Lewin v. Toronto Police Service, 2001 CanLII 56739

Background:

2. Sergeant Lewin is alleged to have made offensive comments about women, in the presence of a female officer, while they were assigned to work a “paid duty detail” at the CNE Casino on August 21, 24 and 25, 1998 and Ontario Place Molson Amphitheatre on August 22, 1998.

3. The female officer, Constable Voelk, was a probationary officer assigned to Sergeant Lewin’s platoon. She had been working as a constable for 10 weeks. Sergeant Lewin was her supervisor and training officer.

4. The alleged comments related to the legs, breasts and buttocks and general appearance of women seen to be passing in, or out of, the patrolled premises. They were not directed at the constable, however, they were made within range of her hearing.

The Hearing:

5. Sergeant Lewin appeared before the Hearing Officer on Monday, July 17, 2000, with his lawyer Mr. J.J. Burke, charged with conduct contrary to subsection 2(1)(a)(xi) of Regulation 123/98 (the “Code”). That provision provides that it is discreditable conduct for an officer to “act[s] in a disorderly manner or a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force”. Sergeant Lewin pled not guilty to the charge.

6. The Hearing Officer received testimony from Detective Allister Field, identified as the Complaint Co-ordinator of 14 Division, Toronto Police Service. Field had been assigned to conduct an enquiry into the job performance of Sergeant Lewin. In the course of this investigation he testified that he had interviewed the constable on two occasions (September 17th and 20th of 1999) and had subsequently completed a complaint form that the constable signed. This document alleged sexual harassment on the part of Sergeant Lewin. This related to comments about women at the CNE Casino and Molson Amphitheatre.

7. Further, Detective Field testified he had interviewed 16 other officers involved in the “paid duty” assignment. None of them indicated that they had, at any time, heard Sergeant Lewin speak in the manner described in the complaint, nor had they ever heard him make inappropriate comments about female persons.

8. The constable also testified. She described in a general way, the occasions when, and in what manner, the remarks were made, during the “paid duty”. They were in the nature of “Wow, look at that ass” or “Look how big her tits are”. She also stated that, at the time, she really didn’t think much about the comments. She testified that while she was not personally offended, she did feel it was inappropriate for a supervisor to be saying such things and she felt it was in very poor taste.

9. Constable Sommers (a coach officer) testified that he was also present at the Molson Amphitheatre and heard no comments of that nature during that time. He further testified that Sergeant Lewin was a “pretty strait-laced” type of person with high principles to the extent that others might find it hard to live up to his standards. Beyond this, Constable Sommers testified that he was aware of “bad blood” between Sergeant Lewin and the officers of his platoon, caused, he felt, by the Sergeant holding them to a strict standard of performance of their duties.

10. Sergeant Lewin testified in his own defence, and denied the allegations.

Appellant’s Position:

11. Mr. Burke, on behalf of the Appellant, took issue both with the finding of guilt and the penalty imposed.

12. He emphasized that Detective Field had done a comprehensive enquiry into Sergeant Lewin’s work performance. He noted that the16 officers interviewed had not reported hearing any offensive comments being made by Sergeant Lewin, either then or at any other time, in relation to women.

13. He further pointed out that Sergeant Lewin appears not to have been well-liked by the members of his platoon. It was stated that the most likely reason for this was because of his rather strait-laced attitude and his disciplining of those who did not measure up to his standards. Mr. Burke suggested that there had been “bad blood” between the Sergeant and his platoon “for his taking them to task” to the extent that some were booking off sick simply because they could not stand being on the same shift.

14. Given the above, Mr. Burke argued that there would be no reason for the officers not to come forward with evidence of inappropriate remarks if such comments had been made. The constable also affirmed that her fellow officers “would have had no reason to lie”.

15. Mr. Burke also pointed out that the constable had been a court officer since 1994 and would be well aware of the proper standards of conduct, even though she was on a probationary status as an officer, of the Toronto Police Service at the time of the alleged harassment. He also noted an incident wherein the Sergeant had made a complaint against the constable in August 1998.

16. Mr. Burke charged that the Hearing Officer did not adequately consider the evidence concerning the assessing of the constable’s credibility given that she could not recall numerous points relative to specifics surrounding the “paid duty” occurrence.

17. Mr. Burke further argued that while the Hearing Officer made an explicit finding with respect to the weight to be attached to the defence’s theory of possible motive, no similar finding or reasoning was provided as to why Sergeant Lewin’s denial should not be accepted. He noted Constable Sommers’ testimony to the effect that Sergeant Lewin “had very high standards” and would probably not say the alleged comments and suggested that it should have been given more weight.

18. Mr. Burke further submitted that the Hearing Officer erred in finding that the constable was “clear about the words she heard”. He argued that such a conclusion was inconsistent with the totality of the constable’s testimony wherein she has stated that she knew “there were comments made, but (she did not) remember exactly (what was said but), they were the same kind of thing.”

19. Mr. Burke also noted that the constable testified that the inappropriate comments did not offend her and that they were not directed at her. Additionally, there were no public complaints registered in the matter.

20. With respect to sentencing Mr. Burke contends it is too harsh. To this end he drew our attention to Langlois and Ontario Provincial Police (1992), 2 O.P.R. 945 (OCCPS). That case concerned an officer who was found guilty of discreditable conduct for violation of the Ontario Liquor Act and regulations for selling two cases of beer through the back door of his wife’s restaurant, on a Sunday. The penalty imposed was loss of 5 days leave.

21. He also cited Davidson, Delves and Rospond and Durham Regional Police Service (1976), 1 O.P.R. 276 (OPC). In that case three officers were found guilty of discreditable conduct for remaining and watching indecent acts – described by the judge as a “disgusting sexual exhibition” – committed at a stag party. The penalty imposed was forfeiture of 10 days leave and a reprimand.

Respondent’s Position:

22. George S. Monteith, on behalf of the Respondent took issue with the Appellant’s submissions.

23. On the question of whether the Hearing Officer failed to adequately consider the lack of corroborating evidence he argued that there is no common law requirement for such proof in civil matters. Re: Ibbotson (1984), 2 O.A.C. 173 (Ont. Div. Crt.). Further, the evidence of the constable, which the Hearing Officer found to be highly credible, satisfied the Respondent’s onus to prove misconduct on clear and convincing evidence.

24. As to the question of the Hearing Officer failing to adequately provide weight to the testimony of the constable considering the deficiencies in her memory, it was submitted that proper consideration was given and that her testimony was “clear, truthful and without prejudice”. It was noted that the constable did not make the complaint of her own volition and did so only as a consequence of her being interviewed by Detective Field. Given that she was not overly shocked or offended it is not surprising that she may be unable to remember precise details 10 months later.

25. Regarding the Hearing Officer failing to make credibility findings with respect to Sergeant Lewin’s denial of the allegations, Counsel quoted from page 7 of the decision. It states:

A straightforward denial of the allegation is one thing. However, I do find that his efforts to sully Constables Voelk’s character by creating a theory which suggests that it was her animus towards him over a single “time off” issue which led to her allegations, to be completely lacking in credibility.

26. Further, Mr. Monteith contended that the Hearing Officer correctly adjudged the testimony of Constable Sommers as being a matter of personal opinion and should be weighed accordingly. In this regard, he argued that the evidence was not misconstrued.

27. With respect to the sentencing, Mr. Montieth suggested that the penalty imposed was appropriate. He noted that there has been repeated denying of the remarks and no remorse demonstrated. Further, he suggested that Sergeant Lewin was in the position “to be a teacher and leader, one who provides counsel, instruction, guidance and correction” and that this should “never be more evident than when dealing with a probationary female constable”. In this regard, he argued that the Hearing Officer properly considered the need for specific and general deterrence.

28. He suggested that the imposition of 15 days forfeiture sends a clear message to Sergeant Lewin and all members of the Toronto Police Service. He observed that the real issue is that the comments were made and not that the constable was not offended by them. He argued that the remarks were “demeaning to the constable, demeaning to the Service and the policing profession”.

29. Counsel for the Respondent requested that the appeal be dismissed.

Decision:

30. We would thank Mr. Burke and Mr. Monteith for their excellent factums and presentations on behalf of their clients.

31. Counsel for the Appellant made a particular point of the lack of corroboration of the allegations made by the constable. He noted that interviews of the other attendant officers by Detective Field, failed to disclose that any of them had, at any time, heard inappropriate comments about women made by Sergeant Lewin. We were reminded that the constable testified that these officers “would have no reason to lie”.

32. We accept the submission by Respondent’s Counsel that there is not the same common law requirement for corroboration in civil law matters as there is in criminal cases. That being said, the issue becomes one of credibility

33. In previous cases, 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 (OCCPS) the Commission articulated the test to be applied to such cases 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 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 conclusion 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?

34. That is the test to be applied here.

35. To our mind the Hearing Officer appears to have carefully considered the testimony of the key witnesses (Sergeant Lewin and Constable Voelk). Based on his observations, he was satisfied that Constable Voelk was to be believed. In particular, we note the determination made by the Hearing Officer that “ I [do not] believe that with her short length of service she would have been sophisticated enough to concoct this allegation. In fact, she appeared to be very truthful in giving her testimony to both the prosecutor and defence counsel”.

36. Counsel for the Appellant also argued that the Hearing Officer failed to make a clear finding of credibility with respect to Sergeant Lewin’s denial of guilt and thereby erred. To our mind, the Hearing Officer did make such a finding. His statement was, “However I do find that his [Sergeant Lewin] efforts to sully Constable Voelk’s character by creating a theory which suggests it was her animus towards him over a single time off issue which led to her allegations, to be completely lacking in credibility”.

37. Further, Counsel suggested that the difference that arose between the constable and Sergeant Lewin when she was a duty officer under his command and the Sergeant entered a complaint against her work performance gave rise to an indication of a personal animus, or enmity between them. He further introduced the admission made by Detective Field of his awareness that there were some members of the Sergeant’s platoon who were “not particularly fond of Sergeant Lewin”, that when he “took them to task … there’s been bad blood ever since then”.

38. We find that, while such a condition may or may not, in fact, have existed, it cannot be permitted to affect the matter under question in this case. The essential question is whether the inappropriate comments were or were not made. This goes to the matter of the hearing itself, wherein the trier of fact had the advantage of hearing and seeing the witnesses at first hand, and was in a unique position to judge their credibility, sincerity and candour, and hear for himself the evidence as presented.

39. To our mind, it cannot be said that the Hearing Officer’s conclusions in this regard are without evidentiary foundation. Accordingly, we must uphold the Hearing Officer’s finding of guilt.

40. Having made that determination, the question comes to the matter of the penalty. As noted in More and York Regional Police Service (March 26, 2001, OCCPS), the Commission should not lightly interfere with the penalties imposed by a Hearing Officer. This is given that it is a decision reached after a full and fair consideration of all the relevant factors and represented the seasoned judgement of a senior officer who was familiar with its expectations and, as such, was in a unique position to determine an appropriate disposition.

41. In Williams and Ontario Provincial Police, the Commission identified several factors that should be taken into account by a Hearing Officer. These include the nature and seriousness of the offence, the ability to reform or rehabilitate the officer and the damage incurred to the reputation of the police force. Additionally, the need for deterrence and management’s approach to the offence in question must be considered. Further, inclusion has to be made of recognition of the employment history and experience of the officer in question.

42. At issue is the conduct of a sergeant, with over 27 years of service, who was in charge of a “paid duty” event that was very much in the public eye i.e. the CNE Casino and the Molson Amphitheatre. During the course of these duties, he made offensive remarks about the physical attributes of passing female members of the public.

43. Clearly, it is not appropriate for police officers to be making demeaning and sexist remarks while in uniform and on duty. It makes no practical difference whether or not the comments were directed at third parties or overheard. See Deviney and Toronto Police Service (February 10, 1999). That case concerned an officer who made a racist comment over the telephone about a member of the public to another officer. This comment was not overheard by the subject of the remarks or other officers present.

44. Further, it makes no difference whether or not the remarks or actions were found to be immediately offensive to the person who may have received them. See Burdett and Guelph Police Service (May 13, 1999, OCCPS). That case concerned an officer who delivered a threatening Christmas card to a member of the public whom he suspected of breaking into his home. At page 10 of that decision the Commission wrote:

The recipient of the card said that he received a “weird” card from a gentleman who was “nice, polite and well dressed” who he had never seen before. He also testified that this card did not affect him in “any way, shape or form”. EP was unaware that Constable Burdett was a police officer.

Counsel for the Appellant has asked us to find that this action on the part of Constable Burdett was not likely to bring discredit on the police service as there was no connection between Constable Burdett’s occupation and this action. We do not agree.

In our view, what Constable Burdett did can be perceived as threatening. The fact that the card had no impact on EP does not alter the nature of his act or make it right. As a police officer of many years standing, Constable Burdett ought to have known that personally delivering a threat cloaked as gentle persuasion in a Christmas card was not the way to deal with his situation.

45. In the same sense, the fact that Constable Voelk was not personally offended by the remarks in question does not diminish its nature.

46. In the same sense, the fact that Constable Voelk was not personally offended by the remarks in question does not diminish its nature.

47. To his credit, Sergeant Lewin has a fine employment history. His 27-year record contains many commendations including the Medal of Merit. However, two years before the events in question, he was found guilty of insubordination. For that offense he received a forfeiture of two days or 16 hours off.

48. In addressing the appeal for a lesser penalty, Counsel for the Appellant suggested that no reported cases were found which accurately reflect the factors to be considered in the present case. He drew our attention to Langlois and Ontario Provincial Police, Davidson, Delves and Rospond and Durham Regional Police Service and Brayshaw and Ontario Provincial Police (1992), 2 O.P.R. 936 (OCCPS). The latter concerned a sergeant who was found guilty of discreditable conduct for making unwelcome sexual comments, advances and touching of two female civilian members of the force. Penalty imposed was reduction in rank to first- class constable. Appeal was denied and sentence and conviction upheld.

49. We agree that these cases are not particularly helpful. There are, however, some useful parallels to be found in Deviney and Toronto Police Service. As noted earlier, that case concerned a constable with a 21 year unblemished work history who was found guilty of making an offensive racist remark about a member of the public to another officer over the telephone. The penalty imposed in that case was forfeiture of 15 days off or 120 hours.

50. Given the Sergeant’s recent disciplinary history, his position as a leader, guide, instructor and example to younger and probationary members of the service and especially to female persons, we find the imposition of the same penalty in this case to be appropriate. It certainly is within the range available to the Hearing Officer.

51. We therefore deny the appeal as it applies both as to guilt and penalty.

DATED THIS 23RD DAY OF JULY 2001

Barbara Morland Wellard Charles B. Rycroft

Member, OCCPS Member, OCCPS