Constable Claude Armstrong v. Peel Regional Police Service, 2002 CanLII 63871

ONTARIO CIVILIAN POLICE COMMISSION

DATE:

July 18, 2002

FILE:

OCPC-02-006

CASE NAME:

CONSTABLE CLAUDE ARMSTRONG AND THE PEEL REGIONAL POLICE SERVICE

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

BETWEEN:

Constable Claude Armstrong

APPELLANT

-and-

Peel Regional Police Service

RESPONDENT

DECISION

Panel: E. Kelly Culin, Member Michele Shephard, Member

Hearing Date: April 4, 2002

Hearing Location:

Appearances:

William R. MacKenzie, Counsel for the Appellant

Ian Scott, Counsel for the Respondent

I. Introduction

1. This is an appeal from a conviction on one count of discreditable conduct, contrary to section 2 (1)(a)(xi) of the Code of Conduct found at O. Reg. 123/98 (the “Code”) by Superintendent D’Arcy Honer (the “Hearing Officer”) on September 19, 2001.

2. Constable Armstrong also appeals the penalty imposed on September 21, 2001 by the Hearing Officer that he be dismissed in 7 days unless he resigned.

II. Background

3. Constable Armstrong is 38 years old. He commenced his employment with the Peel Regional Police Service as a cadet in September of 1988. In December of the same year, he was appointed as a fourth class constable and thus became a police officer.

4. His work history has not been without problems. His file contains a number of commendations and positive assessments, however it also includes an extensive disciplinary history. This includes 27 formal counselings and seven disciplinary convictions. The last conviction was on March 20, 1997.

5. The facts giving rise to this appeal are complex and much in dispute. Essentially, sometime in the summer of 1998 Constable Armstrong agreed to obtain a police jacket and hat for a neighbor. The neighbor had a sixteen-year old daughter named P.

6. At some point towards the end of the summer, Constable Armstrong appeared at P.’s residence with the jacket. She states that it was early in the afternoon and she was home alone. She invited Constable Armstrong into the house. P. states that after some inappropriate conversation he grabbed her breasts. She asked him to stop and he left. P. says that she was embarrassed about this incident and told no one.

7. P. indicates that she had no direct contact with Constable Armstrong until around Christmas. She says that she was home alone again and Constable Armstrong appeared in the early afternoon. On this occasion she states that Constable Armstrong forced her to perform oral sex and have intercourse. P. says that she was afraid to report this matter.

8. Constable Armstrong strongly disagrees with this version of events. He indicates that he lived around the corner from P. and her family and has known them for several years. He described P. as a ‘different’ kid whom he tried to help with advice. He says that she started to call him every day and became ‘attached’ to him with ‘more than … a little crush’ until it got to the point where on one occasion she was ‘coming on’ to him. He acknowledged some kissing, hugging and P. sitting on his lap (all initiated by her). He agreed that there were times when he had been alone with P. in her bedroom to listen to music. However, he says that someone else was always in the house and sex never took place.

9. In April of 1999, P. spoke to a guidance counselor at her school. She told the counselor that she was being ‘bothered’ by a friend of her family who was also a police officer (i.e. waiting for her outside of her home after school, saying inappropriate things and ‘coming on’ to her) and that she was ‘afraid’ of him and wanted to be left alone. The guidance counselor called Constable Armstrong at his home and told him that she was giving him ‘one warning’ to stay away from P. or she would “blow [him] … out of the fucking water”. She says that she told Constable Armstrong that he was a ‘sick man’ who needed help.

10. The guidance counselor states that Constable Armstrong thanked her for giving him a chance and did not refute her assertions that he was inappropriately ‘bothering’ P. She said that Constable Armstrong denied being ‘sick’ but acknowledged that he may have made “errors in … judgment”.

11. After this phone call, P. states that she did not hear from Constable Armstrong for almost a year. She says that he called her in March of 2000. She states that Constable Armstrong told her that given that her 18^th birthday was coming up that she would soon be ‘legal’. According to P. he then asked if “there might be a chance that we could have something else”. She took that to mean further sex and said ‘no’.

12. Constable Armstrong denies any harassment of P. Indeed, he states that she phoned him up a few weeks after the telephone call from the guidance counselor and apologized. He indicated that P. called his home and hung up whenever his wife answered. He stated that he felt harassed by P.

13. P. states that a few weeks after the March phone call, Constable Armstrong was at her school in uniform. He was there with two other officers as part of a special assembly. As well, she says that over the course of the summer Constable Armstrong called, paged her, and stopped her on the street in his car while she was walking her dog or coming home from her part time job at a local day care. On one occasion he asked if she wanted to baby-sit his two children.

14. In September, when P. returned to school she spoke to the vice principal about Constable Armstrong. It appears that P. wanted her to call Constable Armstrong. Instead, the vice principal contacted the police and an investigation was initiated. P. gave a video statement to the Internal Affairs Bureau on September 18, 2000.

15. In early November, P. told her supervisor at the daycare that the previous day she had been ‘attacked’ on the way to work and robbed of $50.00. She had a scratch mark on her face. The suggestion was that the assailant was Constable Armstrong. This matter was reported to the police.

16. P. subsequently acknowledged that this statement was not true. She indicated that she ‘just wanted the whole mess to be over’ and that she was ‘getting sick and tired of the whole police thing’. She stated that she did not want anything ‘bad’ to happen to Constable Armstrong.

17. On November 23, 2000, Constable Armstrong gave a lengthy video statement. He chose not to be represented by counsel. He denied the allegations of sexual assault and harassment. He seemed to be of the view that P. was the aggressor and the allegations against him were some form of ‘payback’ for rejection.

18. On December 7, 2000, a Senior Crown Attorney concluded that criminal charges would not be brought against Constable Armstrong. Instead, on January 24, 2001, disciplinary proceedings of discreditable conduct were commenced. The specific allegation was that Constable Armstrong:

…maintained an inappropriate relationship with [P.] who reported the matter to Peel Regional Internal Affairs on September 14, 2000. [P.] was 18 at the time of her complaint and alleged sexual assaults and harassment by Constable Armstrong at her family home dated back to when she was 16. [P.] approached a school guidance counselor in April, 1999 who, knowing him to be a police officer, telephoned Constable Armstrong and told him to discontinue his contact with [P.]. [P.] later approached a school vice principal who encouraged her to report the matter to the police.

Constable Armstrong admitted to hugging and kissing [P.]. His actions, extremely reprehensible in themselves, have been brought to the attention of school officials. Constable Armstrong’s actions with [P.] have brought discredit to the reputation of the Peel Regional Police.

19. Constable Armstrong pled not guilty.

Hearing

20. The disciplinary proceeding took place before the Hearing Officer on September 10, 11, and 12, 2001. Mr. Paul Bailey of the Peel Regional Police Association represented Constable Armstrong. Ms. Lynn Dobson assisted him.

21. Several witnesses were called including P., her guidance counselor, her vice principal, her daycare supervisor, her mother, the officer who responded to the vice principal’s call and Constable Armstrong. A number of exhibits were received including transcripts of both P. and Constable Armstrong’s video statements, the tape of Constable Armstrong’s interview and a summary of his service record.

22. The Hearing Officer found Constable Armstrong guilty on September 19, 2001 and received submissions with respect to penalty. Two days later he directed that “Constable Armstrong be dismissed in seven days unless he resigns before that time”. Both decisions were appealed to this Commission on September 24^th.

Appellant’s Position

23. Mr. MacKenzie, on behalf of the Appellant seeks to overturn both the conviction and penalty.

24. He asserted that Constable Armstrong was denied natural justice and fairness in the hearing process. He argued that the Notice of Hearing and Statement of Particulars were vague, subjective and prejudicial. Specifically, he suggested that the allegation of an ‘inappropriate relationship’ was too vague and subjective given that it is not currently unlawful for a 34 year old to have a consensual relationship with a 16 year old.

25. Mr. MacKenzie took issue with the fact that details from Appellant’s interview were referred to in the Statement (i.e. “Constable Armstrong admitted to kissing and hugging [P.]”). He also suggested that the inclusion of certain words created both an apprehension of bias and irreparable prejudice (i.e. “His actions, extremely reprehensible in themselves…”).

26. Mr. MacKenzie submitted that principles of natural justice and fairness were not met given that the Service employed an experienced former Crown Attorney to prosecute while Constable Armstrong was represented by an agent. He suggested that given the disparity in experience and ability between the two that Constable Armstrong was “for all intents and purposes “unrepresented”.

27. Mr. MacKenzie argued that the Hearing Officer made a number of findings of fact that were unsupported by the evidence and misdirected himself on the admission of certain evidence relevant to the credibility of the complainant. The latter refers to a letter from the local Crown Attorney relating to the decision not to initiate criminal proceedings. It also concerns a prior allegation of sexual assault.

28. Counsel argued that the Hearing Officer erred in law in his application of the doctrine of ‘consciousness of guilt’. This concerned Constable Armstrong’s failure to take issue with the guidance counselor’s allegations of inappropriate conduct during their telephone conversation.

29. Mr. MacKenzie suggested the Hearing Officer applied different standards in the assessment of the credibility of P. and Constable Armstrong and failed to apply the proper burden of proof (i.e. clear and convincing evidence). He argued that given that this case involved the loss of employment that the standard should rise almost to the level of that used in criminal proceedings (i.e. beyond a reasonable doubt).

30. In terms of penalty, Mr. MacKenzie stated that the Hearing Officer incorrectly treated Constable Armstrong’s plea of ‘not guilty’ as an aggravating factor. As well, he suggested that the penalty itself was harsh and excessive given the nature of the conviction, the fact that the conduct in question occurred ‘off duty’, the employment record of the Appellant and the financial repercussions of termination.

31. In conclusion, Mr. MacKenzie asks that we either overturn the conviction or reinstate Constable Armstrong.

32. In support of these arguments, he brought a number of cases to our attention. They included: Kane v. University of British Columbia 1980 CanLII 10 (SCC), [1980], 1 S.C.R. 1105 (S.C.C.), Hanis v. Teevan 1998 CanLII 7126 (ON CA), [1998], O.J. No. 2560 (Ont. C.A.), R. v. Stillman 1997 CanLII 384 (SCC), [1997], 1 S.C.R. 607 (S.C.C.), R. v. Tran (2002), 2001 CanLII 5555 (ON CA), 55 O.R. (3d) 161 (Ont. C.A.), Lischka v. Criminal Injuries Compensation Board (1982), 1982 CanLII 1840 (ON HCJ), 37 O.R. (2d) 134 (Ont. Div. Ct.), Harper v. The Queen 1982 CanLII 11 (SCC), [1982], 1 S.C.R. 2 (S.C.C.), R. v. Arcangioli 1994 CanLII 107 (SCC), [1994], 1 S.C.R. 129 (S.C.C.), R. v. Owen (unreported, 26 October 26, 2001, Ont. C.A.), R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. 53 (Ont. C.A.), R. v. C.(J.) (2000), 2000 CanLII 1931 (ON CA), 145 C.C.C. (3d) 197 (Ont. C.A.), King v. Leitch (Ont. Bd. Inq., 29 November, 1993), R. v. Petrovic [1996], O.J. No. 198 (Ont. C.A.) and R. v. A. (K.) (1999),137 (3d) 554 (Ont. C.A.).

33. As well, Mr. MacKenzie cited: R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.), R. v. Rezaie (1997), 1996 CanLII 1241 (ON CA), 31 O.R. 713 (Ont. C.A.), R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.), R. v. A.K.K. [2001], O.J. No. 3745 (Ont. Div. Ct.), Ciotka and Ontario Provincial Police (1994), 2 O.P.R. 984 (O.C.C.P.S.), Cate and Peel Regional Police Service (unreported, 17 July, 1998, O.C.C.P.S.), Ontario Provincial Police v. Silverman (2000), 2000 CanLII 29051 (ON SCDC), 188 D.L.R. (4^th) 758 (Ont. Div. Ct.), Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Johnson and Barrie Police Service (1985), 2 O.P.R. 643 (O.P.C.) and Ball and Peel Regional Police Service (unreported, 19 July, 1994, Hearing Officer G. Crowell).

Respondent’s Position

34. Mr. Scott, on behalf of the Respondent took issue with Mr. MacKenzie’s submissions.

35. He asserted that the disciplinary hearing was fairly run. He argued that the allegations in the Statement of Particulars were designed to permit the accused officer to understand the case that he was to meet and prepare a proper defence. He suggested that the allegations were sufficiently clear and if proven, would constitute discreditable conduct within the meaning of the Code given that police officers are held to a higher standard than ordinary citizens.

36. He noted that the Statement contained allegations and not evidence. These allegations were subject to proof. Further, while an officer cannot be compelled to testify at a disciplinary proceeding, there is nothing to prevent the admission of prior statements at the hearing itself.

37. Mr. Scott noted that a police officer may be disciplined for off-duty conduct. An officer can chose to be represented at a disciplinary hearing by an agent. He argued that for a decision to be overturned because of an agent’s conduct, it would be necessary to identify specific acts or omissions that demonstrate incompetence and resulted in a miscarriage of justice.

38. Mr. Scott submitted that the Hearing Officer’s findings of fact were supported by the evidence and met the legislated burden of proof. He suggested that the role of the Hearing Officer was to make findings of credibility and that his conclusions in this regard were both well founded and corroborated. He argued that once the testimony of P. was accepted then there was a “mountain” of evidence to support the allegations.

39. Mr. Scott submitted that the Hearing Officer was correct in refusing to accept the Crown’s letter (given that the Crown had never met P. or any witnesses to the case) and in not permitting Mr. Bailey to cross-examine P. regarding a third party allegation of sexual assault. Further, he suggested that Constable Armstrong’s failure to respond to the allegations of the guidance counselor “does not square with the actions of a falsely accused police officer” and thus could be incorporated in an assessment of credibility.

40. Mr. Scott argued that the Hearing Officer did not treat the Appellant’s failure to plead guilty as an aggravating factor in sentencing. He suggested that the penalty imposed was appropriate, took into account all of the relevant factors and should not be disturbed.

41. In support of these submissions, Mr. Scott cited: R. v. Cote 1977 CanLII 1 (SCC), [1978], 1 S.C.R. 8 (S.C.C.), Ceyssens, P., Legal Aspects of Policing (Earlscourt Legal Press) pp 6-1 to 6-5, Williams and Ontario Provincial Police supra., Keefe and Ontario Provincial Police (1989), 2 O.P.R. 838 (O.C.C.P.S.), Silverman and Ontario Provincial Police (1997), 3 O.P.R. 1181 (O.C.C.P.S.), Sergeant X v. Ms. Y. (Ont. Bd. Inq., 27 June ,1994), Cristriano and Metropolitan Toronto Police Service (1997), 3 O.P.R. 1126 (O.C.C.P.S.), Burnham v. Metropilitan Toronto Police Association [1978], 2 S.C.R. 572 (S.C.C.), R. v. Appleton 2001 CanLII 21204 (ON CA), [2001], O.J. 3338 (Ont. C.A.), Gateman and London Police Service (unreported, 13 November, 1998, O.C.C.P.S.), Norris v. Loranger (Ont. Bd. Inq., 19 January, 1998), R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont. C.A.), R. v. Reilly (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151 (Ont. C.A.), Groat and Quinte West Police Service (unreported, 26 November, 2001, O.C.C.P.S.) and Bright v. Konkle (Ont. Bd. Inq., 17 March, 1997).

III. Decision

42. Disciplinary proceedings involving police officers are labor relations matters subject to the principles of procedural fairness and the rules of natural justice. Amongst other things, this includes a right to prior notice of the essential allegations against the officer with sufficient detail to permit the officer to know the case that he or she must meet.

43. On January 24, 2001, Constable Armstrong was served with a Notice of Hearing alleging that he had violated section 2(1)(a)(xi) of the Code. That provision makes it a disciplinary offence for an officer to act “in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force.” The Notice included a Statement of Particulars that was set out earlier in this decision.

44. Prior to the disciplinary hearing, Mr. Bailey requested and received disclosure on behalf of Constable Armstrong. The records of the proceeding indicate that on April 4, 2001 he stated that he was satisfied with the disclosure that he had received. When the formal disciplinary proceeding commenced on September 10, 2001 there was no motion challenging either the Notice or Statement.

45. For this reason, we are satisfied that Constable Armstrong understood the essence of the allegations against him.

46. Further, while it may not be unlawful for a 16-year old girl to enter into a personal relationship with a 34-year old man, every woman is entitled to be free from unwanted, persistent and aggressive attention of a sexual nature. The latter is clearly the nature of the allegation against Constable Armstrong. There is little question to us that such conduct on the part of an officer either on or off duty could be considered “reprehensible”, “inappropriate” and “bring discredit upon the reputation” of a police service.

47. All allegations against Constable Armstrong were subject to proof. This included “kissing and hugging [P.]”. An acknowledgment of this occurred in the voluntary statement given by Constable Armstrong during his video interview of November 23, 2000. This interview occurred after Constable Armstrong was advised of his Charter rights and he waived his right to counsel. Further, during the course of the disciplinary proceeding, Constable Armstrong had the opportunity to testify to provide an explanation for both these remarks and his conduct. He chose to do so. That being the case, we cannot see how natural justice has not been satisfied.

48. For the purpose of the disciplinary proceeding Constable Armstrong elected to be represented by agent. As the Commission noted in Gateman and London Police Service at page 16:

Officers who are facing potential disciplinary concerns can be represented by either lawyer or agent. Either way the expectation is that any representative will competently assist their clients and respect the process. The presence or absence of representation does not, in itself, impair the validity of the outcome.

49. For a decision to be overturned on the basis of the performance of a representative, it is necessary for an appellant to show incompetence that resulted in a miscarriage of justice. Further it must be demonstrated that the decision might have been different had the representative performed adequately. This has not been done.

50. This brings us to the question of the Hearing Officer’s application of the burden of proof. The burden in police disciplinary matters is “clear and convincing evidence”. This is prescribed in law by section 64(10) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”). As was noted in Carmichael and Ontario Provincial Police (unreported, May 21, 1998, O.C.C.P.S) at page 6 this means “weighty, cogent and reliable evidence upon which a trier of fact acting with care and caution come to a reasonable conclusion that an officer is guilty of misconduct” This is different from the traditional criminal burden of proof.

51. The standard of proof established by the Act for disciplinary proceedings does not vary depending on the penalty sought. As the Commission noted in Mower and Hamilton-Wentworth Regional Police Service (unreported, 18 March, 1999, O.C.C.P.S.) at page 6 section 64(10) does not create a “sliding scale of the standard of proof”. We are satisfied the Hearing Office both understood and applied the correct test in this case.

52. Other issues raised concern the Hearing Officer’s assessment of credibility and treatment of the evidence. On such matters, it is a well-established principle that an appellant authority should only intervene if the Hearing Officer has made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it.

53. As was noted in Williams and Ontario Provincial Police 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 that of 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.

54. Matters of credibility and finding of fact are within the Hearing Officer’s domain. Only in exceptional cases, where the reasoning is self-evidently wrong, contain clear error or cannot reasonably be accepted, will the Commission interfere with conclusions. The question for us is whether or not the decision of the Hearing Officer was without evidentiary foundation or demonstrated manifest error in principle.

55. It is obvious that the facts in this case were much in dispute. As was pointed out in detail by Mr. MacKenzie, there were great differences between the evidence of P. and Constable Armstrong. No doubt this made the Hearing Officer’s job a difficult one. It was his job, nevertheless. Accordingly, it is not surprising that the significant portion of his decision was devoted to reviewing the testimony of the various witnesses.

56. At the end of the day, having observed the key parties, heard their testimony and examined their previous statements, he found that the essential aspects of the evidence of P. (corroborated in part by her guidance counselor, vice-principal and prior statement of Constable Armstrong) was to be believed. He concluded that “[P.] was a vulnerable, inexperienced, and immature girl who was infatuated with a 35-year old police officer. Constable Armstrong took advantage of [P.’s] vulnerability for his own sexual gratification.” This finding cannot be said to be void of evidentiary foundation or the result of the application of different standards of credibility.

57. Further, we have no serious difficulty with the Hearing Officer’s exclusion of the letter of the Crown Attorney. Generally, the rules of evidence in disciplinary hearings are less strict than in criminal proceedings and hearsay evidence can be admissible. The letter in question expressed a ‘paper’ opinion about whether or not a criminal charge should proceed against Constable Armstrong. It was based on information from several individuals whom the Crown had never spoken to or met. All of these individuals appeared in person and testified and were cross-examined at the disciplinary proceeding. The Hearing Officer appears to have been of the view that he wished to make his own assessment of credibility based on this first hand information and observation. This strikes us as reasonable.

58. We also agree that the decision of the Hearing Officer to not permit cross-examination of [P.] on a prior allegation of sexual assault was correct. In some cases such cross-examination might be appropriate to demonstrate a pattern of fabrication. However, for this to occur there must be some evidence that the prior allegations had either been recanted by the complainant or were demonstrably inaccurate. There was no such evidence presented.

59. Given the above we are satisfied that the conviction must stand. That brings us to the question of penalty. The factors to be taken into account when imposing penalty at a disciplinary hearing are well established. There are three key elements to be taken into account. These include the nature and seriousness of the conduct in question, the ability to reform or rehabilitate the officer and the damage to the reputation of the police service that would occur if the officer remained on the force.

60. Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach to the conduct in question. As was noted in Reilly and Brockville Police Service (1997), 3 O.P.R. 1163 (O.C.C.P.S.) there are also other factors that can be relevant, either mitigating or aggravating the penalty, depending on the particular conduct in question. These include:

• employment history and experience
• recognition of the seriousness of the transgression, and
• handicap or other relevant personal consideration

61. As well, when imposing penalty it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency.

62. Our function on appeal is not to second-guess the penalty imposed by the Hearing Officer, even if we might have imposed a different disposition. Rather, our role is to assess whether or not the Hearing Officer fairly and impartially applied these principles and properly considered all relevant matters. Where there is manifest error in principle or the proper considerations are ignored we may vary a disposition.

63. The Hearing Officer in this case identified all the relevant sentencing factors and addressed each in turn. He concluded that the conduct in question was serious and contrary to the public interest. He found that it brought significant damage to the reputation of the service and was the type of behavior that needed to be deterred. He found no concerns with either handicap or management’s conduct. He noted positive aspects of Constable Armstrong’s employment history but found that they were “overshadowed by his extensive disciplinary record of (27) instances of counseling and (7) Police Services Act convictions”.

64. To our minds, all of these conclusions are reasonable. Clearly, it is unacceptable for a 34 year-old man to direct unwanted attention of a sexual nature to a 16-year old girl. This is particularly so in the face of a clear and blunt warning from a teacher that such conduct must stop. This is made all the worse when the attention comes from a man who was a known police officer who appears to have established trust by offering to provide police paraphernalia. In this respect, it makes no difference that the conduct in question was off-duty.

65. The Hearing Officer expressed reservations about the ability of Constable Armstrong to be reformed or rehabilitated. In this regard, he noted that no witnesses had been called on Constable Armstrong’s behalf to speak to the issue of his future usefulness as an employee. Further, in this regard the Hearing Officer had grave reservations about the fact that Constable Armstrong showed no recognition of the seriousness of the allegations against him, but rather saw himself as a victim of harassment by [P.]. He described this as ‘aggravating’.

66. On the latter point we note that it is a well-established principle that police officers are entitled to plead not guilty to disciplinary allegations. Assertions of innocence are not to be considered as ‘aggravating’ factors for the purposes of sentencing. Rather an officer is not entitled to the ‘mitigation’ that such an acceptance of responsibility would warrant.

67. The Hearing Officer in his decision makes no reference to the fact that Constable Armstrong plead ‘not guilty’, rather he focused his concern on Constable Armstrong’s view that he (a 34-year old police officer) was being ‘victimized’ by a 16-year old girl. While the Hearing Officer’s explanation on this point is not as clear as we might have liked to see, we are not satisfied that his treatment of this issue rises to the level of a manifest error in principle that would warrant overturning the penalty

68. This then leaves the issue of consistency of penalty. In this respect we note the case of Keefe and Ontario Provincial Police. That 1989 decision of this Commission concerned a 32-year old police officer found guilty of discreditable conduct. The conduct in question arose from the officer’s sexual involvement with the 14-year old daughter of a neighbor. The officer in question had been found not guilty of the criminal offence of sexual assault due to lack of proof ‘beyond a reasonable doubt’ that the girl in question had consented to the contact.

69. Constable Keefe was dismissed by the Hearing Officer and this penalty upheld by the Commission who found at page 839 that “this offence on its own renders Provincial Constable Keefe unsuitable to continue as a member of the force.” Given this, it cannot be said that the disposition imposed on Constable Armstrong was not in the range of those available to the Hearing Officer.

70. For the reasons noted above, the conviction and penalty stand.

DATED THIS 18th DAY OF JULY 2002.

E.E. Kelly Culin Michele Shephard

Member, OCCPS Member, OCCPS