Constable Neil Orr v. York Regional Police Service, 2000 CanLII 45054

Background:

3. The facts leading to the charges against the Applicant are, in our opinion, germane with respect to the application for the introduction of fresh evidence. The Applicant was a member of York Regional Police and on April 1, 1997, was a member of the Child Abuse Unit. On or about April 1, 1997, he, along with another Constable, assisted in the investigation of the death of a child who succumbed to injuries on April 17, 1997. An inquest into the death of the child was called which was commenced on May 1, 1998, and which inquest was adjourned sine die on May 11, 1998.

4. On May 12, 1998, a reinvestigation of the death of the child was commenced by members of the Peel Regional Police Service at the request of Acting Chief Scott of the York Regional Police. At the same time, an investigation was commenced by members of the York Regional Police, Professional Standards Branch.

5. As a result of the ongoing investigation, the Appellant retained Counsel on May 13, 1998, resulting in a letter being sent to Detective Sergeant William Seed of the Professional Standards Branch of the York Regional Police, advising that any further contact with the Appellant go through his Counsel.

6. On May 26, 1998, Detective Rouw of the Peel Regional Police contacted the Appellant by telephone and requested a formal statement from him regarding the investigation of the death of the child. At that time the Appellant advised that he would be speaking with his Counsel and a reply would be forthcoming.

7. On June 2, 1998, correspondence was sent to Detective Rouw, from Counsel for the Appellant, advising that, upon Counsel’s advice and until such time that Counsel for the Appellant was advised that his client was not being investigated criminally, his client would not be in a position to provide a statement regarding his involvement in the investigation into the death of the child.

8. On June 5, 1998, Detective Rouw met with the Counsel for the Appellant. At that time he confirmed that there was an investigation being conducted by the members of the Professional Standards Bureau of the York Regional Police into the conduct of the Appellant during the investigation of the death of the child. He advised, however, that he could not make any comments as to whether or not it was criminal in nature. In addition, Detective Rouw advised Counsel for the Appellant that he was not in a position to make any assurances insofar as derivative use of immunity or other concerns, regarding any statement that the Appellant provided. Counsel for the Appellant was also advised that should the Appellant not comply with the request to provide a statement then a request would be made that a senior officer for the York Regional Police order him to provide a statement.

9. On June 9, 1998, again by correspondence sent by Counsel for the Appellant, Detective Rouw was once again advised that the Appellant would not provide a statement on the advice of Counsel due to the lack of assurances that no criminal investigation was being conducted against the Appellant.

10. On June 11, 1998, the Appellant received an inter-office correspondence from Inspector Kirk of the Professional Standards Bureau ordering him to respond to questions from the Peel Regional Police within 7 days of receipt of that correspondence.

11. On June 14, 1998, correspondence was sent to Inspector Kirk by Counsel for the Appellant again seeking verication whether criminal charges were to be laid against the Appellant. No response was received to the correspondence of June 14, 1998, resulting in further correspondence to Inspector Kirk on June 19, 1998.

12. On June 23, 1998, the Appellant was formally charged with Insubordination and a copy of the Charge Sheet and particulars were served on him on June 27, 1998. The essence of the charge was that the Appellant had committed misconduct in that he did, without lawful excuse, disobey, omitted or neglected to carry out a lawful order contrary to Section 1(b)(ii) of the Code of Conduct of Ontario Regulation 123/98 and amendments thereto (the “Code”).

Arguments:

13. Mr. Kinahan, on behalf of the Appellant has made an application to introduce the following as fresh evidence:

14. The affidavit of Ms. Mary Margaret Prunty.

15. The affidavit of Mr. Richard Gail Prunty.

16. The affidavit of Ms. Karin Thomson.

17. The affidavit of Mr. Keith Thomson.

18. The affidavit of Sergeant Paul Bailey.

19. Synopsis of the sworn video statement of Gratton Schutte.

20. Synopsis of the sworn video statement of Joan Nowell.

21. Synopsis of the sworn video statement of Derek

Mitchell.

9. Transcripts of the interview of Scott Rogers.

10. The affidavit of Sergeant David Kingston.

11. Report of the Chief of Police to the York Regional Police Services Board, dated August 3, 1999.

12. Mr. Kinahan argued that none of the information contained in the aforementioned documents had been reasonably produced at the time of the Appellant’s conviction and sentencing. He also argued that the information contained in the aforementioned documentation clearly indicated that the Appellant was under criminal investigation from June 23, 1998, at the time that the charges of insubordination were laid against him. Mr. Kinahan argued that the evidence contained in the aforementioned documentation supports the Applicant’s position that he was denied his right as afforded to him pursuant to the Canadian Charter of Rights and Freedoms.

13. Joy L. Hulton on behalf of the Respondent argued that the evidence contained in the affidavits of Mary Prunty, Richard Prunty, Karin Thomson and Keith Thomson was not relevant in that it did not bear upon a decisive or potentially decisive issue in the trial. She further argued that the evidence contained in the affidavits was not credible and was not reasonably capable of belief. Furthermore, she argued even if the evidence as contained in the affidavit was believed that it would not reasonably, when taken with other evidence adduced at trial, be expected to have affected the outcome.

14. The Respondent further argued that to introduce the evidence by means of the affidavits of Mary Prunty, Richard Prunty, Karin Thomson and Keith Thomson would prolong and complicate the appeal. It was further argued that the witnesses should be giving vive voce evidence so that their credibility could be assessed. Similarly Ms. Hulton argued that the statements of Gratton Schutte Joan Nowell, Derek Mitchell and Scott Rogers together with the affidavit of Paul Bailey are either unreliable or did not bear upon a decisive or potentially decisive issue involved in the trial. It was argued that to introduce this evidence would prolong and complicate the proceedings. With respect to the affidavit of David Kingston, the Respondent argued that it misstated the contents of the report of Chief Julian Fantino and that, even if the evidence was to be believed, it could not reasonably, when taken with other evidence adduced at trial, be expected to have affected the outcome.

Decision:

17. We have reviewed the submissions of Counsel, the record of the original proceedings and the transcript of the trial and sentencing. We have also reviewed all of the cases we have been referred to by both the Respondent and Appellant’s Counsel.

18. Section 70(5) of the Police Services Act R.S.O. 1990, C.P.15 as amended ( the “Act”) states that appeals to the Commission be an appeal on the record but the Commission may receive new or additional evidence as it considers just. The Commission has in the past received new or fresh evidence.

19. The Act does not set out the criteria upon which the Commission should allow the introduction of new or fresh evidence. The Commission however, has in the past found that the criteria set out by the Supreme Court of Canada in the case of Palmer and Palmer v. Her Majesty The Queen (1980) 1979 CanLII 8 (SCC), 1 S.C.R. 759 is useful. On page 775 of the Palmer decision Mr. Justice McIntyre set out the following 4-part test to assist whether fresh or new evidence should be introduced:

20. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

21. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

22. The evidence must be credible in the sense that it is reasonably capable of belief, and

23. It must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

24. We are satisfied that the proposed fresh evidence was not readily available to the Appellant by due diligence at the time of the trial. It is particularly clear that the Appellant had no knowledge of the existence or the evidence that may be given by Ms. Mary Margaret Prunty, Mr. Richard Gail Prunty, Ms. Karin Thomson and Mr. Keith Thomson. We are satisfied that the Appellant did not know the existence of these parties until some time following the trial of this matter.

25. We are satisfied that the video taped statements were not known to exist prior to the commencement of the second inquest which was in the spring of 1999 and were unable to be released until the completion of the inquest at the end of July 1999. This was clearly well after the hearing date of the Appellant. Similarly, it is clear that the report of Chief Fantino was not released until January 7, 1999. Obviously, this did not exist prior to the completion of the hearing date November 20, 1998.

26. This Commission also finds that the fresh evidence to be introduced by the Appellant is relevant insofar as it pertains to the question as to whether the Appellant was under criminal investigation at the time that charges under the Act were laid against him. In this regard, it is clearly relevant on the question whether the Appellant had the right to rely upon the Canadian Charter of Rights and Freedoms in refusing to answer the questions being submitted to him.

27. This Commission is also satisfied that the fresh evidence to be introduced is credible. This evidence is either by means of sworn affidavits by parties who were neither party to nor affected by the discipline hearings conducted against the Appellant. These witnesses did not know each other or the Appellant and had nothing to gain by swearing a false affidavit. We are satisfied that the remainder of the proffered evidence emanates directly from police sources and is directly from prosecution witnesses or people associated with the prosecution of the Appellant.

28. We agree with the Appellant’s submissions that the police affidavits and statements disclose a great deal of uncertainty and ambiguity into the issue of whether or not a criminal investigation was being conducted into the action of the Appellant. That being said, we are satisfied that all of the proposed fresh evidence, when taken in its totality, may have the potential of supporting the Appellant’s position that he was under criminal investigation and as a result had the right to rely upon the Canadian Charter of Rights and Freedoms in refusing to answer the questions submitted to him, which refusal led directly to the insubordination charges.

29. For the above noted reasons, this Commission is prepared to accept, and consider as fresh evidence on the appeal, the following items:

30. The affidavit of Ms. Mary Margaret Prunty.

31. The affidavit of Mr. Richard Gail Prunty.

32. The affidavit of Ms. Karin Thomson.

33. The affidavit of Mr. Keith Thomson.

34. The affidavit of Sergeant Paul Bailey.

35. Synopsis of the sworn video statement of Gratton

Schutte.

7. Synopsis of the sworn video statement of Joan

Nowell.

8. Synopsis of the sworn video statement of Derek

Mitchell.

9. Transcripts of the interview of Scott Rogers.

10. The affidavit of Sergeant David Kingston.

11. Report of the Chief of Police to the York Regional

Police Services Board, dated August 3, 1999.

26. It was strongly argued by the Appellant that this Commission should not allow a cross examination to be conducted with respect to the affidavits being introduced as fresh evidence as to do so would simply prolong the appeal and that by itself lead to further applications for fresh evidence. We do not agree with the position taken by the Appellant and are satisfied that the Respondent should have the opportunity to cross-examine all of the deponents of the various affidavits being admitted as fresh evidence.

27. Accordingly, this Commission agrees that the Respondent shall be given two months from the date of this decision to cross-examine any or all of the deponents of the affidavits being admitted as fresh evidence. Any and all of the said cross-examination shall be admitted by the Commission as part of the record during the appeal hearing. In the event that the Respondent does not wish to avail itself of the opportunity to cross-examine the witnesses the tribunal shall admit the affidavits as fresh evidence without the benefit of cross-examination.

DATED THIS 28th DAY OF JULY 2000.

G. Douglas Smith Barbara Morland Wellard

Member, OCCPS Member, OCCP