Constable Adam Cate v. Peel Regional Police Service, 2001 CanLII 56734

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE ADAM CATE

Appellant

-and-

PEEL REGIONAL POLICE SERVICE

Respondent

DECISION

Panel: Murray W. Chitra, Chair Michele Shephard, Member

Hearing Date: July 25, 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

Presiding Members:

Murray W. Chitra, Chair Michele Shephard, Member

Appearances:

Harry G. Black, Q.C., Counsel for the Appellant Ian D. Scott, Counsel for the Respondent

Hearing Date: July 25, 2001

1. This motion is brought on behalf of the Respondent pursuant to section 13.3(a) of the Rules of the Ontario Civilian Commission on Police Services (the “Rules”).

2. The Peel Regional Police Service (the “Service”) is requesting that an Appeal by Constable Cate from a decision of Superintendent Bernard Swain (the “Hearing Officer”) dated January 8, 2001 be quashed for want of jurisdiction on the part of this Commission.

Background:

1. The history of this case is complex and unusual.

2. On April 7, 1999 Constable Cate was ordered by

3. Detective Sergeant Strain to surrender all of his police notebooks for the period from November 16, 1987 to August 2, 1996.

4. Fifteen notebooks were provided. Constable Cate stated that he was not able to provide the others (some 59 notebooks) because they had not been returned to him following an earlier internal investigation.

5. Constable Cate was confronted with a receipt dated June 15, 1995 signed by him entitled “Return of Notebooks & Traffic Ticket Books To Constable A. Cate”. This document referred to some 56 police notebooks and 46 traffic books. The notebooks were identified as being for the period from November 16, 1987 to July 29, 1994.

6. It was suggested to Constable Cate that this receipt was proof that he had all of the books in question. It was further pointed out that he had used one of the notebooks identified in the receipt to testify in a recent criminal case. This notebook was one of the fifteen already surrendered by Constable Cate.

7. Constable Cate stated that he did not have any of the notebooks in question. He indicated that he did not know where they were. He stated that he had signed the receipt to acknowledge receiving a copy of that document, and not for taking personal possession of the notebooks identified in it. He was emphatic that he had surrendered all notebooks that he had.

8. On November 4, 1999 Constable Cate was charged with three counts of misconduct. For the purposes of this proceeding only two are relevant.

9. The first allegation was of insubordination, contrary to section 2(1)(b)(ii) of the Code of Conduct (the “Code”) found at O. Reg. 123/98. The essence of the charge was that “In not surrendering notebooks which he clearly possessed upon being lawfully ordered to do so, and providing no lawful excuse, Constable Cate was insubordinate.”

10. The second allegation was of deceit contrary to section 2(1)(d)(ii) of the Code. The specific charge was that “In denying that he possessed notebooks for which he had signed and which were clearly in his possession, Constable Cate willfully made a false statement pertaining to his official duties and so was deceitful.”

The Hearing:

11. Constable Cate appeared before the Hearing Officer on September 25, 2000 and plead not guilty to both counts. The disciplinary proceeding started that day and continued on September 27 and 28. A total of 13 witnesses including Constable Cate testified.

12. On October 11, 2000 the Hearing Officer rendered his decision. He found Constable Cate guilty of both counts on clear and convincing evidence. The matter was set over until January 8, 2001 for sentencing.

13. On December 4, 2000 a civilian custodian found a banker’s box containing Constable Cate’s police notebooks in a “seldom used area” of a secure supply room in the basement of 22 Division. Access to this locked room is described as “highly restricted” (i.e. limited to the custodian and a sergeant). According to the custodian the box had “been in 22 Div. Storage room for approx. 2 years (more or less).”

14. This discovery was brought to the attention of the Hearing Officer when the parties appeared before him on January 8th. Needless to say, this caused the Hearing Officer great distress.

15. Given this turn of events, the prosecutor suggested that the Hearing Officer ‘stay’ the allegation of insubordination, but requested that “the finding of guilt on the deceit count remain undisturbed”. Defense counsel demanded that both charges be stayed. He pointed out that the whole theory of the prosecution was that Constable Cate had taken custody of all of the notebooks, destroyed them and was deceitful about his actions. He noted earlier prosecution submissions that the two charges were ‘clearly’ interrelated (see page 151 of transcript dated September 28, 2000).

16. In the face of concerns from the Hearing Officer about the fairness of proceeding any further on the finding of deceit, the prosecutor suggested that he consider ‘borrowing’ the concept of ‘mistrial’ from criminal law. Defense counsel responded that the Hearing Officer had no authority to declare a ‘mistrial’. He also noted the fact that such a decision would unfairly put Constable Cate in the position of having to defend himself against the allegations of deceit all over again.

17. The Hearing Officer stayed the finding of insubordination and ordered a ‘mistrial’ on the allegation of deceit. The ‘new’ deceit charge was set over to January 26, 2001 before a different Hearing Officer.

The Appeal:

18. On January 25, 2001 counsel for Constable Cate filed an Appeal with the Commission.

19. This appeal appears to have a number of aspects. In summary they seem to be that the:

• findings of guilt against Constable Cate were not reasonable or supported by the evidence;

• the hearing was conducted in such manner as to deny Constable Cate both natural justice and fairness; and

• the Hearing Officer had no authority to order a mistrial on the charge of deceit

The Motion:

20. Mr. Scott, on behalf of the Respondent has brought a motion under section 13.3(a) of the Rules. His position is that the Commission has no jurisdiction to entertain the above noted appeal.

21. Mr. Scott noted that the authority of the Commission to conduct appeals arises from section 70(1) of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act”). He suggested that authority is limited to cases where a hearing is completed. He further argued that by virtue of the application of section 68 of the Act that a hearing can only be deemed completed after a penalty is imposed. Given the finding of mistrial on January 8, 2001 he suggested that this precondition has not been met.

22. Mr. Scott also argued that the Hearing Officer had clear jurisdiction to impose a mistrial with respect to the charge of deceit. He drew our attention to sections 25.01 and 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 as amended. He suggested that the decision was a proper exercise of the Hearing Officer’s authority under these provisions to control both procedure and process.

23. He argued that it certainly could not be said that the Hearing Officer was functus of his decision-making powers. He suggested that the decision to declare a mistrial was both fair and reasonable, given the circumstances and the advisability of having a new Hearing Officer to deal with any further deceit proceeding.

24. In support of these arguments he drew the following authorities to our attention: York Regional Police Services Board and York Regional Police Association [2000] O.L.L.A. No. 16 (Simmons), Black’s Law Dictionary (7th ed.), R. v. Bertucci (1984), 1984 CanLII 2297 (SK CA), 11 C.C.C. (3d) 83 (Sask. C.A.) and MaCaulay and Sprague, “Practice and Procedure Before Administrative Tribunals, Carswell (Vol. 3), pp. 27A-49 to 27A-50.

25. In conclusion, Mr. Scott requested that the Commission declare that it has no jurisdiction in this matter and remit the matter of the deceit charge back to the Service so that the new disciplinary proceeding may take place.

26. Mr. Black, on behalf of the Appellant, took issue with these arguments. He argued that appeals to the Commission under section 70(1) can be from either a finding of misconduct or from a penalty or both. He noted that Constable Cate’s appeal was with respect to the finding of misconduct. In support of this position he drew our attention to section 64(7) of the Act.

27. He argued that under the Act, the Hearing Officer had no authority to order a mistrial. He suggested that the failure of the Hearing Officer to properly conclude a disciplinary proceeding as required by the Act should not deprive an officer of his or her right to appeal.

28. Mr. Black took the position that there is no statutory provision in place which would permit the Hearing Officer to either reconsider or re-try Constable Cate’s case. He noted that there were no rules in place that might have been available to the Hearing Officer to issue any special procedural orders under section 25.1 of the Statutory Powers Procedure Act. He also argued that the general ‘abuse of process’ provisions under section 23 of that same statute had no application to this case.

29. Mr. Black suggested that the mistrial called into question the integrity of the whole proceeding and gave rise to a reasonable apprehension of bias. He argued that, in the circumstances, it represented a denial of natural justice and a breach of procedural fairness. He reiterated the basis of his appeal which has been identified earlier.

30. In conclusion, he asked that the motion be dismissed and a date set for the appeal.

Decision:

31. A Hearing Officer conducting a disciplinary proceeding is a ‘creature of statute’. By that, we mean that he or she can only exercise those powers granted by law.

32. The normal rules and procedures for disciplinary matters concerning police officers are found in two places. The first is Part V of the Act. Second, section 69(1) of the Act also provides that disciplinary hearings “shall be conducted in accordance with the Statutory Powers Procedure Act.”

33. The Statutory Powers Procedures Act contains a number of provisions of general application. It also permits tribunals to establish their own specific rules governing practices and procedures. For example, section 21.2 provides:

21.2 (1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.

(2) The review shall take place within a reasonable time after the decision or order is made

34. We are advised that no such rules exist for the Service.

35. Accordingly, the question to be answered is whether or not there is a clear power granted to Hearing Officers under either Part V of the Act or in the general provisions of the Statutory Powers Procedures Act to order a mistrial.

36. We can find no such authority in the Act. There is nothing in that legislation which would suggest to us that a Hearing Officer, having received three days of evidence and rendered a written decision finding guilt, can revisit that decision during a subsequent phase of a hearing.

37. The decision of the Hearing Officer contains no reference to the Statutory Powers Procedures Act. Leaving that aside, the only general section of that legislation that has been brought to our attention that may have potential relevance is section 23(1). It reads:

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.

38. This section is followed by two subsections giving tribunals the power to limit the examination and cross-examination of witnesses and to exclude incompetent agents.

39. Case law appears to support the notion that the power to grant a stay of proceedings can be implied from the wording of section 23(1). See Re Straza (1992), 8 Admin. L.R. (2d) 161, 9 C.E.L.R. (N.S.) 314 (Ont. Env. Ap. Bd.) Accordingly, the stay with respect to the charge of insubordination stands.

40. However, to our mind, the power to issue general orders or directions to ensure that proceedings are not abused by a party does not encompass the authority to grant the equivalent of a criminal mistrial. A hearing under the Act is an administrative proceeding of a labor relations nature. It is not a criminal trial.

41. Therefore, while we have great sympathy for the Hearing Officer and the situation that he found himself in on January 8, 2001 we do believe that he had no authority to declare a ‘mistrial’ with respect to the charge of deceit.

42. That being said, is this a case properly before the Commission on appeal? The powers of the Commission in such matters arise from section 70 of the Act. The relevant portions read:

70(1) A police officer … may, within 30 days of receiving notice of a decision made after a hearing held under subsection 64(7) …, appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

(2) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a police officer.

43. Section 64(7) is a general provision requiring a Chief of Police to hold a hearing following an investigation when he or she is satisfied that a “police officer’s conduct may constitute misconduct … or unsatisfactory work performance…”

44. A police officer may appeal a finding of misconduct or unsatisfactory work performance, any penalty imposed, or both. Under section 70(5), any appeal is “on the record”, but the Commission may “receive new or additional evidence as it considers just.” The Commission “may confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police under section 70(6)”.

45. Although initial disciplinary proceedings against police officers are generally held in two distinct phases (conviction and disposition), the normal practice is for a police officer seeking to appeal to wait until the conclusion of all aspects of the proceedings. There are several good reasons for this. It discourages premature applications. It prevents unnecessary delay, piecemeal proceedings and distracting interruptions. It permits all issues in dispute to be dealt with on appeal at one time. It also allows Commission members the benefit of a full and complete record.

46. The facts in this case are certainly not normal. Constable Cate was convicted on October 11, 1999 of insubordination and deceit. These matters can clearly be the subject of an appeal to this Commission. When he returned to commence the sentencing portion of his hearing, he found that the missing notebooks which he was accused of receiving, destroying and being deceitful about had been discovered in a secure police facility. Rather, than having all charges against him stayed and receiving an apology he found himself facing the possibility of a new deceit charge.

47. Given that we have concluded that the Hearing Officer had no authority to order a mistrial on the charge of deceit, that conviction stands. Given that the Hearing Officer has clearly indicated that he feels that in all fairness he cannot proceed to sentencing, there is no point to delay further. For all practical purposes, that hearing has concluded.

48. Accordingly, we deny the motion and direct that the parties contact the Commission Registrar for instructions on how to proceed regarding the appeal with respect to the deceit conviction.

DATED THIS 2nd DAY OF OCTOBER, 2001

Murray W. Chitra Michele Shephard

Chair, OCCPS Member, OCCPS