Precious v. Hamilton Police Service, 2002 ONCPC 5

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

REASONS FOR DECISION

CONSTABLE ROBERT PRECIOUS Appellant

and

HAMILTON POLICE SERVICE Respondent

Presiding Members: Frederic G. Farrell, Q.C., Member Brenda Weese, Member

Appearances: David A. Wright, Counsel for the Appellant Brad Boyce, Hamilton Police Association James Greve, Counsel for the Respondent Robert Gaven, Student at Law

Hearing Date: Tuesday, November 6, 2001

This is an appeal of three findings of guilt made against Constable Robert Precious on February 21, 2001 by Deputy Chief Thomas R. Marlor (the “Hearing Officer”). These findings of guilt related to one count of insubordination and two counts of deceit contrary to sections 2(1)(b)(ii) and 2(1)(d) (ii) of the Code of Conduct found at Ontario Regulation 123/98 (the “Code”).

In addition, this is an appeal of the penalty of twelve months reduction in rank to second-class constable with refresher training imposed on March 7, 2001.

Background:

On February 18, 1998, Constables Precious and Brett were dispatched to a domestic call. On arrival, the complainant, Ms. R., alleged that she had been assaulted by Mr. F.¹, a man with whom she had been in a relationship for about a year. Ms. R. informed the officers that Mr. F. had just departed with his belongings in a green garbage bag. Constable Brett took a description of Mr. F. and left to attempt to locate him. Constable Precious stayed with Ms. R. and questioned her about what had happened.

Constable Precious interviewed Ms. R. in her living room. He stated that Ms. R. was nervous and upset, and spoke in a disjointed manner, often jumping between events. He also stated that she was hard to understand, as were the sequence of events as she was describing them.

According to Constable Precious, Ms. R. said that Mr. F. had been lying on the couch. He was planning to watch a movie and when the movie was over they were going to play darts. Ms. R. was practicing with the darts. An argument started and Mr. F. called her a name. Constable Precious stated that Ms. R. told him that she became particularly angry about the name that Mr. F. had called her. She said “she went at him with a dart”. She asked him to give back her keys and get out of the house.

At this point, Constable Precious stated that he interrupted Ms. R. and cautioned her that both she and Mr. F. were under investigation and that she could be charged. He asked her if she understood and she indicated that she did. According to Constable Precious, Ms. R. then went on to describe how she had been standing near the kitchen and Mr. F. had grabbed her around the throat causing bruising and how she had been hit in the mouth while she was on the telephone calling the police.

Constable Precious and Ms. R. then moved to the kitchen. Constable Precious made a series of entries in his notebook and had Ms. R. sign it. The statement was brief and contained no reference to Ms. R. ‘going after’ Mr. F. with a dart or to his caution.

Mr. F. was charged with assault contrary to section 266 of the Criminal Code. He appeared before His Honour Judge B. Zabel of the Ontario Court of Justice (Provincial Division) in Hamilton on April 3, 1998. In her evidence at the trial, Ms. R. stated Mr. F. leapt at her over a coffee table, threw her onto the couch and held her by the throat for three or more minutes. She further stated that she had stabbed him in the side of the neck with a dart while he was choking her. Ms. R. stated that she had told the police officer “all of that”.

Constable Precious testified. His account of their meeting was significantly different from that of Ms. R. He denied that she had told him about Mr. F. leaping over the coffee table, throwing her on the couch and choking her for three minutes or more. He also testified that it was the first time he had heard about Mr. F. being stabbed with a dart.

At the completion of his examination-in-chief, Constable Precious was asked by the Crown Attorney whether or not he had recorded everything in his notebook that Ms. R. had said to him. He answered “yes”.

Mr. F. testified that he had called Ms. R. a name and she came quickly at him with a dart or darts in her hand. He stated he put out his hand and made contact with her throat to hold her back. He denied that there was a struggle on the couch or that Ms. R. had stabbed him in the neck with a dart.

At the conclusion of the proceedings, Judge Zabel found he could not reconcile the differences between the testimony of the accused and the complainant. He noted the “contradiction” between the testimony of Ms. R. and Constable Precious. Mr. F. was acquitted. By this time he had been in pretrial custody for 29 days.

The Crown Attorney was concerned with this turn of events. Following the trial, she spoke to Constable Precious in her office. According to her, she “asked Constable Precious whether … [Ms. R.] had told him that she had stabbed … [Mr. F.] with the dart, to which he clearly indicated to me, yes. And he then told me that had he put that in his notebook he would have had to charge her with assault with a weapon”.²

On April 16, 1998, the Crown Attorney’s office wrote the Hamilton Police Service. As a result, Sergeants Campbell and McGuire of the Professional Standards Branch were assigned to investigate the actions of Constable Precious. This investigation had both criminal and disciplinary aspects.

Constable Precious’ lawyer indicated to Sergeant Campbell that his client did not wish to make a statement with respect to the criminal investigation. A brief was prepared and forwarded to a Crown Attorney from outside the Hamilton Region.

Sergeant Campbell then appears to have turned his mind to the disciplinary concerns. On July 23, 1998, he wrote a four-page memorandum to Constable Precious. It contained an order to the officer to provide a written report, which fully and completely answered a series of questions, by August 10, 1998. These questions concerned the events of February 18 and April 3, 1998.

It also noted:

As I was aware that you chose not to give a statement in the criminal investigation, I have consulted with the Chief of Police, Kenneth D ROBERTSON and would advise that it is my view that any statement from you in response to this request is considered to be given under duress. In other words given involuntarily, and as a direct result of the compulsion of my order.

The memorandum concluded with an offer to make the Crown Brief available to assist Constable Precious in “responding to the questions that I am directing you to answer in this report”.

On August 4, 1998, Jeffrey Manishen, legal counsel for Constable Precious, responded to Sergeant Campbell. In his letter, he indicated that he understood that the matter of his client’s conduct was being submitted to the Crown Attorney “for review as to the possibility of the institution of criminal proceedings”. He asked that “the matter of any response by him [Constable Precious] to the order for report be dealt with after the decision by the Crown Attorney has been reached.”

The deadline to respond was changed to September 11, 1998. According to Constable Precious, prior to that date, he prepared a written response to the questions and forwarded it to Mr. Manishen. It would also appear that Mr. Manishen advised Sergeant Campbell that no statement would be provided by Constable Precious until any criminal proceedings were concluded. The requested response was not provided by September 11th.

Shortly, thereafter, Constable Precious was arrested and charged with the offence of perjury contrary to section 132 of the Criminal Code. On October 6, 1998, Constable Precious was also charged with six disciplinary offences. In summary, they were:

1. Insubordination: he failed to obey Sergeant Campbell’s order of July 27, 1998;

2. Discreditable Conduct: he failed to make full and accurate notes or occurrence reports of the events of February 18, 1998 (i.e. that Ms. R. had stabbed Mr. F. with a dart);

3. Deceit: he failed to record in his notebook and the occurrence report, information provided during the investigation (i.e. that Ms. R. had stabbed Mr. F. with a dart);

4. Neglect of Duty: he failed to report or advise the court during Mr. F.’s trial of information that had been provided to him during the investigation;

5. Discreditable Conduct: he gave false testimony at Mr. F.’s trial;

6. Deceit: he gave false testimony at Mr. F.’s trial.

The disciplinary proceedings were adjourned pending the outcome of the criminal proceedings.

The criminal trial ended March 7, 2000, with a directed verdict of acquittal by Mr. Justice W. Festeryga. The Judge concluded his decision by observing: “ … I would have thought rather than trying to visit the heavy stigma of a criminal record on the accused, that this matter could have been handled in some other way, perhaps through the Police Act, and if there were any wrongful act by this police officer it could have been handled in that way.”

The thirty-day appeal period passed. No appeal was filed by the Crown. The disciplinary proceeding was resumed. On September 12, 2000, Constable Precious provided Sergeant Campbell with a five and a half page statement responding to the ten questions asked 26 months earlier. This statement was the document that Constable Precious had provided to his lawyer in September of 1998.

The disciplinary hearing commenced October 12, 2000. Between October 12, 2000, and February 21, 2001, there were several days of testimony, arguments and submissions. On February 21, 2001, the Hearing Officer convicted Constable Precious of the allegation of insubordination and the two counts of deceit. The other allegations were stayed because the Hearing Officer found them to be similar to the other charges.

On March 7, 2000, the Hearing Officer directed that Constable Precious be reduced in rank from first-class constable to second-class constable for one year. As well, Constable Precious was directed to undergo a refresher course on the criminal investigative process.

Appellant’s Position:

Mr. Wright, Counsel for the Appellant, challenged the findings of the Hearing Officer both with respect to conviction on all three counts of misconduct and the penalty.

He raised four specific issues. He asserted that the Hearing Officer erred in:

1. convicting Constable Precious of insubordination, as the order to answer questions violated his Charter rights;

2. convicting Constable Precious of deceit with respect to the preparation of his notebook and occurrence report, by fundamentally misunderstanding the evidence, failing to make necessary determinations of credibility, applying irrelevant considerations, or failing to find clear or convincing evidence he had negligently or willfully made a false, misleading, or inaccurate statement;

3. convicting Constable Precious of deceit with respect to his testimony in court, by fundamentally misunderstanding the evidence, failing to make necessary determinations of credibility, or failing to find clear and convincing evidence that he negligently or willfully made a false, misleading or inaccurate statement; and

4. imposing the penalty of one-year demotion from first-class to second-class constable.

With respect to the first matter, Mr. Wright argued that Sergeant Campbell’s order to Constable Precious violated his rights guaranteed by section 7 of the Canadian Charter of Rights and Freedoms.

Counsel argued that the sole purpose for Sergeant Campbell’s questions was to further a combined criminal and disciplinary investigation. He suggested that when elements of a criminal and disciplinary offence are so similar, asking such questions does not serve a legitimate public purpose. Mr. Wright further argued that the purpose of the order was to obtain admissions and evidence against Constable Precious and was, therefore, a colourable attempt to obtain self-incriminating disclosure. In the alternative, Mr. Wright suggested that, even if the sole purpose was directed at disciplinary charges, asking such questions was not a legitimate public purpose in accordance with the Charter.

With respect to the second issue, Counsel argued that there was no clear and convincing evidence that Constable Precious had willfully or negligently made a false, misleading or inaccurate statement in his notes. Counsel suggested that there was a discrepancy in the evidence of Constable Precious and Ms. R. and that the Hearing Officer failed to address this discrepancy in his decision. In this regard, he noted that the written reasons of the Hearing Officer were brief and lacked a clear explanation for this part of his decision.

With respect to the third issue, Mr. Wright argued that there was “no clear and convincing evidence” that Constable Precious had willfully or negligently made a false, misleading or inaccurate statement with respect to the testimony given by him at the assault trial of Mr. F. He also noted that in his reasons, the Hearing Officer made no attempt to analyze Constable Precious’ statement.

With respect to the final issue, Counsel argued that the penalty imposed by the Hearing Officer was inappropriate since he did not consider prior disciplinary cases dealing with similar types of misconduct.

In support of his position, Counsel referred us to the 27 cases and citations.

Respondent’s Position:

In reply for the Respondent, Mr. Greve acknowledged that certain provisions of the Canadian Charter of Rights and Freedoms apply to the Service. However, he took the position that section 7 of the Charter has no application to police disciplinary matters. Moreover, he argued that, even if a police officer is being investigated for a related criminal offence, an order to account for administrative, regulatory or disciplinary purposes was not unlawful. Mr. Greve stressed that the Code requires a police officer to obey lawful orders. He suggested that no provision of the Charter permits a police officer to disobey an order to provide such a statement to a superior.

With respect to the second issue, Counsel argued that the findings of the Hearing Officer were fully supported by the evidence. In that regard, he stated that Constable Precious’ notebook was neither complete nor accurate. Important information was missing i.e. Ms. R.’s statement that she “went at him [Mr. F.] with a dart”. Constable Precious acknowledged that this statement was made to him. The absence of reference to this important information in Constable Precious’ notebook created a false, misleading or inaccurate statement.

With respect to the third issue, Mr. Greve asserted that the Hearing Officer made this finding of deceit on “clear and convincing evidence”. Counsel argued that this conclusion was supported by evidence of various witnesses, the absence of information in the officer’s notebook and his own testimony at the assault trial.

Mr. Greve further argued that the Hearing Officer did not fundamentally misunderstand the evidence, fail to make necessary determinations of credibility, fail to consider the position and evidence of Constable Precious or draw erroneous conclusions.

With respect to the final issue he argued that based upon the findings and given the seriousness of the offences the penalty imposed was neither excessive nor unreasonable.

In support of his position, Counsel referred us to 74 cases and citations.

Decision:

As noted above, the Appellant submits that the Hearing Officer erred in four respects. However, before discussing these issues it is imperative to understand the role of the Commission in such matters. It is a well established principle that an appellant authority or body like the Commission should only intervene if the Hearing Officer has made a manifest error, ignored conclusions or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it.

As was noted in the often cited case Williams and Ontario Provincial Police (1995), 2.O.P.R. 1047 (O.C.C.P.S.) 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 conclusions of the Adjudicator

as to (whether) the credibility of witnesses cannot be reasonably accepted.

Matters of credibility and findings of fact are clearly within the Hearing Officer’s domain.

It is not our role or function to merely substitute our decision for that of the Hearing Officer with respect findings of fact or for that matter a penalty. Credibility of witnesses and the finding of fact are clearly within the Hearing Officer’s domain. In Carmichael and Ontario Provincial Police (May 21, 1998, O.C.C.P.S.) at page 6 the Commission stated:

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 has been clear and convincing evidence presented. We also agree with the Respondent that generally it is not our role to assess the credibility of the 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.

Only in exceptional cases where the reasoning itself is evidently wrong, contains error, or cannot reasonably be accepted, will the Commission interfere with the conclusions made by the Hearing Officer on such matters.

In order to determine whether or not the above criteria has been satisfied we must pose this question: Are the conclusions of the Hearing Officer void of evidentiary foundation? In conjunction with this test, we must bare in mind the well-established principles as stated above.

1) Did the Hearing Officer err in convicting Constable Precious of insubordination because the order to answer questions violated his Charter rights?

Insubordination under the Code is defined as follows:

2. (1) Any … police officer commits misconduct if he or she engages in… (b) INSUBORDINATION, in that he or she…

(ii) without lawful excuse, diso beys, omits or neglects to carry out any lawful order.

Accordingly, the issues for the Hearing Officer were as follows:

1. Did Constable Precious receive an order?
2. If so, was that order lawful?
3. Did Constable Precious disobey, neglect or omit to carry out that order?
4. If so, did Constable Precious have a lawful excuse for doing so?

The answer to two of these questions is straightforward.

There is no doubt that Constable Precious was served on July 23, 1998, with a memorandum from Sergeant Campbell. This memorandum contained a clear order to provide a written report that fully and completely answered the questions contained therein. It also indicated that failure to comply would result in additional disciplinary charges. The initial deadline was August 10, 1998 and that was later extended until September 11, 1998.

Constable Precious sought legal advice. No reply was provided to Sergeant Campbell by the established date. Instead, his legal counsel made it clear that a response would not be made until criminal matters were resolved. The criminal matters were concluded on March 7, 2000. The appeal period with respect to that decision ended thirty days thereafter.

Constable Precious did not provide a written statement to Sergeant Campbell until September of 2000 when he received a further reminder. He gave evidence at the disciplinary hearing that “It never occurred to me immediately after the criminal trial that I should have acted more responsibly and taken the initiative in getting the document from Mr. Manishen at that time.”³

While the decision of the Hearing Officer was brief, he did make a finding that Constable Precious had received an order and that he failed to respond to that order for almost two years. Clearly, there was sufficient evidentiary foundation for the Hearing Officer to reach these conclusions.

At the disciplinary hearing, Constable Precious’ lawyer took issue with the lawfulness of the order and suggested that his client had an excuse for not obeying. This related to an alleged violation of Charter rights. The Hearing Officer chose not to address this issue in his decision. This is indeed regretful.

This situation mirrors that in Orr and York Regional Police Service (26 March, 2001, O.C.C.P.S.). At page 12 of that decision, the Commission wrote:

That leaves the final issue of whether or not the Appellant had a lawful excuse for disobeying or neglecting the order of Inspector Kirk. We are in agreement with the Appellant that this is an issue that the Hearing Officer did not specifically address in his decision. Clearly, lengthy arguments were made on behalf of Constable Orr

that the Charter provided him a lawful excuse for neglecting and disobeying the order. There appears to be nothing in the Hearing Officer’s judgment that indicates that he even considered the Charter arguments, let alone why he might have rejected them.

This is indeed unfortunate and is a clear and obvious deficiency. In Stitt and York Regional Police Service the Commission stated at page 1134:

In a situation such as this, one course of action would be to order a new disciplinary hearing. Certainly, if the matter hinged solely upon the credibility of witnesses, that would be our only option. If, however, the matter can be determined on the basis of evidence already

on the record, then this tribunal should do so and thus avoid further expenditure of time and money on the part of the individuals concerned and the public. Therefore we turn our attention to the evidence contained in the transcript of the disciplinary hearing.

We are satisfied that there is sufficient evidence on the record, to permit this Commission to render a decision on this final issue.

We adopt this logic and based on the facts of this case propose to take the same approach.

Section 7 of the Canadian Charter of Rights and Freedoms provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Supreme Court of Canada has held that a statutory compulsion to testify in a criminal proceeding can constitute a depravation of “liberty” within the meaning of this provision. See R v. S. (R.J.) (1995), 1995 CanLII 121 (SCC), 96 C.C.C. (3d) 1 (S.C.C.) at page 24.

To our mind, a requirement to produce a statement for the expressed purposes of a disciplinary investigation is not the same thing as a compulsion to testify in a criminal proceeding with potential penal consequences. Further, disciplinary proceedings are not criminal in nature, nor do they involve penal consequences.

Leaving this aside, when you analyze section 7, there are two clear parts to be explored, namely, whether a person’s right to life, liberty or security is affected and if so determined whether this deprivation is in accordance with the principles of fundamental justice.

If the purpose of the compulsion to answer questions serves a legitimate public purpose then the deprivation will be found to be in accordance with fundamental justice. On the other hand, if the compulsion was not for a legitimate public purpose, then a deprivation of liberty can be established.

Police officers are granted extraordinary powers at law. As a result, they are subject to a strict Code and a legislative regime that holds them accountable. They are obliged to obey lawful orders. To our mind there is a legitimate public purpose in requiring police officers to account for their actions while in uniform and on duty to ensure that they meet the requirements of the Code. This can include compelling an accounting by way of a written or oral statement. See Orr and York Regional Police Service and Gregg and Midland Police Service (11 December, 2001, O.C.C.P.S.).

While some of the questions posed to Constable Precious are poorly expressed, we see no reason to dispute Sergeant Campbell’s assertion in his memorandum of July 23, 1998 that the information requested was for “considering the question of any possible Police Act charges”. Accordingly, they were for a proper public purpose. Further, in our view, statements produced would have been involuntary, subject to ‘derivative use immunity’ and thus could not have been used as evidence in criminal proceedings.

Even assuming that we were wrong in all of the above, it is clear that the criminal proceedings against Constable Precious were concluded on March 7, 2000. The order against him was still outstanding. Yet, it was still not complied with for several months. The duty to comply with the order still rested with Constable Precious. That duty was not met in a prompt and timely manner.

Accordingly, in our view the conviction with respect to insubordination stands.

2) Did the Hearing Officer err in convicting Constable Precious of deceit with respect to the preparation of his notebook and occurrence reports?

The Code defines deceit as follows:

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

(d ) DECEIT, in that he or she …

(ii) willfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties.

A charge of deceit against a police officer is a very serious matter.

The Commission has examined the nature of these provisions in previous decisions. In Lloyd and London Police Service (20 May, 1999, O.C.C.P.S.) at pages 10 to 11 it was described as follows:

In Perry and York Regional Police Service (1972), 1 O.P.R. 89 (O.P.C.) the term “deceit” was defined as follows”

A fraudulent and cheating misrepresentation, artifice or device, used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon.

This definition remains sound.

In order to establish a charge of deceit it is necessary to show that an officer “willfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties”. As was noted in McCoy and Fort Francis Police Services (1969), 1 O.P.R. 16 (O.P.C.) that to properly convict an officer under this provision it is necessary to show “an intention to deceive”.

Further, an inaccurate statement by itself, in the absence of proof of willfulness or intent will not support a conviction. As we said in Burgess and St. Thomas Police Service (1989), 2 O.P.R. 822 (O.P.C.) at page 828:

The above-noted statements which constitute the heart of

the charge of deceit can reasonably be said to be inaccurate and incomplete. It is a long mile, however, between the point at which one can find a statement inaccurate and the point at which one can find that a statement was made with intent to mislead or deceive.

A similar view was expressed in Graham and Ontario Provincial Police (1985), 2 O.P.R. 663 (O.P.C.).

In disciplinary proceedings the standard of proof is “clear and convincing evidence”. In Allan v. Munro (Ont. Bd. Inq., 27 July, 1994) at page 11 “clear and convincing was defined to mean “weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to the fair and reasonable conclusion that the officer is guilty of misconduct”.

The central question for us is whether the decision of the Hearing Officer was void of evidentiary foundation. Specifically, did the Hearing Officer have “clear and convincing evidence” of intention to deceive in the preparation of Constable Precious’ notebook and occurrence report?

It is obvious that Constable Precious had a different version of events of February 18, 1998 from that of Ms. R. Both versions were given under oath at the assault trial of Mr. F. Constable Precious stated that after he had arrived at Ms. R.’s apartment he had questioned her. In the course of their discussion, he indicated that she told him that there had been an argument, that she became angry and that “she went at him [Mr. F] with a dart” telling him to give back her keys and to leave the premises. Constable Precious also indicated that he advised her that both she and Mr. F. were under investigation and that if she had committed an assault with a weapon she could be charged. She then went on to describe how Mr. F. grabbed her around the throat, her bruising and being hit by him in the mouth.

Constable Precious indicated that Ms. R. had given him a statement that she subsequently signed. At the disciplinary proceeding, he stated that he did not include in his notes anything concerning the dart or his caution since, at the time, in his judgment it was not relevant to the assault by Mr. F. He states that he had attempted to explain this to the Crown Attorney following the criminal trial, but that she would not allow him to finish. He testified that he was surprised to hear Ms. R.’s testimony at the assault trial of Mr. F, that she had “stabbed him [Mr. F.] in the neck with a dart”.

The decision of the Hearing Officer with respect to this alleged deceit is very brief. In McNab and Ontario Provincial Police (1997), 3 O. P.R. 1193 at 1199-1200, the Commission stated that reasons should include at least the allegations against the police officer, the material facts and the law relied upon and the conclusion and the reasoning upon which it was made. Also, in his decision, the Hearing Officer should make determinations concerning credibility where applicable.

In this case, the Hearing Officer focused on the fact that he believed that Ms. R. had been victimized by the ‘entire process’. He concluded that Ms. R. called the police for help with respect to an assault and in the end she was subjected to extensive questioning by the investigating police officers, having to give testimony at an assault trial and having to give further evidence at the perjury trial. To his mind, this was all because Constable Precious failed to maintain proper notes.

The Hearing Officer dwelt on the fact that Ms. R. was at all times consistent in her statement that she told Constable that she “went at him with a dart”. As a result, he concluded that there was “clear and concluding evidence” that Constable Precious was guilty of deceit for failing to make complete and accurate notes of information provided to him while conducting an assault investigation.

We have carefully read the decision of the Hearing Officer. We believe that his reasons for decision are deficient. As noted earlier there is a “long mile” between finding that a statement is inaccurate and determining that it was made with deliberate intention to deceive. Unfortunately, the Hearing Officer chose not to address this essential element. The Hearing Officer did not engage in any analysis, matching the facts of the case against the intent of Constable Precious, nor did he establish that he was intentionally deceitful based upon the evidence.

Constable Precious gave an explanation for his conduct. It is important to remember that this incident arose over a domestic dispute. Officer Precious and his partner were summoned to the residence of Ms. R. after she placed a 911 telephone call to the police. The atmosphere at the residence of Ms. R. was very emotional and traumatic as can be expected. Ms. R. had been the victim of an assault during a domestic argument. It is understandable that there could be an element of confusion in the relaying of events to a police officer as to what had transpired.

The Hearing Officer chose not to address this, but instead chose to emphasize his annoyance at the inconvenience to which Ms. R. had been subjected. This was irrelevant to the central issue as to whether or not Constable Precious was guilty of deceit.

Accordingly, we have concluded that the reasons given by the Hearing officer are seriously deficient in that they fail to establish the necessary evidentiary foundation to sustain the conviction of deceit so far as the maintaining of his notebook or occurrence report.

Accordingly, the conviction of this count of deceit cannot stand.

3) Did the Hearing Officer err in convincing Constable Precious of deceit with respect to his testimony in court?

Unfortunately, the same logic must apply to the conviction with respect to the charge of deceit arising out of Constable Precious’ testimony at Mr. F.’s assault charge.

The Hearing Officer quoted from the transcript of the trial of Mr. F. with respect to a particular question put to Constable Precious at the assault trial. It was as follows:

Question “Now she tells us today under oath that she told you all of this about the dart and the coach, and the jumping over the table. Did she tell you that at the scene?”

Answer “No”⁴

The Hearing Officer then went on to conclude at page 5 of his decision “As a result of Officer Precious’ testimony, the charge against [Mr. F.] resulted in a Peace Bond …. Further, Ms. [R.] was re-victimized by the judicial system as a direct result of the poor performance of Officer Precious in this investigation. Therefore, on clear and convincing evidence, I find Officer Precious guilty of the misconduct of deceit and that he did fail to disclose evidence within his knowledge against the accused, [Mr. F.] This resulted in [Mr. F.] not being properly dealt with by the judicial system”.

The Hearing Officer clearly blamed Constable Precious for the fact that Mr. F. received only a Peace Bond instead of a conviction with respect to the assault on Ms. R. The Hearing Officer also blamed Constable Precious for what he described as Ms. R. being re-victimized by the judicial system based upon the foregoing.

In giving his reasons for a decision, it is not sufficient for the Hearing Officer to merely state that there is clear and convincing evidence. It must exist and be established. Clear and convincing evidence is evidence which meets the standard established in the case Allan v. Munro namely weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution can come to the fair and reasonable conclusion that the officer is guilty of misconduct.

The reasons of the Hearing Officer for his finding of misconduct in this matter as set forth in his decision were weak as opposed to weighty, cogent and reliable and did not contain a proper and analytical matching of the fact situation with the statutory definition of deceit. Again, to be guilty of deceit, the conduct must be willful or negligent which would require at the very least an analysis of the state of mind and behaviour of the officer at the relevant time.

Did the officer intentionally attempt to deceive or was he negligent resulting in a false, misleading or inaccurate statement pertaining to his official duties? Willful requires an analysis of intent which could include motive while negligence would give rise to an analysis of behaviour and if such behaviour resulted in a breach of a duty of care. The Hearing Officer did not engage in any such analysis in matching the facts of the case against the intent of Constable Precious. Nor did he establish that Constable Precious was intentionally deceitful based upon the evidence.

In this regard, we noted that at the conclusion of the criminal proceedings, His Honour Judge B. Zabel of the Ontario Court of Justice (Provincial Division) assessed the credibility of both Constable Precious and Ms. R. He found that Constable Precious testified in a clear and direct fashion and concluded he was a credible witness. He also found that Ms. R. was firm in her responses and concluded that her testimony in isolation was credible testimony.

We also note that at Constable Precious’ perjury trial, the presiding Judge, The Honourable Mr. Justice W. Festeryga stated “…I find that there is not any evidence that the accused intended to mislead the court. That, in my view, is the most important part of the charge. As stated by Mr. Manishen, the accused may have been misguided; he may have wanted to help [Ms. R.]. But, in my view, that does not amount to an intention to mislead the court, which is an essential element of the charge. Therefore, I acquit the accused.”⁵

We agree with this finding as such set aside this conviction for deceit.

4) Did the Hearing Officer err in imposing penalty?

The Hearing Officer on March 7, 2001 rendered his decision on penalty after having found Constable Precious guilty on three counts of misconduct on February 21, 2001 (two counts of deceit and one count of insubordination). The penalty imposed consisted of a reduction in rank from first-class to second-class constable for a period of twelve months. He also directed him to attend the next available refresher course to correct his misunderstandings of the criminal investigation process.

This brings us to the last issue of this appeal, namely, did the Hearing Officer err in imposing the penalty of a one-year demotion. We must keep in mind that this penalty was an all inclusive for the three counts of misconduct. We have set aside the decision of the Hearing Officer with respect to the conviction of Constable Precious with respect to the two counts of deceit and upheld his decision with respect to one count of insubordination.

When assessing a penalty there are a number of key factors that we must consider and weigh. The test to be applied was set out in Reilly and Brockville Police Service (12 May, 1997, O.C.C.P.S). At page seven in that decision, the Commission stated:

In Williams and OPP the Commission identified three key elements to be taken into account. These include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer,

and the damage to the reputation of the police force that would occur if the officer remained on the force.

There are also other factors which can be relevant, either mitigating or aggravating the penalty depending on the particular misconduct in question. They include the officer’s:

• employment history and experience;

• recognition of the seriousness of the transgression; and

• handicap or other relevant personal circumstances.

Finally, other considerations could include provocation, the need for

deterrence and concerns arising from management’s approach to the misconduct in question.

When imposing penalty it is also important to take into account prior disciplinary cases dealing with similar types of misconduct. The reason for this is simple. As the Commission stated at page 615 in its decision in Schofield and Metropolitan Toronto Police: “Consistency in the disciplinary process is often the earmark of fairness. The penalty must be consistent with the facts and consistent with similar cases that have been dealt with on earlier occasions.”

The Commission is always hesitant to substitute its own thoughts on the fairness of the penalty for those of the Hearing Officer who heard the evidence, viewed the witnesses and is close to the needs of the force and of the community. While the Hearing Officer did fail to consider or at least refer to disciplinary cases dealing with similar types of misconduct, (which is a significant flaw in his decision on penalty) we must keep in mind that the penalty was an all-inclusive penalty based on three counts of misconduct, two of which have now been revoked. Accordingly we must consider what is a fair penalty for the remaining conviction of one count of insubordination.

The Hearing Officer did consider the classic principles when considering penalty to be imposed on an officer found guilty of misconduct, namely, gravity of the misconduct, specific deterrence, general deterrence, rehabilitation, the employment record of the officer including his years of service, his unblemished record and commendations. The question before us is: what is the appropriate penalty for Constable Precious with respect to his conviction of one count of misconduct namely insubordination?

It is important to keep in mind that at the time of the incident Constable Precious had been employed with the Service as a police officer for 24 years. His record would appear to be unblemished. During his career, he had received 20 commendations and several excellent assessment reports from his superiors. It would seem that he is an excellent police officer and a credit to the Hamilton Police Service. It is indeed unfortunate that he now finds himself in this current situation. Insubordination is a very serious offence. Police officers must obey lawful commands of their superiors if order is to be maintained within the system. Clearly, a police officer cannot pick and choose what orders he wants to obey or when. It is critical to the legal process and to maintaining law and order in a civilized society that police officers follow lawful orders.

While the gravity of the misconduct must be reflected in our ultimate decision on penalty, it must be balanced by other factors. Given his unblemished record of years of distinguished service with the Hamilton Police Service we are satisfied that he can be readily rehabilitated and that this experience together with all of its consequences will deter him from any future repetition of this misconduct and deter others from making the same error in judgment. We have also taken into consideration the fact that his initial failure to respond to a lawful order was based in part upon advice of counsel. However, we must keep in mind that his failure to produce a response to a lawful order continued for a significant period of time after having had the opportunity to obtain legal advice with respect to his rights.

Our responsibility is to ensure that the penalty is both appropriate and fair and at the same time consistent with other decisions for similar conduct. A noteworthy comparison to our fact situation is the recent case of Orr and York Regional Police Service. In that, case Constable Neil Orr appealed to the Commission with respect to his conviction of insubordination that arose because he failed to answer an order on the advice of his counsel on the basis that it would violate his Charter rights. The Hearing Officer had imposed the penalty of 24 hours of time and the Commission upheld this penalty.

The Commission has concluded based upon the Orr decision, that a similar penalty is justified. For the above reasons, the penalty is hereby varied to a forfeiture of 24 hours pay.

DATED AT TORONTO THIS 10TH DAY OF MAY, 2002

Frederic G. Farrell, Q.C. Member, OCCPS

Brenda Weese Member, OCCPS

Footnotes

1. 1The names of all non-police personnel have been abbreviated
2. 2Page 299 of Volume 3 of transcript of disciplinary hearing dated October 13, 2000
3. 3page 34 of volume 4 of transcript dated November 21, 2000.
4. 4Page 26 of transcript of criminal proceedings before Judge B. Zabel dated April 3, 1998
5. 5Pages 2 and 3 of decision of Judge W. Festeryga