Constable Aaron Groat v. Quinte West Police Service, 2001 CanLII 56732

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED

BETWEEN:

CONSTABLE AARON GROAT Appellant

QUINTE WEST POLICE SERVICE Respondent

DECISION

Panel: Murray W. Chitra, Chair Kelly Culin, Member

Hearing Date: Wednesday, October 17, 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

Appearances:

David P. Cavanaugh, Counsel for the Appellant Lynda A. Bordeleau, Counsel for the Respondent

Hearing Date: Wednesday, October 17, 2001

1. This is an appeal from a conviction on one count of neglect of duty contrary to section 2(1)(c)(i) of the Code of Conduct found at O. Reg. 123/98 (the “Code”) made against Constable Aaron Groat by Deputy Chief Daniel L. Murphy (the “Hearing Officer”) on February 2, 2001.

Background:

2. Aaron Groat was hired by the Quinte West Police Service (the “Service”) as a third-class constable in March of 1998. Prior to that time he had served two and a half years as a uniformed member of the Royal Canadian Mounted Police.

3. There were difficulties with the new employment relationship. Constable Groat had health problems that resulted in him missing work. As well, he declined to participate in the Service’s Seventy-Two Hour or Option Four Programs. The Seventy-Two Hour Program essentially permits citizens charged with certain motor vehicle offences to avoid prosecution if they repair defects within three days. The Option Four Program allows persons charged with minor provincial offences to avoid court proceedings if they pay for and complete a seminar.

4. Matters seem to have come to a head in February of 2000. On February 23 Constable Groat was assigned to foot patrol in downtown Trenton. It would appear that walking the streets of Trenton in the winter was not a popular assignment for members of the Service.

5. Within the first few hours of starting his shift, Constable Groat issued four jaywalking tickets. This enforcement ‘blitz’ caused public consternation and provoked a number of phone calls. Some were from the local press. Constable Groat was summoned to police headquarters to meet with Chief Armstrong.

6. A strong conversation ensued. Chief Armstrong expressed concern with Constable Groat’s activities. It would appear that the Chief was of the view that Constable Groat’s actions were designed to discourage any future assignment to foot patrol.

7. There was mention of possible disciplinary charges. Chief Armstrong presented the Appellant with a letter denying promotion to first class constable. Reference was made to his absences and attitude towards Service programs.

8. Constable Groat was returned to foot patrol. However, the location of this assignment was changed from downtown Trenton to a remote stretch of highway along the perimeter of Canadian Forces Base Trenton. Deputy Chief LaFosse ordered other members of the Service to “leave him alone”.

9. These events received much media attention. Chief Armstrong was quoted in a local newspaper. As a result, Constable Groat hired legal counsel and his solicitors forwarded a formal letter to the Quinte West Police Services Board concerning these and other matters on March 6, 2000. It alleged libel and breach of privacy.

10. Two days later, Staff Sergeant Belear found a speeding ticket ‘sticking out’ of Constable Groat’s “pigeon hole” or mailbox. This ticket had been issued on February 7, 2001. Staff Sergeant Belear noted that the ticket had not been processed. Rule 11(1) of the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings requires that a Certificate of Offence must be filed with the Court within seven days of issuance.

11. Staff Sergeant Belear sent an e-mail message to Constable Groat requesting an explanation. The response simply indicated that the ticket was ‘void’. A request for further information elicited a reply that, “The ticket is void because after it was issued, the radar didn’t test properly”.

12. Staff Sergeant Belear interviewed the motorist who had been issued the ticket. This person stated that he had sent a notice to the Court indicating a desire to dispute the charge. He also stated that he had never been contacted by Constable Groat to advise him that the ticket was ‘void’.

The Hearing:

13. On May 5, 2000 Constable Groat was served with a Notice of Hearing alleging three counts of misconduct. For the purposes of this proceeding only one is relevant. That allegation read:

On Monday the 7th day of February 2000, while operating radar on Glen Miller Road (in the City of Quinte West), he stopped a citizen, ________ for speeding and issued him an offence notice. On March 8, 2000, the ticket involved in this incident was located in his mail box (pigeon hole) at the police station. Investigation revealed that he failed to take action to process the ticket in this matter as required. In so doing, he without lawful excuse, neglected or omitted promptly and diligently to perform a duty as a member of the Quinte West Police Service

14. The Notice of Hearing also contained a statement to the effect that if Constable Groat was found guilty of the allegation that he could be subject to the “penalty of dismissal or demotion”.

15. The Service appointed Inspector Phil Lockett of the Ottawa Police Service as Prosecutor and Deputy Chief Daniel L. Murphy of the Kingston Police Service as Hearing Officer. The hearing commenced on January 10, 2001. Inspector Lockett withdrew one allegation of misconduct and advised the Hearing Officer that he would not be seeking a reduction in rank or dismissal on the remaining two matters.

16. The hearing lasted four days. Eleven witnesses, including Constable Groat, testified. His explanation was that he:

• tested the radar shortly after issuing the ticket and it “didn’t test properly”

• understood from a previous discussion with Sergeant Dainard (concerning a speeding ticket that he had issued to the Sergeant’s son) that he had discretion not to process a ticket

• had not processed other tickets in the past because of malfunctioning radar

• had intended to inform the citizen in question but “neglected to do so”

• had understood from Staff Sergeant Belear that the Court would advise any citizen whose tickets were not processed and return any fine that they may have paid.

17. Counsel for Constable Groat argued that the prosecution itself was an abuse of process. He asserted that the disciplinary proceedings were an excessive and oppressive action deliberately focused at Constable Groat for simply doing his job and were a direct response to his lawyer’s correspondence.

18. The Hearing Officer issued his decision on February 2, 2001. He acquitted Constable Groat of one of the two remaining misconduct charges. He found Constable Groat guilty of neglect of duty relating to the processing of the ticket. The Hearing Officer imposed the penalty of a reprimand.

Appellant’s Position:

19. Mr. Cavanaugh, on behalf of Constable Groat, seeks to overturn the single conviction imposed by the Hearing Officer. There are three aspects to his appeal.

20. First, he argued that the Hearing officer erred in certain findings. The Hearing Officer appeared to have had reservations about whether or not Constable Groat actually tested his radar after issuing the ticket. The Hearing Officer suggested in his decision that if this was the case then it would have been a simple matter for Constable Groat to immediately advise the motorist of the problem (given his close proximity to the citizen’s home). Mr. Cavanaugh argued that there is no “clear and convincing” evidence to support such a conclusion.

21. Second, Mr. Cavanaugh took the position that the Hearing Officer misapprehended the evidence relating to Constable Groat’s credibility. In this regard he drew our attention to certain aspects of the testimony of Sergeant Dainard, Staff Sergeant Belear and Deputy Chief LaFosse.

22. He identified what he described as discrepancies, misapprehensions, inaccuracies and equivocal, incoherent, evasive or contradictory accounts that he suggested the Hearing Officer failed to note or take into account. In contrast, he suggested that the evidence of Constable Groat was clear, uniform, direct, accurate, detailed and not seriously impeached or challenged. In support of these arguments he cited Re College of Nurses of Ontario and Quiogue (1993), 1993 CanLII 8683 (ON CTGD), 13 O.R. (3d) 325 (Ont. Div. Ct.).

23. Finally, Mr. Cavanaugh argued that the Hearing Officer erred by not finding that the prosecution of Constable Groat was an abuse of process. He drew our attention to the events leading up to the disciplinary charges. He characterized the charges themselves as draconian, disproportionate, unnecessary, shameful and unrelated to any proper concern about the minor issues in question. He described them as being akin to using artillery to kill a fly. He argued that such matters were more appropriately dealt with under the existing Collective Agreement or as “unsatisfactory work performance”.

24. Mr. Cavanaugh suggested that the motive of the Service was either to intimidate the Appellant into conformity or secure his termination. He drew our attention to a portion of Deputy Chief LaFosse’s testimony wherein the Deputy Chief described the Appellant as “almost moving into a region of being an anarchist within our organization” and he “almost seems trying to tear apart our little police force from 5 the inside”. He asserted that these statements are incredible in the extreme and not borne out by the evidence.

25. Mr. Cavanaugh argued that in sum, any objective assessment of the total proceedings could only lead to the conclusion that the disciplinary proceedings were brought as a frustrated response to its perception of the Appellant’s conduct at large.

26. In support of these arguments he drew our attention to R. v. Keyowski [1998], 1 S.C.R. 657 (S.C.C.), R. v. Miles of Music Ltd. (1989), 1989 CanLII 255 (ON CA), 74 O.R. (2d) 518 (Ont. C.A.), R. v. Rouke 1977 CanLII 191 (SCC), [1978], 1 S.C.R. 1021 (S.C.C.), R. v. Power 1994 CanLII 126 (SCC), [1994], 1 S.C.R. 601 (S.C.C.) and R. v. D. (T.C.) (1987), 1987 CanLII 6777 (ON CA), 38 C.C.C. (3d) 434 (Ont. C.A.).

Respondent’s Position:

27. Ms. Bordeleau, on behalf of the Respondent, took issue with the Appellant’s submissions.

28. She asserted that the Hearing Officer’s findings had a proper evidentiary basis. She argued that the evidence in total satisfied the requirement of “clear and convincing” proof of guilt. Ms. Bordeleau also took the position that the conclusions of the Hearing Officer were both reasonable and proper and did not demonstrate the level of error necessary to overturn a finding on appeal.

29. On these points she drew our attention to Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 1001 (O.C.C.P.S.), Allen v. Munro (Ont. Bd. Inq., 27 July, 1994) and Mowers and Hamilton-Wentworth Police Service (18 March, 1999, O.C.C.P.S.).

30. Ms. Bordeleau argued that the Hearing Officer was in the best position to make findings of credibility with respect to the various witnesses. Further, she asserts that the preponderance of evidence supported his conclusions and there was no indication of any misapprehension on his part.

31. Ms. Bordeleau acknowledges some omissions in the reasons of the Hearing Officer. However, it is her position that overall, the reasons are sufficiently clear, precise, and intelligible to withstand scrutiny. Further, it is her view that the Hearing Officer referred to the evidence that was relevant to his factual findings and therefore rendered a decision that was legally adequate.

32. On these matters, Ms. Bordeleau cited Carmichael and Ontario Provincial Police (21 May, 1998, O.C.C.P.S.), Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952], 2 D.L.R. 354 (B.C.C.A), Brown and Evans, “Judicial Review of Administrative Action in Canada” (Toronto: Canvasback Publishing, Looseleaf, January 26, 2001, update), Northwestern Utilities Ltd. V. Edmonton (City) 1978 CanLII 17 (SCC), [1979], 1 S.C.R. 684 (S.C.C.), Khan v. Canada (Ministry of Citizenship and Immigration) [1999], F.C.J. No. 332 (F.C.T.D.), Kindler v. Attorney General of Canada 1987 CanLII 9004 (FC), [1987], 2 F.C. 145 (F.C.T.D.), Scheuneman v. Canada (Attorney General) 1999 CanLII 9387 (FC), [2000], 2 F.C. 365 (F.C.T.D.) and Vancouver Wharves Ltd. v. Canada (Attorney General) [1998], F.C.J. No. 943 (F.C.T.D.).

33. Finally, Ms. Bordeleau argued that the Hearing Officer was correct in his conclusions with respect to the allegations of abuse of process. She noted that a stay of proceeding must be reserved for the clearest cases where the conduct in question was so oppressive and vexatious that it gave rise to a denial of natural justice. She asserted that the Hearing Officer considered all the evidence and made a proper factual determination that the circumstances before him did not warrant his exercise of this exception remedy.

34. Ms. Bordeleau drew our attention to section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended, Re Town of Milton and Regional Assessment Commissioner (1985), 1985 CanLII 2071 (ON HCJ), 52 O.R. (2d) 734 (Ont. Div. Ct.), Cauchi v. Ontario Ministry of Community and Social Services [1991], O.J. No. 437 (Ont. Div. Ct.), Chokan v. Cameron [1992], O.J. No. 756 (Ont. Div. Ct.), Codina v. Law Society of Upper Canada [1996], O.J. No. 3348 (Ont. Div. Ct.), Misra v. College of Physicians and Surgeons of Saskatchewan 1988 CanLII 211 (SK CA), [1988], S.J. No. 342 (Sask. C.A.) and R. v. Jewitt (1985), 1985 CanLII 47 (SCC), 20 D.L.R. (4th) 651 (S.C.C.).

35. She requested that the appeal be dismissed.

Decision:

36. There is no doubt that police officers are required to promptly and diligently enforce the law. Section 2(1)(c)(i) of the Code states that:

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

(c) NEGLECT OF DUTY, in that he or she,

(i) without lawful excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force …

37. The formal responsibilities of police officers are described in various statutes, regulations and orders. This includes section 42 of the Police Services Act, R.S.O. 1990, c. P.15 as amended. It provides in part:

42(1) The duties of a police officer include,

(a) preserving the peace;

(b) preventing crimes and other offences and providing assistance and encouragement to their persons in their prevention;

(c) assisting with victims of crime;7

(d) apprehending criminals and other offenders and others who may lawfully be taken into custody; (e) laying charges and participating in prosecutions …

38. Accordingly, the responsibilities of a police officer include the laying of speeding charges, the processing of such matters with the courts and participation in any resulting prosecution.

39. The question for the Hearing Officer in this case was whether or not Constable Groat promptly and diligently performed his duties in this regard with respect to the ticket that he issued on February 7, 2000. If not, the issue for the Hearing Officer was whether or not Constable Groat had a lawful excuse for neglecting or omitting to meet his responsibilities.

40. Our function on appeal is not to substitute our opinion for that of the Hearing Officer. As the Commission has previously stated at page 1058 of Williams and Ontario Provincial Police

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.

41. The question for us is whether or not the decision of the Hearing Officer was without evidentiary foundation or demonstrated manifest error in principle.

42. We think not. There is no doubt that Constable Groat issued a ticket on February 7, 2000. It was not filed with the court within seven days as required. Further, even assuming the acceptance of Constable Groat’s explanation that his radar was not working properly (leaving aside the fact that no such malfunction was reported), he took no steps to advise the motorist, court, or indeed anyone else of this fact. In his own words, “I had other things on my mind and I forgot to contact _______ to tell him the ticket was void and it wouldn’t be processed”.

43. We are also satisfied that it was open to the Hearing Officer on the basis of the evidence presented to reject Constable Groat’s excuse. i.e. He understood from Sergeant Dainard that he had discretion not to process the ticket and from Staff Sergeant Belear that the court would advise the motorist and refund any fine.

44. Leaving aside the fact that both Sergeant Dainard and Staff Sergeant Belear rejected the notion that they had offered such advice, it is clear that Constable Groat had at least on one previous occasion notified another motorist in a similar situation (“I just pulled him over again and advised that the machine didn’t work properly and to disregard the ticket.”). Given the above, we are satisfied that it cannot be said that the findings of the Hearing Officer are without evidentiary foundation.

45. This leads us to the question of the Hearing Officer’s conclusions with respect to the credibility of the various witnesses that appeared before him over the course of four days. It has been suggested that the Hearing Officer erred in preferring aspects of the evidence of Sergeant Dainard, Staff Sergeant Belear and Deputy Chief LaFosse to that of Constable Groat. Further it is suggested that the reasons provided by the Hearing Officer did not deal sufficiently with obvious concerns about credibility.

46. At page 8 of Carmichael and the Ontario Provincial Police the Commission held:

The applicable burden of proof in this case is that of “clear and convincing evidence”. There must be weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to a reasonable conclusion that the officer is guilty of misconduct. We agree with the Appellant that the Commission can review whether there was clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of witnesses. In the normal course of events, it is the Hearing Officer who has the benefit of seeing the witnesses, hearing their testimony and assessing its weight or value.

47. Assessing credibility is not merely a function of examining demeanor. As the British Columbia Court of Appeal said at page 357 of Faryan v. Chorney “… the real test of the truth of the story of a witness in such cases must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize in that place and conditions”.

48. There is no question that the testimony of Constable Groat varied in certain respects with that of his three superior officers. Also, it is clear that the Hearing Officer did not identify all of these differences in his reasons. Overall, however, we are satisfied that the Hearing Officer’s 8 page decision is sufficiently clear, precise and intelligible in the manner in which it dealt with the essential elements of the case.

49. It contains no obvious misstatement of the law. The findings of fact are grounded in the evidence presented. The Hearing Officer clearly turned his mind to the question of the credibility of witnesses and with the benefit of first hand observation reached conclusions that are in harmony with the preponderance of probabilities. There is no manifest error of the sort that would warrant the overturning of his conclusions in this regard.

50. The allegation of abuse of process is one of the most troubling aspects of this case. Section 23(1) of the Statutory Powers Procedure Act states:

23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

51. It has been established that in “the clearest of cases” this can include a stay of proceedings.

52. To exercise such exceptional authority, a tribunal must be satisfied that the conduct in question is so wrong that it would violate the conscience of the community, fundamental justice and fair play; prejudices an accused officer or the integrity of justice and that no other remedy is reasonably capable of removing that prejudice. The onus is on the subject officer.

53. Without question, Constable Groat was having difficulties with his employment. This was no doubt aggravated by some apparently ill-considered responses on behalf of certain of his supervisors. In particular, we find that Deputy LaFosse’s suggestion that Constable Groat was behaving like an “anarchist” to be inappropriate.

54. In the circumstances it would have been preferable if the question of Constable Groat’s errors in the handling of a single traffic ticket had been dealt with by way of counselling, performance appraisal or unsatisfactory work performance. To our minds, bringing disciplinary charges in this case appears to be a harsh response to a relatively minor infraction.

55. This is somewhat mitigated by the fact that the Service appointed an external Hearing Officer and Prosecutor who conducted the proceedings in a very fair and sensible manner. Indeed, the first day of the disciplinary proceedings, the Prosecutor made it clear that he was not seeking a significant discipline. As well, the Hearing Officer imposed the least intrusive penalty available to him.

56. It is clear to us that the Hearing Officer turned his mind to the allegations of abuse of process. A significant proportion of his reasons were devoted to this issue. While he had obvious reservations, he concluded that initiating disciplinary proceedings was an option available to the Service in the situation. We agree that while the circumstances leading to this charge are questionable, it was within the scope of reason for the Hearing Officer to conclude that it did not fall within the exceptional category of the “clearest of cases” so as to require that he stay the proceedings as an abuse of process.

Accordingly, for the reasons set out above, we would dismiss this appeal.

DATED THIS 26TH DAY OF NOVEMBER 2001.

Murray W. Chitra Chair, OCCPS

Kelly Culin Member, OCCPS