitude at the disciplinary proceedings of June 30, 1994 to warrant overturning the findings of the Hearing Officer.

89Disciplinary proceedings under the Police Services Act are part of an administrative employment process. They are not formal criminal proceedings subject to the full range of safeguards guaranteed by the Charter for procedures with potential consequences of a penal nature.

90That being said, the disciplining of police officers is a serious matter from two perspectives. From the point of view of the officer there is the need to ensure that any employment related concerns are dealt with in a fair and consistent manner. From the point of view of the public, there is a concern to see that police officers are held accountable for any employment related misconduct - particularly where a member of the public is concerned or there is some suggestion of abuse of public office.

91Proceedings before a Hearing Officer are clearly outlined in the Act. Procedural concerns are also governed by the provisions of the Statutory Powers Procedures Act. Principles of natural justice apply.

92Officers who are facing potential disciplinary concerns can be represented by either lawyer or agent. Either way the expectation is that any representative will competently assist their clients and respect the process. The presence or absence of representation does not, in itself, impair the validity of any outcome.

93In order for Hearing Officers to make a fair determination it is essential that they have correct information. This is key to a proper assessment of the conduct in question. It is also necessary to ensure that any penalty imposed arises from a proper weighing of all of the relevant factors. These include such concerns as the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer, and the damage to the reputation of the service if the officer were to remain with the force.

94Other factors which could be relevant, either mitigating or aggravating a penalty include:

• employment history and experience,
• recognition of the seriousness of the transgression, and
• handicap or other relevant personal circumstances

95Further considerations might be the need for deterrence, provocation or concerns arising from management’s approach to the conduct in question.

96When there is not a full hearing with the presentation of evidence and the cross-examination of witnesses, a Hearing Officer is dependent on the parties for the necessary information upon which to make a finding or impose penalty. This information must be as accurate as possible to permit the Hearing Officer to determine whether the facts warrant acceptance of the guilty plea or the jointly proposed penalty is within the correct range.

97The Hearing Officer is not obliged to accept a guilty plea. He or she may choose to hear evidence on a key point in dispute or direct a full hearing. As well, the Hearing Officer is not obliged to accept a jointly proposed penalty. However, if a Hearing Officer chooses to depart from what is being proposed he or she must provide clear and cogent reasons. These reasons must of necessity flow in large part from the facts presented.

98For these reasons it is essential that both parties to a disciplinary proceeding be honest and accurate in their presentation of facts.

99Lawyers in the Province of Ontario are boundby Rules of Professional Conduct. Rule 12 dealing with criminal defence counsel states:

12. Where following investigation:

a) the defence lawyer bona fide concludes and advises the accused client that an acquittal of the offence charges is uncertain or unlikely;

b) the client is prepared to admit the necessary factual and mental elements;

c) the lawyer fully advises the client of the implications and possible consequences, and particularly of the detachment of the court; and

d) the client so instructs the lawyer,

e) it is not improper for the lawyer to have discussions with the prosecutor regarding a possible disposition of the case. The public interest must not, however, be sacrificed in pursuit of an apparently expedient means of disposing of doubtful cases.

100Similarly, Rule 10(e) requires that a lawyer not “knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed …” In other words, a lawyer cannot assist an innocent person to plead guilty for reasons of expediency or otherwise misstate facts.

101In certain contexts this expectation applies to agents or paralegals. An example of this can be found in R. v. Sumbler. This case concerned a paralegal who acted as agent for a person on two charges of driving while disqualified. The client maintained that he was not the driver of the vehicle of the car in question on one of the relevant dates. However, he pled guilty to both charges on the advice of his agent, a Ms. Gross, who said she had worked out a deal for a joint submission calling for a one-year license suspension. Later the Ministry of Transportation suspended the Appellant’s license for three years.

102Quinn, J. for the Ontario Court of Justice (General Division) wrote at page 24 of this decision: Because she is a paralegal, the duty owed by Ms. Gross to the appellant is not as easy to define as would be in the case if she were a lawyer. However, whatever the full limits of that duty are (and they need not be defined for the purposes of this appeal) they certainly would include adherence to the principle reflected in Commentary 12(b). It is abundantly clear to me that this principle was violated by Ms. Gross. I harbour not the slightest doubt that had the appellant been unrepresented at trial, and had the trial judge learned that the appellant was maintaining that he was not the driver of the motor vehicle on July 7th, 1995, the plea of guilty would not have been accepted. Accordingly I find that the conduct of Ms. Gross was incompetent in this regard. Furthermore, I find her conduct transcended incompetence. It was, as well, unethical for her to have been a party to the guilty plea of the appellant.

103The court concluded that there was a reasonable probability that the incompetence of the paralegal caused a miscarriage of justice and a new trial was ordered.

104We believe that these general principles apply to disciplinary proceedings under the Act. Whether an officer is represented by counsel or agent, it is essential to the integrity of the process that any factual information presented be correct and no expedient guilty pleas entered where essential allegations are not admitted.

105In this case we are satisfied that the Appellant does not and has never accepted or acknowledged certain key allegations made against him. For example, he has asserted from the day of his arrest that he never told Sabrina that he was a police officer or threatened her with criminal charges if she failed to co-operate or subsequently complained. These facts are the central elements to the allegation of corrupt practice.

106Despite continuing assertions that he never did these things, Mr. Wilson urged Constable Gateman to plead guilty. Then, at the disciplinary hearing Mr. Wilson admitted these facts on Constable Gateman’s behalf. This was done in the clear knowledge that they were not accepted by his client. Further, he had no other evidence or information to lead him to believe that the facts might be true.

107We are satisfied that if this had been known to the Hearing Officer, he would not have accepted the guilty plea. In addition, it is clear from the Hearing Officer’s decision that the penalties he imposed were influenced by his perceptions of the overall facts. Overall, we are satisfied that the Appellant has met his onus to show that he was inadequately represented and this resulted in prejudice.

108Accordingly, the appeal is granted. We direct that these matters be remitted back to the Hearing Officer for trial. If the original Hearing Officer is no longer available, then another may be appointed by the Chief of Police.