Constable Scott Besco v. Peel Regional Police Service, 2001 CanLII 56730

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE SCOTT BESCO

Appellant

-and-

PEEL REGIONAL POLICE SERVICE

Respondent

DECISION

Panel: Dr. John A. Balkwill, Vice Chair

Doug Smith, Member

Hearing Date: Tuesday, July 24, 2001

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:

Dr. John A. Balkwill, Vice Chair Doug Smith, Member

Appearances:

Barry Chercover, Counsel for the Appellant Ian D. Scott, Counsel for the Respondent

Hearing Date: Tuesday, July 24, 2001

1. Constable Scott Besco appeals a finding of corrupt practice contrary to section 2(1)(f)(v) of the Code of Conduct (the “Code”) found at O. Reg. 123/98 by Superintendent Bernard Swain (the “Hearing Officer”) on January 16, 2001.

2. Constable Besco also appeals the penalty of 4 days (four eight-hour days) time off imposed the same day.

Background:

3. On the afternoon of Saturday, August 14, 1999, Constable Besco was working the uniform patrol at 22 Division in the capacity of acting sergeant. During his shift, Constable Besco went to Jack’s Backyard restaurant with Constable Danos. This was for the purpose of meeting an informant.

4. When his shift ended at midnight, Constable Besco changed into his civilian clothing and along with Constable Danos drove to the same location in Constable Besco’s Porsche Boxter. After parking close to the front door, the two officers entered the restaurant and joined several other off-duty officers. All were in civilian dress.

5. In the early hours of Sunday morning, a fight took place involving some of the officers. This led to an investigation by Peel Regional Police’s Internal Affairs Bureau. Almost three months later, Constable Besco was interviewed about events at the restaurant. He was charged on February 4, 2000 with misconduct.

6. The specific allegation related to Constable Besco’s second attendance at Jack’s Backyard restaurant. The essential aspect of the particulars read:

Constable Besco was known to management and employees at the establishment and used his position as a police officer to gain favour and “jump” the line-up waiting to enter. Constable Besco’s actions were observed by a number of civilian witnesses. By improperly using his position as a member of the police force for private advantage, Constable Besco has committed the offence of Corrupt Practice.

The Hearing:

1. The disciplinary hearing took place over the course of several days in November and December of 2000. A total of ten witnesses, including Constable Besco, testified.

2. The main witness against Constable Besco was Mr. John McQuaid of Brampton. He testified that he and two friends arrived at Jack’s Backyard between 11 p.m. and midnight. He acknowledged that he had been drinking (four to six beers) prior to arriving, and he waited between 10 and 20 minutes before he got to the head of the line, which had 40 – 50 people behind him. He testified that he observed 2 males, one a ‘latino’ (the driver) and a caucasian (the passenger’), exit a Porsche and proceed to the front door.

3. Mr. McQuaid testified that the ‘latino’ flashed a badge and the doorman immediately granted entrance. On cross-examination, Mr. McQuaid conceded that he assumed what he saw was a badge, but in actual fact could not swear it was a badge. He could only tell that something silver and leather was shown, and acknowledged that perhaps he was assuming too much.

4. He further testified that he had not paid much attention to the caucasian, had not looked at his face, and in fact his view was basically blocked. Mr. McQuaid went on to recall that when he entered the establishment, he saw four to five officers all together. When pressed, he acknowledged that it was an assumption on his part that they were police officers. He also acknowledged that it was his friend who had an altercation with Peel officers that night.

5. Constable Danos also testified. He said that both he and Constable Besco left for Jack’s at the end of their shift somewhere between midnight and 12:30 a.m. He recalled meeting Constable Payne at the location and all three entered the restaurant without waiting in line. However, he could not remember whether it was the front or side (kitchen) door that was used.

6. Constable Danos admitted that he had also been charged with misconduct for ‘jumping’ the line that evening and on the advice of experienced officers had pleaded guilty. After a lengthy and detailed examination-in-chief the prosecutor sought an order declaring Constable Danos as an adverse witness within the meaning of section 23 of the Evidence Act R.S.O. 1990, c. E.23. The Hearing Officer agreed. Constable Danos was granted the full protection of the Canada and Ontario Evidence Acts as well as his Charter rights. He continued to state, after being asked several times, that he could not remember how he entered Jack’s. He also continued to insist that he only pled guilty to get it over with.

7. He went on to claim that neither he nor Constable Besco had used their badges that night to gain admittance. Constable Danos acknowledged he possessed a V.I.P. card for Jack’s. Further evidence showed other establishments either offered V.I.P. cards or discounts to police officers, including a Brampton golf course which offered free rounds of golf with proper identification. In re-examination he offered that it was his belief he did nothing wrong that night, he wasn’t aware the Service would disapprove of his actions, that he had V.I.P. cards, and knew the owner and his sons.

8. Constable Jason Maschke was called by the defense. He testified the officers left their station sometime after midnight and drove to Jack’s. He indicated that Danos, Payne and Besco were there waiting and they entered the side (kitchen) door along with some girls, about 9 people in all and at no time did any officers flash their badges. In cross-examination, he indicated that Constable Besco was likely the driver of a Porsche he had passed that night. When he arrived at Jack’s he saw approximately 10 people in line.

9. Constable Villers also testified on behalf of the defense. He recalled leaving the station 15 – 25 minutes after the other officers who had left sometime after midnight. When he arrived, he saw six or seven people in line waiting to enter the bar and subsequently found Constable Besco in approximately five minutes. Constables Besco, Danos, Borel and Meschke were standing near the front, but not in line, he testified that someone (Jack’s Restaurant staff) led them to the side (kitchen) door and let them in.

10. Constable Borel also testified the same group was present and in addition he saw Constable Payne. They were not in line and he stated the owner let the group through the side (kitchen) door. At no time did he witness anyone showing a badge. He was questioned about the parking arrangement, but could not say where Constables Besco and Danos parked or who drove the Porsche.

11. Mr. Tosh Soulis one of the owners at Jack’s Backyard testified that he knew both Constable Besco (a neighbor) and Danos (a fellow Greek) before the night in question. He stated a regular practice at his establishment was to admit more mature persons, or people he was familiar with, ahead of those in line. He was unable to recall how Constable Besco got in, but stated he would not expect him to wait in line, and was not aware of any prior agreement reached as a result of his earlier visit. He went on to say he didn’t remember leading a group through the side (kitchen) door and had communicated to his doorman to always keep a few spots open for special guests (V.I.P. cards or friends) so that their admittance would not exceed his maximum capacity of 236.

12. Constable Scott Besco testified that he left work sometime after midnight and arrived at Jack’s at approximately 12:30 a.m. He recounted that he had been there a number of times and could not recall which door he went through. He recalled how he was a friend of the owners and that in fact they were neighbors. He described how Mr. Soulis had given him a V.I.P. card. He described how the various cards he had, including “Jack’s”, extended certain privileges, most particularly, not having to wait in line.

13. Mr. Paul Bailey, chief administrative officer with the Peel Regional Police Association indicated although he had not personally done what Constable Besco was alleged to have done, that he had entered, ahead of line ups at other establishments in the company of owners or other associated with the premise. He indicated that it was standard practice with many police services to accept discounts, freebies, and in fact associations often arranged this for their members.

14. Additional evidence was tabled before the hearing regarding a number of promotional materials and services available to police officers. Some offers required providing proof that they were a member of a police service.

Appellant’s Arguments:

15. Mr. Chercover argued on behalf of the Appellant that the Hearing Officer did not have sufficient clear and convincing evidence to find that Constable Besco engaged in a corrupt practice. Specifically he took the position that:

• there was no clear and convincing evidence that Constable Danos used his police badge;

• the Hearing Officer erred when he relied upon Constable Danos guilty plea in support of his finding;

• if Constable Danos had in fact used his police badge there was no clear and convincing evidence that Constable Besco knew that Danos used his badge for private advantage and availed himself of the same advantage;

• had the Hearing Officer correctly determined that even if Constable Besco had known that a badge was used for private advantage and he availed himself of this advantage, did this act in itself raise to the level of corrupt practice; and

• if the Hearing Officer had determined correctly that the Appellant had engaged in a Corrupt Practice the penalty he imposed was too severe.

16. Mr. Chercover cited a number of cases in support of his position. These included Allan v. Munro, (unreported) Ont. Bd. Inq. (27 July 1994), Huard v. Romualdi (1993), P.L.R. 317 (Ont. Bd. Inq.) at 328, Re Bernstein and College of Physicians and Surgeons of Ontario (1977) 1977 CanLII 1072 (ON HCJ), 15 O.R. (2d) 447 (Div. Ct.) at 471, Cate and Peel Regional Police Service (July 17, 1998, O.C.C.P.S.) and Norris v. Loranger (unreported) Ont. Bd. Inq. (January 19, 1998).

Respondent’s Arguments:

17. Mr. Scott argued on behalf of the Respondent that the Hearing Officer had ample evidence before him to conclude that the Appellant engaged in corrupt practice.

18. He further submitted that the penalty of four days loss of pay was a reasonable one in the circumstances and should remain in place. Mr. Scott argued the Commission must determine whether a Hearing Officer’s findings of fact are “unreasonable or cannot be supported by the evidence”. Absent an overriding error, the Commission should not interfere with those findings. It was presented that the Hearing Officer was well within his jurisdiction and mandate to make the factual findings leading to the decision that Constable Besco was guilty of a corrupt practice.

19. Mr. Scott cited Bright v. Konkle, (unreported) Ont. Bd. Inq. (17 March, 1997), Shopshire (1995), 1995 CanLII 47 (SCC), 102 C.C. C. (3d) 193 (S.C.C.), Williams v. Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS), and Peel Regional Police Services v. Peter Danos, (unreported decision of Superintendent Swain dated May 25th, 2000). He also referred to Norris v. Loranger.

Decision:

20. It is a well established principle that an appellant authority should only intervene if the Hearing Officer has made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drawn erroneous conclusion from it.

21. As was noted in Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (OCCPS) at page 1058:

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 for 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 the witness, cannot be reasonably accepted.

22. Matters of credibility and finding of fact are clearly within the Hearing Officer’s domain. Only in exceptional cases where the reasoning is self-evident wrong, contains clear error or cannot reasonably be accepted, will the Commission interfere with conclusions made by the Hearing Officer on such matters. The evidence must be weighty, cogent and reliable.

23. The charge of corrupt practice is a serious one. Section 2(1)(f)(v) of the Code states:

2(1) Any … police officer commits misconduct if he or she engages in …

(f) CORRUPT PRACTICE, in that he or she …

(v) improperly uses his or her character and position as a member of the police service for private advantage.

24. In the case of Constable Besco was there clear and

convincing evidence that he improperly used his position for private advantage?

25. The only evidence against Constable Besco was the testimony of Mr. McQuaid. In our view this is problematic. Mr. McQuaid admitted that he had been drinking prior to going to Jack’s Backyard restaurant. He claimed that two officers arrived at the restaurant in a Porsche at approximately 11:30 p.m. However, Constables Besco and Danos’ shift did not finish until midnight and they could not have arrived much before 12:30 a.m.

26. Mr. McQuaid could not identify either officer. He indicated that a ‘latino’ was driving the Porsche. He stated that the Appellant was not the ‘latino’. There is no dispute that the Appellant was the owner of the car. Further, Constable Besco testified that he drove to the restaurant that evening.

27. Mr. McQuaid indicated that the two men went to the head of the line, the ‘latino’ flashed a badge and they entered through the front door. Although, Mr. McQuaid referred frequently in testimony to seeing a ‘badge’ upon cross-examination he testified that he did not see it clearly and had ‘assumed’ what it was. Further, at least three other officers who were there that evening testified that they had entered the restaurant with Constables Besco and Danos through the side door.

28. Whether or not Constable Danos pled guilty to a similar allegation for his involvement in events that evening does not add anything to the allegations against Constable Besco. This is particularly so, given his explanation for having done so.

29. Finally, to totally dismiss the fact that Mr. McQuaid’s friends had a serious altercation with off duty Peel Regional police officers later that evening, perhaps is ignoring a fact that at least deserved some consideration.

30. Leaving the above considerations aside, at the very best, all that the evidence would appear to support is a finding that on the evening in question Constable Besco was with someone who showed something to gain admission to the restaurant through one of two doors. There is no evidence that Constable Besco agreed in advance with the other person to do this or even was aware that it was done. Further, both officers knew the owners of the restaurant and had VIP cards. According to Mr. Soulis restaurant staff were instructed to allow the holders of such cards not to wait in line.

31. Police officers should not take advantage of their position for private gain or advantage. By that we mean they should not use their badges while off duty to obtain benefits or advantages not available to other citizens. However, the facts of this case do not appear to provide the level of proof required to meet this serious charge. The finding of corrupt practice cannot be reasonably accepted.

32. Accordingly, we set the conviction aside.

DATED THIS 5th DAY OF OCTOBER, 2001

Dr. John A. Balkwill

Vice-Chair, OCCPS

Doug Smith

Member, OCCPS