Constable David Deviney v. Toronto Police Service, 1999 CanLII 31612

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE DAVID DEVINEY

Appellant

-and-

TORONTO POLICE SERVICE

Respondent

DECISION

Panel: Murray W. Chitra, Chair

Benson Lau, M.D., Member

Hearing Date: Tuesday, October 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:

Murray W. Chitra, Chair

Benson Lau, M.D., Member

Appearances:

Ian D. Scott, Counsel for the Appellant

George S. Monteith, Counsel for the Respondent

Hearing Date: Tuesday, October 13, 1998

1. This is an appeal from a conviction of discreditable conduct made against Constable David Deviney contrary to section 1(a)(i.2) of the Code of Conduct contained in Regulation 927 of R.R.O. 1990, as amended (the “Code”) by Superintendent Terrence Kelly (the “Hearing Officer”) on December 9, 1997.

2. As well, it is an appeal against the penalty of forfeiture of 15 days off (or 120 hours) imposed on February 4, 1998.

Background:

3. At 1955 hours on Monday, January 6, 1997 a black man named AC, approached the public counter at the Toronto Police Service’s 42 Division substation. He was upset and crying. AC was referred to Constable Anson Eastmond, a 22-year veteran working in the Alternative Response Unit.

4. AC told Constable Eastmond that he was wanted by the police. A check of the CPIC system did not turn up his name. After further questioning, AC disclosed that he was being sought by Constable David Deviney of 23 Division.

5. Constable Deviney was a 21-year veteran who had been working at the 23 Division Fraud Office since March of 1993. Despite their two decades common service on the same force, neither Eastmond or Deviney had ever had a conversation with each other before. That changed at 2010 hours when Constable Eastmond used a telephone on the wall behind the counter to contact 23 Division. He was connected with the Appellant who was sitting at his desk.

6. The two officers had a conversation which lasted a few minutes. Certain aspects of the content of this discussion are the subject of these proceedings.

7. Portions of the conversation are not in dispute. For example, all agree that Constable Eastmond advised the Appellant that AC was at the 42 Division substation. Constable Deviney confirmed that AC was wanted for fraud and that arrangements had been made with his lawyer for him to surrender at 23 Division that evening at 2000 hours.

8. However, according to Constable Eastmond the Appellant was upset that AC had gone to the wrong station and he would now have to work overtime to process him. Constable Eastmond states that at one point in the discussion the Appellant said: “That’s the problem with those apes, they never do as they’re told.” When, he replied, “Pardon?”, Constable Eastmond stated the Appellant responded: “Yeah, those fucking niggers.”

9. Constable Deviney denies using the words “apes” or “niggers” or any other racially inappropriate expression. Rather, he insists that he told Officer Eastmond to “be careful because all these perps were the same and to be careful of grifters”.

10. Shortly after the disputed exchange, the conversation ended with Constable Eastmond advising the Appellant that he would send AC to 23 Division. He subsequently called for a taxi and AC left when it arrived.

11. Immediately after the phone call, Constable Eastmond approached Constable Alex Rogatinsky who was working in the same area and said “that Deviney at 23 Division is a fucking idiot”. He did not explain why. Constable Eastmond completed his shift at 2300 hours and went to the Police Association building on Yorkland Boulevard.

12. Later that same evening Constable Eastmond telephoned Staff Sergeant Michael Bardgett at the 42 Division main station to report the conversation. He was advised to prepare a written report for the Unit Commander.

13. Early next morning, Constable Eastmond contacted Staff Inspector Keith Ford at his office at 11 Division for advice. The Staff Inspector was an acquaintance who like Eastmond was originally from Barbados. He informed Constable Eastmond of the Toronto Police Service’s policy on such matters. As well, the Staff Inspector advised Constable Eastmond that the policy required him to report the incident.

14. Later that same day, Constable Eastmond was contacted at home by his Unit Commander, Acting Superintendent James Bamford. As a result of this discussion, Constable Eastmond returned to the office and completed both a written report and formal Harassment Complaint.

15. An investigation was initiated.

The Hearing:

16. In May of 1997 disciplinary proceedings were commenced against Constable Deviney. The charge was that he had violated section 1(a)(i.2) of the Code. That section states:

17. 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.2) uses profane, abusive or insulting language that relates to a person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap …

17. The specific allegations related to his alleged use of the terms “apes” and “fucking niggers” in the telephone conversation of January 6, 1997.

18. The disciplinary hearing took place on November 26 and December 9, 1997. Several witnesses testified. They included Constables Eastmond, Deviney, Rogatinsky, Staff Sergeant Bardgett, and Staff Inspector Ford.

19. Other witnesses included Constables Meads and Bender. Constable Meads had been working with Constable Deviney on January 6, 1997. Constable Bender had also been working in 23 Division Traffic Response that night. Both testified that they had been in the area of Constable Deviney’s desk and had not heard him use the alleged offensive words.

20. Two final witnesses were Constable Hans and Community and Social Services employee Mr. Vishnu Persad. Both had worked with Constable Deviney on various fraud matters and spoke to about his attitudes and vocabulary.

21. The essence of Constable Deviney’s defense was that he had used the words “perps” and “grifters” and not “apes” and “niggers”. He suggested that these words were misheard by Constable Eastmond who had an honest but mistaken view that they were racial epithets.

22. On December 9, 1997 the Hearing Officer found Constable Deviney guilty of discreditable conduct. On February 4, 1998 he received a penalty of forfeiture of 15 days off or 120 hours.

Appellant’s Position:

23. Mr. Scott, on behalf of Constable Deviney, seeks to overturn the finding of guilt. To this end he made a number of submissions. He argued that:

24. The finding of discreditable conduct was not supported by clear and convincing evidence and thus was unreasonable.

25. The finding was not supported by the weight of evidence.

26. The Hearing Officer failed to take into proper consideration evidence supporting Constable Deviney’s testimony.

27. Specifically, he suggested that the Hearing officer should not have used the evidence of Staff Sergeant Bardgett about how upset Constable Eastmond was on the evening of January 7, 1997 as corroborative of whether or not the Appellant used the specific offensive words. Put another way, the fact that Constable Eastmond was upset after the phone call might go to what he thought he heard but not to the essential issue of what was actually said.

28. Mr. Scott argued that if Staff Sergeant Bardgett’s testimony is properly characterized then Constable Eastmond’s evidence is completely uncorroborated. He suggested in light of Constable Meads’ and Bender’s evidence as to what they heard that a finding of guilt against Constable Eastmond on a clear and convincing basis is not possible.

29. In support of these arguments he cited R. v. Morrisey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A), Burke v. R. (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205 (S.C.C.), R. v. G.G. (1995), 1995 CanLII 8922 (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.) and Whitehouse v. Reimer et al (1980), 1980 ABCA 214, 116 D.L.R. (3d) 594 (Alta. C.A.).

30. As well, Mr. Scott argued that in light of Constable Deviney’s long and unblemished record (with 25 commendations and 14 letters of appreciation) the penalty imposed was both harsh and out of proportion with analogous cases. He suggested that assuming we were to uphold the conviction a more appropriate penalty would be a reprimand.

31. To this end he cited Sinclair v. P.C. Walt (Ont. Brd. Inq., April 6, 1994), Bressette v. P.C. Burns (Ont. Brd. Inq., December 4, 1992), Funnell v. P.C. Calder (Ont. Brd. Inq., January 25, 1995), Talha v. P.C. Culleton (Ont. Brd. Inq., October 23, 1993), Toronto Police Service and Constable Beausoleil (Hearing Officer D. Wilson, January 14, 1993), and Toronto Police Service and Constable Mohammed (Hearing Officer D. Wilson, April 22, 1993). The penalties imposed in these cases ranged from reprimand to forfeiture of ten days off.

Respondent’s Position:

29. Mr. Monteith, on behalf of the Respondent, argued that the decision of the Hearing Officer was correct, both in terms of the conviction and with respect to penalty. He asserted that the Hearing Officer did take into account the theory put forward by the defence that Constable Eastmond was mistaken about what he had heard. He stated that the Hearing Officer properly rejected this position after considering all of the evidence and making reasonable findings of credibility.

30. He noted that the Hearing Officer found numerous material inconsistencies in the testimony of the Appellant, Constable Meads and Constable Bender. As a result, the Hearing Officer did not find them to be forthright, credible or corroborative of each other. Rather, the Hearing Officer chose to believe Constable Eastmond and Staff Sergeant Bardgett.

31. Mr. Monteith further suggested that the Hearing Officer did not view Staff Sergeant Bardgett’s testimony as corroborative of the content of the telephone discussion, but rather went to Constable Eastmond’s state of mind following the conversation.

32. Counsel for the Respondent also stated that there is no requirement in either law or practice that the statement of a reliable and credible witness be corroborated before it can be accepted and form the proper foundation of a disciplinary conviction.

33. He stressed that the Hearing Officer was in the privileged position to hear and observe all of the relevant witnesses both in chief and under cross-examination. He states that an appellate authority should not overturn a finding based on such observations unless there is manifest error. He argued that no such error exists in this case.

34. In support of these propositions Mr. Monteith cited Lefeunteum v. Beaudoin 1897 CanLII 51 (SCC), [1897], 28 S.C.R. 89 (S.C.C.), “Cross on Evidence”, Butterworths (7th ed.), p. 247, Unger and Ontario Provincial Police (1968), 1 O.P.R. 14 (O.P.C), Barfoot and Ontario Provincial Police (1973), 1 O.P.R. 122 (O.P.C.), Davidson et al. and Durham Regional Police Service (1976), 1 O.P.R. 276 (O.P.C.), Regina v. Young (1992), 8 O.R. (3d) 23 (Ont. C.A.), Nelson v. Murphy et al. (1957), 1957 CanLII 322 (MB CA), 9 D.L.R. (2d) 195 (Man. C.A.), Maze v. Empson (1964), 46 D.L.R. (3d) 9 (S.C.C.), and Maryland Casulty Co. v. Roland Roy Fourrures Inc. (1973), 1973 CanLII 141 (SCC), 35 D.L.R. (3d) 591 (S.C.C.).

35. With respect to penalty, Mr. Monteith argued that the Hearing Officer’s disposition was not harsh or out of proportion with analogous cases. Rather, he asserts that it was consistent with the facts of the case, the Appellant’s record and principles of sentencing.

36. To this end, he brought our attention to O’Farrell and Wlodarek and Toronto Police Service (1976), 1 O.P.R. 251 (O.P.C.), Hinds and Ontario Provincial Police (1990), 2 O.P.R. 880 (O.P.C.), King and Toronto Police Service (1992), 2 O.P.R. 923 (O.C.C.P.S.), Johnson and Barrie Police Service (1985), 2 O.P.R. 643 (O.P.C.), Gibson and Waterloo Regional Police Service (1986), 2 O.P.R. 707 (O.P.C.), and Regina v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.).

Decision:

37. Most of the facts giving rise to this case are straightforward and not in dispute. It is clear that on the evening of January 6, 1997 a distressed citizen approached the public counter at the 42 Division substation. He spoke to Constable Anson Eastmond, who as a result telephoned Constable David Deviney at 23 Division.

38. At issue are certain aspects of what was said during the course of the brief conversation which occurred. Essentially, the question for the Hearing Officer was one of credibility. In other words, which officer’s version of the conversation was most truthful.

39. In previous decisions, the Commission has considered situations where different versions of the facts were in dispute. In Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.) the Commission articulated the test to be applied to such cases. At page 1058 of that decision we stated:

Our role or function in such matters is not to second guess the decision of the Adjudicator. In certain limited cases, it would be open to us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the Adjudicator, as to the credibility of witnesses, cannot be reasonably accepted.

The question to be asked in this case is, are the conclusions of the Adjudicator void of evidentiary foundation?

40. That is the test to be applied here.

41. After considering all of the testimony the Hearing Officer found that there were either glaring or noticeable irregularities in the evidence of Constables Meads and Bender. As well, he stated that the Appellant’s explanation that he had used the words “perps” and grifters” instead of “apes” and “niggers” stretched credulity.

42. Specifically, at page 11 of his judgment of December 11, 1997 he concluded:

After listening to Deviney, Meads and Bender and observing them on the witness stand, I cannot marry their collective evidence into the framework of what actually happened before, during or after that telephone conversation of January 6th between Deviney and Eastmond. I found the evidence of these three officers to be less than forthright and somewhat suspect. Despite minutely going over the testimony of these officers, Deviney, Meads and Bender, I cannot accept them as credible witnesses.

On the other hand, the evidence and testimony offered by Eastmond and Bardgett, whom I found to be most credible and honest witnesses, was given in a straightforward manner with no malice to the accused.

43. In other words, the Hearing Officer rejected both the Appellant’s version of events and the purported corroborative evidence of Constables Meads and Bender.

44. Based on the evidence presented this was a conclusion clearly open to him. Leaving aside the Hearing Officer’s impressions of the various witnesses there are a number of factors worth noting. Prior to this incident Constable Eastmond had never initiated a formal complaint against a fellow officer in his 22-year career. He had never spoken to the Appellant before. There was no doubt in his mind about what was said and it was so offensive that he reported the incident shortly after it occurred and prepared a written report the following morning. His statement about the actual words he heard was clear and unequivocal. His testimony at the disciplinary hearing was both consistent with his report and denied any possibility of a misunderstanding.

45. Given the above, it cannot be said that the Hearing Officer’s conclusions were void of evidentiary foundation. The conviction must stand.

46. That leaves the issue of penalty. The test to be applied when reviewing penalties was articulated by the Commission in Reilly and Brockville Police Service (O.C.C.P.S., May 12, 1997). At page 7 of that decision the Commission stated:

In Williams and OPP the Commission identified three key elements to be taken into account. These include 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.

There are also other factors which can be relevant, either mitigating or aggravating the penalty depending on the particular misconduct 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.

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

disciplinary cases dealing with similar types of misconduct. The reason for this is simple. As the Commission stated at page 615 in its decision in Schofield and Metropolitan Toronto Police: “Consistency in the disciplinary process is often the earmark of fairness. The penalty must be consistent with the facts, and consistent with similar cases that have been dealt with on earlier occasions.”

47. These are the principles which must be applied to the facts of this case.

48. There is no doubt that the use of insulting language directed at abusing any person’s race, colour, or ethnic origin is conduct that is highly offensive, unacceptable and has no place in the Province of Ontario. This is particularly the case for a uniformed police constable holding public office and acting in the course of his or her official duties. It is a serious matter.

49. In O’Farrell and Wlodarek and Toronto Police Service the Commission stated at page 253:

In Ontario, and in particular in Metropolitan Toronto, there is a multi-racial society, and our current laws are framed to ensure that the human rights of all our citizens, regardless of their racial origin, colour or creed, are not infringed or prejudiced. As upholders and guardians of the law, the police have an extremely high standard of behaviour enjoined upon them as individuals to exhibit no racial prejudice, either while on or off duty. The behaviour of the police constable must be exemplary and conform to the high standards of his profession.

50. These principles are reflected in the provisions of the Code of Conduct. As well, it has been recognized by the Toronto Police Service in both its Professional Conduct Rules and Policies and Procedures Manual. Specifically, section 13-14 of the Manual states:

Every member must avoid any expression or display of prejudice, bigotry, or discrimination on any of the prohibited grounds. Even the appearance of bias or prejudice can damage the mutual respect between co-workers.

Harassment is defined in the Ontario Human Rights Code, “as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Harassment may be a one-time incident or repeated incidents.

51. The policy goes on to provide that “As a statement of principle and management policy, the Force finds harassment unacceptable. Harassment must be prevented and if it occurs, the Force shall respond immediately to complaints in the workplace and, if the complaints are substantiated, shall take disciplinary action which may result in dismissal.”

52. The Hearing Officer in his decision properly characterized the nature of the conduct in question as being very serious. As well, he took into account its potential impact on the reputation of the Service. At page 1 of his penalty decision dated February 1, 1998 He stated: “This case, which has gathered much attention from the media, has dealt a blow to the public perception of police professionalism. Regrettably, the negative repercussions of this tend to reflect on all police officers who strive every day to enhance the image of our profession.” He went on to note Constable Deviney’s exemplary record of 21 years. He indicated that seldom had he seen such an outstanding personnel file.

53. We note that there was no evidence reflected in the evidence of any apology or expression of remorse on the part of the Appellant. Neither was there any suggestion of provocation, inappropriate management approach or handicap.

54. The Hearing Officer balanced the Appellant’s exceptional record against principles of specific and general deterrence and stated “It must be made abundantly clear to all serving members of this Police Service that this type of conduct will neither be condoned or promoted.” In the end, he suggested that but for the Appellant’s work record, he would have imposed a reduction in rank.

55. On the face of it, the Hearing Officer appears to have taken into account all of the relevant factors. That leaves the question of whether or not the penalty of 15 days off is consistent with other sanctions imposed in similar cases.

56. We have considered the various decisions referred to us by the parties. Very few deal specifically with the use of racially offensive language. Two cases are however worth noting.

57. In Toronto Police Service and Constable Mohammed a 20-year veteran was disciplined for muttering “Bunch of fucking niggers” after leaving three civilian witnesses he had interviewed as part of a motor vehicle accident investigation. The officer claimed that he had said “Bunch of nice guys”.

58. Constable Mohammed was found guilty of discreditable conduct and assessed a penalty of forfeiture of five days off. Relevant considerations taken into account by the Hearing Officer included:

• a 20-year unblemished record;

• the fact that the remark had been made following a heated argument and was not entirely without provocation; and

• an immediate apology offered after the incident and subsequent expressions of remorse.

59. The penalty was never appealed to the Commission.

60. In O’Farrell and Wlodarek and Toronto Police Service the Commission considered an appeal from two officers found guilty of discreditable conduct. This arose from their off duty use of “racial insults and obscene and insulting language” towards another officer at the Police Association building. No apologies were offered or regret expressed.

61. The Commission adjusted the punishment imposed to reductions in rank to second and third class constable. The greater reduction in rank went to the officer who initiated the remarks. Specific and general deterrence were identified as important factors. As well, the Commission noted at page 254 “This is the first appeal which has reached this Commission in many years in relation to an offence of this nature, which would indicate that the problem is not widespread. If this matter should come before the Commission again, there is a likelihood that it would be inclined to assess a greater penalty.”

62. These cases suggest to us that the penalty of forfeiture of days off is available for cases of discreditable conduct involving racially insulting language. As well, in certain situations demotion is an option.

63. Given the Appellant’s work history, the penalty imposed in this situation is at the high end of the spectrum. However, taking into account certain factors (i.e. lack of provocation, no apology or regrets) and the previously expressed views of the Commission on such conduct, we find that the penalty imposed was within the range available to the Hearing Officer.

64. For the above reasons the appeals against conviction and disposition are denied.

DATED THIS 10TH DAY OF FEBRUARY, 1999.

Murray W. Chitra Chair, OCCPS

Benson Lau, M.D. Member, OCCPS