Constable Norman Groot v. Peel Regional Police Service, 2002 CanLII 63879

ONTARIO CIVILIAN POLICE COMMISSION

DATE: April 5, 2002

FILE: OCPC-02-014

CASE NAME: CONSTABLE NORMAN GROOT 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 NORMAN GROOT APPELLENT

-and-

PEEL REGIONAL POLICE SERVICE RESPONDENT

DECISION

Presiding Members: Murray W. Chitra, Chair Barbara Morland Wellard, Member

Hearing Date: February 12, 2002

Appearances: Irwin Koziebrocki, Counsel for the Appellant Ian D. Scott, Counsel for the Respondent

1. This is an appeal from the penalty of dismissal (in the absence of resignation within seven days) imposed on Constable Norman Groot by Superintendent Susan Horner (the “Hearing Officer”) on February 27, 2001.

2. The penalty in question followed a finding of guilt on January 24, 2001 with respect to a single count of discreditable conduct contrary to section 2(1)(a)(ix) of the Code of Conduct found at Regulation 123, R.R.O. 1998 (the “Code”). That conviction is not in question.

Background:

3. The facts giving rise to this appeal are complex and span more than a decade.

4. Norman Groot joined the Peel Regional Police Service (the “Service”) in May of 1985 as a cadet. He was 19 years old. In November of 1987 he was appointed as a fourth class constable and thus became a police officer.

5. Constable Groot’s early work history as a police officer was not without problems. While his evaluations contain many positive comments, also documented are concerns about his general attitude, his difficulty in following procedures and guidelines, a need for supervision, lack of team play, carelessness, incomplete paperwork, an unwillingness to follow direction and occasional over-zealousness.

6. Some aspects of this behavior gave rise to discipline. For example, in October and November of 1990, while off duty, he identified himself as a police officer to both a private business and a bank official for the purpose of obtaining confidential information to assist him in collecting a personal debt. This resulted in the forfeiture of 24 hours pay following a guilty plea at a disciplinary hearing.

7. The events which give rise to the current proceedings occurred on December 15,1990. Early that morning, Constable Groot arrested a man in the parking lot of the Service’s 12 Division. The man was heavily intoxicated and Constable Groot believed that he was attempting to break into the car of a friend and fellow officer.

8. There was some resistance on the part of the accused. Constable Groot handcuffed the prisoner’s hands behind his back and used a restraint hold to direct him into the police station. Instead of taking the accused to the Criminal Investigation office (which would have been normal procedure), Constable Groot took him to the Youth Bureau.

9. While being directed into an interview room, part of the accused’s body struck a doorframe. In the unlit interview room, the accused’s head struck a desk with such force that a corner broke off. As a result, the prisoner received a number of lacerations to his face. One cut to the forehead went right to the skull. A total of ten woodchips from the desk were later removed. A second cut, equally deep, took six sutures to close. Constable Groot’s explanation to other officers who responded to the commotion was, “The fucking guy tripped.”

10. An investigation ensued, and on October 15, 1991, Constable Groot was charged with the offence of assault causing bodily harm contrary to section 267(1)(b) of the Criminal Code of Canada. On July 28, 1992, following a three day trial, he was found guilty by Mr. Justice Fortier. On October 5, 1992, Justice Fortier sentenced him to nine months imprisonment. Constable Groot was also prohibited from possessing firearms, ammunition or explosives for five years.

11. Constable Groot appealed. On January 5, 1995, the Ontario Court of Appeal set aside the conviction and ordered a new trial. On February 19, 1996, a motion was brought before Mr. Justice Carnworth to stay the proceedings on the basis of unreasonable delay and abuse of process. This motion was denied on February 21.

12. The second trial took place before Mr. Justice Hill over the course of 12 days in May and June of 1996. On August 22, 1996, Mr. Justice Hill found Constable Groot not guilty of assault causing bodily harm. This decision was appealed by the Crown. On September 14, 1998, the Ontario Court of Appeal set aside the acquittal and entered a conviction for common assault. The question of sentencing was remitted to the trial judge.

13. On October 6, 1998, the Service initiated disciplinary proceedings against Constable Groot. A further application for leave to appeal to the Supreme Court of Canada by the Crown on the criminal matter was refused. An appeal to the Supreme Court of Canada (as of right) by Constable Groot was dismissed on November 5, 1999.

14. On January 25, 2000, Constable Groot appeared before Mr. Justice Hill for sentencing. However, an issue arose concerning the interpretation of the order of the Court of Appeal. The specific question was whether or not the entering of a ‘conviction’ by the Court meant that Constable Groot could not be considered for a discharge. The matter was further adjourned and, on February 11, 2000, the Court of Appeal amended its original order to remove any references to a ‘conviction’ and directed that “a finding of guilt be entered for common assault”.

15. On February 25, 2000, Constable Groot reappeared before Mr. Justice Hill for sentencing. His decision contained a number of findings with respect to Constable Groot’s conduct. Specifically, he held that Constable Groot’s:

• actions represented an “unjustified assault upon a defenceless and shackled complainant” and was a “serious incident of violence by a person in a position of trust”.

• overall conduct reflected “an inappropriate attitude toward care of the complainant – either careless or deliberate mistreatment of the prisoner”.

• notebook and use of force report concerning this event were not accurate in that he “exaggerated his medical assistance to the complainant and deliberately under-described his prisoner’s injuries”.

• testimony at trial was not truthful in that he “fabricated a story of his prisoner tripping in the doorway of interview room four”.

16. It is clear that Mr. Justice Hill found Constable Groot’s actions on December 15,1990, to be cowardly, repugnant and reprehensible.

17. Mr. Justice Hill identified a number of factors in Constable Groot’s favour. These included that he:

• was a first offender with no “suggestion of a pattern of abusive conduct toward prisoners generally.”

• was “a young and relatively inexperienced constable at the time of the offence.”

• had matured in the past nine years, studied extensively, completed an undergraduate degree from the University of Waterloo, a law degree from the University of Western Ontario and the Bar Admission Course and “demonstrated himself to be a person of present good character.”

There was also positive reference to Constable Groot’s community work, participation in the activities of his church and general rehabilitation.

18. Mr. Justice Hill sentenced the Appellant to time served (three days of pre-sentence custody) with 18 months probation. Constable Groot was also directed to perform 60 hours of community service and pay a $2,500 victim surcharge. Mr. Justice Hill indicated that he would have imposed a further period of imprisonment but for two factors. The first was a conclusion that the three days that Constable Groot (as a peace officer) had spent in custody should be treated as the equivalent of “one week of pre-sentence custody credit”. The second factor related to the anxiety and stress experienced by Constable Groot and his family having to wait nine years for a final decision from the criminal justice system.

19. A number of months later, on August 29, 2000, Constable Groot appeared before a panel of Benchers of the Law Society of Upper Canada to determine whether or not he should be admitted to the bar. In oral reasons, dated November 3, 2000, the panel ruled: “ … we find the applicant to be of good character and recommend his immediate admission to the Law Society.”

Hearing:

20. Constable Groot appeared before the Hearing Officer, on January 22, 2001, to face the allegation that he had contravened section 2(1)(a)(ix) of the Code. That provision states that any police officer “guilty of an indictable offence or a criminal offence punishable on summary conviction” commits discreditable conduct.

21. Constable Groot pled not guilty to the disciplinary charge. This was followed by a series of arguments relating to the wording of the Statement of Particulars and the necessary elements to prove the allegation. On January 24, 2001, the Hearing Officer found Constable Groot guilty. This was followed by several days of hearings directed at the question of sentencing.

22. A number of witnesses appeared on Constable Groot’s behalf. The first was Stephen Jenkinson. Mr Jenkinson is a psychotherapist with degrees in sociology and theology. Part of his employment included conducting investigations for the Children’s Lawyer and providing assessments of the risk of domestic violence. He interviewed Constable Groot on two occasions in October of 2000. He expressed the opinion that Constable Groot was not violent or aggressive.

23. Other witnesses included former coworkers (Constable Sean Scott, Constable Charles Bartram, and David Griffin), fellow law students (David Nowak, Mark Poland and Craig Brysen) and articling principals (Robert Reuter and Frank Bowman). They all spoke positively of Constable Groot’s work ethic, maturity, dedication, character and integrity.

24. As well, the Hearing Officer received into evidence various portions of Constable Groot’s personnel file and a number of written references submitted on his behalf. One reference of note was from the Honourable Madam Justice Eileen Gillese (the former Dean of the Faculty of Law of the University of Western Ontario). She described Constable Groot as “one of the most honest, decent students I have met in my 16 year teaching career” and “one of the finest people and law students I have ever had the good fortune to encounter”.

25. Following the presentation of evidence, the Hearing Officer received a day and a half of submissions and adjourned on January 30, 2001. On February 27, 2001, she delivered her decision. The penalty was “Dismissal within seven (7) days, unless Constable Groot resigns before that time.”

Appellant’s Position:

26. Mr. Koziebrocki, on behalf of the Appellant, took issue with the penalty imposed by the Hearing Officer. He expressed the view that the Hearing Officer failed to properly apply the principles of evidence in arriving at a disposition.

27. Specifically, Mr. Koziebrocki argued that the Hearing Officer erred by:

28. concluding that the Appellant’s failure to admit responsibility was a factor to be weighed against him;

29. concluding that the Appellant could no longer perform the duties of a police officer given his criminal conviction;

30. taking too narrow a view of the Appellant’s academic life and achievements;

31. failing to give proper consideration to the many positive changes in the Appellant’s life over the past ten years (i.e. maturity, secure marriage and family, publication of a book on private investigators, admission to the bar …); and

32. concluding that dismissal was the only possible penalty for an officer convicted of a criminal offence.

33. He asked that we set aside the order of dismissal and impose a lesser penalty.

In support of these arguments, Mr. Koziebrocki brings to our attention a number of cases. These included: Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.), Walker and Peel Regional Police Service (November 6, 2000, O.C.C.P.S.), Regina v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.), Regina v. Valentini (1999), 132 C.C.C. (3d) 252 (Ont. C.A.), Peel Regional Police Service and Kirk (January 27, 1993, Hearing Officer Young), Lingl and Calgary Police Service (1993), 1 P.L.R. 345 (A.L.E.R.B.), Sutton and Barrie Police Force (1982), 2 O.P.R. 552 (O.P.C.), Schofield and Metropolitan Toronto Police Service (1984), 2 O.P.R. 613 (O.P.C.) and Regina v. Ghorvei (1999), 138 C.C.C. (3d) 340 (Ont. C.A.).

29. As well, with the consent of Mr. Scott, we were provided with new or additional evidence. This included proof of Constable Groot’s recent completion of the requirements and designation as a Certified Fraud Examiner and the table of contents from his book entitled “Canadian Law and Private Investigations”.

Respondent’s Position:

30. Mr. Scott, on behalf of the Respondent, argued that the Hearing Officer had ample evidence before her to conclude that Constable Groot was unfit for service as a police officer. Further, he suggested that the Hearing Officer properly applied the established principles before ordering dismissal.

In response to the specific issues raised, Mr Scott argued:

• the failure to admit guilt or assume responsibility is a relevant and proper consideration for sentencing;

• the serious nature of the Appellant’s crime and the impact that it would have on his credibility would impair his ability to testify in future criminal proceedings and thus his ultimate fitness to remain as an employee; and

• the Hearing Officer gave proper weight to the Appellant’s work history and subsequent academic achievements.

31. He suggested that the Commission should only interfere with a penalty when it is satisfied that it is clearly unfit. He concluded by stating that the penalty of dismissal in this case is appropriate in the circumstances and should not be disturbed.

32. In support of these arguments, Mr. Scott brought a number of cases to our attention. These included: Re Trembley et al. and Fleming et al. (1998), 55 O.R. (2d) 270 (Ont. C.A.), Toronto (Metropolitan) Police Complaaints Board and Neeley and Weller [1987], O.J. 1966 (Ont. Div. Ct.), Bright v. Konkle (1997), 2 P.L.R. 481 (Ont. Bd. Inq.), Hinds and Ontario Provincial Police (1990), 2 O.P.R. 820 (O.P.C.), Morden and Peel Regional Police Service (1997), 3 O.P.R. 1140 (O.C.C.P.S.), Regina v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.), Regina v. B.J.H. [2000], O.J. 279 (Ont. C.A.) and Regina v. Schropshire (1995), 1995 CanLII 47 (SCC), 102 C.C.C. (3d) 193 (S.C.C.).

Decision:

33. The factors to be taken into account when imposing penalty at a disciplinary hearing are well established. In Williams and Ontario Provincial Police this 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.

34. Further considerations can include the need for deterrence, provocation or concerns arising from management’s approach to the conduct in question.

35. 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 which can be relevant, either mitigating or aggravating the penalty, depending on the particular conduct in question. These include the officer’s:

• employment history and experience,

• recognition of the seriousness of the transgression, and

• handicap or other relevant personal consideration.

36. In addition, when imposing penalty, it is important to take into account prior disciplinary cases dealing with similar types of misconduct. This is to ensure consistency. Schofield and Metropolitan Toronto Police Service

37. In the case at hand, the Hearing Officer clearly identified the relevant factors and addressed each, in turn, in her decision. Our function is not to second-guess that decision, even if we might have imposed a different disposition. Bright v. Konkle 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 then we may vary a disposition. Quintieri and Toronto Police Service (October 29, 2001, O.C.C.P.S.) This is not lightly done. Allen and Hamilton-Wentworth Police Service (1995), 2 O.P.R. 101 (O.C.C.P.S.)

38. It is clear that police officers, whether on or off duty should not be threatening harm to others or engaging in assaultive behavior. Such conduct is discreditable, warrants discipline and must be deterred. Gulliver and Brantford Police Service (1997), 3 O.P.R. 1175 (O.C.C.P.S.) This is particularly the case, where a police officer assaults an intoxicated, handcuffed and helpless prisoner at a police station. This is highly damaging to the reputation of a police service. We agree with the Hearing Officer’s conclusion that, “What occurred was a serious deviation from the professional behaviour expected and demanded by the public of an officer and of every member of this service.”

39. As was noted in Gladish v. Byers (1992), 1 A.L.E.R.B.J. 55 at page 61: “Excessive use of force by a police officer which causes bodily harm, is one of the most serious forms of police misconduct. It must be made clear to the few who engage in such misconduct that serious penalties are likely to follow proof of such an event.” Absent substantial mitigating factors, such conduct can warrant dismissal.

40. Such mitigating factors were identified in Gulliver. That case concerned an off-duty Brantford constable who assaulted a contractor whom he believed had stolen two rings from his home. The officer was initially dismissed. The Commission varied the penalty to demotion to 4th class constable.

41. The reasons are contained at page 1180:

The officer in question has a lengthy unblemished good service record. He has no reputation for aggressive conduct. His supervisors view this as an isolated incident that they do not see as likely to reoccur. They have no reservations about his ability to continue his duties. The officer sought counseling, tendered an unqualified apology to his victim, and accepted responsibility for his actions in both criminal and disciplinary proceedings.

His victim has forgiven him.

It is our view that these cumulative factors did not receive sufficient consideration by the Hearing Officer or Board. In light of these factors we do not feel that the officer’s usefulness to the service is over. We wish to indicate however, that absent any one of them, our conclusion would have been different.

42. How does this compare to the facts of this case?

It is clear that prior to the event in question that the Appellant had only a brief and not particularly distinguished employment history. We agree with the Hearing Officer’s assessment that it “suggests carelessness, disregard for some of the finer but important issues of policing, lack of foresight with respect to actions which relate to responsibility and accountability.” That being said, Constable Groot does not appear to have a reputation for aggressive conduct.

43. The Hearing Officer certainly received evidence from a number of Constable Groot’s former fellow officers who spoke well of him and indicated a willingness to work with him again. However, none of Constable Groot’s supervisors testified. There is no suggestion of handicap. There has never been an apology to the victim. There is no indication of forgiveness. There is no indication of improper management conduct.

44. There is no direct acknowledgment of responsibility on the part of Constable Groot for his conduct. In the words of the Hearing Officer: “All witnesses that testified indicate that Constable Groot has maintained the incident was an accident … He regrets the incident, the injuries to [the accused] and that it ever happened. I am certain that he does… Through Constable Groot’s witnesses I am hearing he does not believe he has done anything wrong.”

45. Constable Groot was certainly not obliged to plead guilty to either the criminal or disciplinary allegation. Like every other citizen he was entitled to make full answer and defense. How is this to be viewed in the context of imposing a disciplinary penalty?

46. In Walker and Peel Regional Police Service the Commission stated at page 8:

The Hearing Officer made a point of noting in his decision that Constable Walker did not plead guilty in his criminal trial and in fact denied any culpability under oath. In our view Constable Walker was certainly entitled to plead not guilty at his criminal proceedings. The fact that he was found guilty after making such a plea does not give rise to an aggravating factor for disciplinary penalty purposes. Rather, Constable Walker is not entitled to the mitigation that a guilty plea or apology would warrant. This does not mean that other potentially mitigating factors cannot be considered.

In the case at hand, the Hearing Officer expressed “concern” that Constable Groot continued to view these events as an “accident” as opposed to a “transgression”, did not appear to have accepted the court’s final decision and that “there is still no admission of responsibility for what occurred”.

47. We are not convinced that the Hearing Officer’s expressions of “concern” about Constable Groot’s perception of events is a clear indication that she treated his failure to plead guilty (and thus accept responsibility) as an aggravating factor for the purpose of imposing a more harsh disposition. Overall, to our mind, the language used in the decision on this point does not rise to the level of a “manifest error in principle”. That being said, Constable Groot’s conduct in this regard entitles him to no possible mitigation of penalty on this issue.

48. That then raises the issue of the impact of Constable Groot’s conviction. Mr. Koziebrocki suggests that the Hearing Officer erred in principle by concluding that Constable Groot could no longer perform the duties of a police officer given that conviction. In response, Mr. Scott argued that any criminal conviction has the potential to render a police officer unfit to remain an employee. The concerns in this regard focused on the difficulty that Constable Groot might confront if he were obliged to testify as a witness in future criminal proceedings.

49. The simple fact that a police officer may have been found guilty or convicted of one of many thousands of possible criminal offences does not automatically mean that that individual cannot continue to serve as a police officer. The seriousness of each transgression must be weighed and assessed against the factors identified above.

Section 42(1)(e) of the Police Services Act R.S.O. 1990, c. P. 15 as amended states that one of the essential duties of all police officers is “laying charges and participating in prosecutions”. In order to effectively fulfill this duty an officer will be required from time to time to testify in criminal court. The acceptance by any court of an officer’s testimony will in large measure turn on the court’s assessment of that officer’s credibility.

50. The credibility of a witness is subject to challenge on cross-examination. Section 12 of the Canada Evidence Act R.S.C. 1985, Chap. C-5 as amended states:

12(1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding an offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on indictment.

51. This applies to criminal proceedings.

Such information may be used to impeach the trustworthiness of a witness. However, the probative value will vary not only with the type of conviction, but also the number and proximity in time to when the witness gave evidence. A recent conviction for a serious crime of dishonesty will likely seriously affect the value of a witness’ evidence. A single old conviction for a minor matter is unlikely to do so.

52. Constable Groot was convicted and found guilty, on February 25, 2000, of common assault. The Court described the incident in question as a serious breach of trust. As well, Mr. Justice Hill restated his conclusion that at trial Constable Groot “fabricated” certain aspects of his testimony and had prepared official reports that were deliberately inaccurate.

In her decision the Hearing Officer stated:

There is no doubt that his criminal conviction would be at the forefront each time he testifies in a criminal trial up until the time he can obtain a pardon. If the matter is not commonly known now by criminal defense lawyers, it would be. The circumstances of the matters relating to the conviction can be delved into and because they deal with the arrest and treatment of a prisoner in his custody, undoubtedly would be an issue in most, if not all of the charges he was involved in. Each time it occurs it will further damage the reputation of this service. I do not see how it cannot. I also must balance this with the fact that in some, if not many of the cases, it is possible that Constable Groot could withstand this cross examination and not have his credibility dismissed by the trial judge.

The Hearing Officer concluded that this “definitely would affect his usefulness to this service.”

53. To our mind, this is a reasonable assessment and cannot be taken as a manifest error in principle. Regardless of assignment, it is the duty of all police officers to testify in criminal court. It is a key component of their employment. Constable Groot’s conviction may not prevent his evidence from being accepted in certain cases. However, it opens him to serious challenge in any trial in which he becomes involved. This clearly affects his potential usefulness to his employer.

54. This leaves what is perhaps the most difficult aspect of this case: the question of rehabilitation. In October of 1992, Constable Groot was suspended from duty. Apart from a few weeks in 1996, he has not worked as a police officer for almost a decade. Accordingly, it is not possible to determine how he might have continued to perform his duties as a police officer.

55. This aside, Constable Groot appears to have used this time productively. He has obtained two university degrees, written a book and been called to the bar. He has been a good student. He has the respect of many fellow students, teachers and legal colleagues. In the words of Mr. Justice Hill, “He has demonstrated himself to be a person of present good character.” The Hearing Officer ‘applauded’ these accomplishments and found the Appellant to be “of good character today”.

56. That being said, the Hearing Officer appears to have concluded that this alone, in the absence of other significant mitigating factors, was insufficient in her mind to warrant a penalty other than dismissal. While we might have concluded otherwise, if the matter was ours to determine in the first instance, we are not satisfied that this assessment is so patently unreasonable or incorrect in principle that it should not be permitted to stand.

Accordingly, the appeal against penalty is denied.

DATED THIS 5th DAY OF APRIL, 2002

Murray W. Chitra Chair, OCCPS

Barbara Morland Wellard Member, OCCPS